March-April 2017 by Colorado Medical Society

March/April 2017

Volume 114, Number 2

Mega mergers blocked Courts weigh in favor of protecting consumers and providers Award-winning publication of the Colorado Medical Society

contents March/April 2017, Volume 114, Number 2

Cover story Federal trial court

judges, in tough-worded opinions, blocked in back-to-back sequence the mega-mergers proposed by Anthem-Cigna and AetnaHumana. On Jan. 23, U.S. District Judge John Bates ruled against Aetna, and on Feb. 8 U.S. District Judge Amy Berman Jackson, citing similar anticompetitive concerns as Judge Bates, ruled against Anthem. The collective work on both mergers between the American Medical Association, Colorado Medical Society and other state medical associations in the Block the Mergers Coalition is a model for future advocacy success. Read more starting on page 10.

Inside CMS

5 President’s Letter 9 Executive Office Update 39 COPIC Comment 40 Reflections

Departments 42 44

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Colorado Medicine for March/April 2017

Features. . . 20

Anthem merger appeal–Anthem appeals the blocked merger and the AMA sounds the alarm about “political influence” in a potential new Anthem-Cigna deal.

AMA National Advocacy Conference –CMS members and staff traveled to Washington, DC, to advocate for federal health care reform.

Legislative update –CMS is far into the 2017 state legislative session, advocating for a series of managed care reforms.

United-Rocky merger–The insurance commissioner approved UnitedHealthcare’s acquisition of Rocky Mountain Health Plans, with conditions advocated by CMS.

Colorado QPP Coalition–CMS is part of a new coalition to help Colorado physicians and practices prepare for changes resulting from MACRA, the new approach to Medicare payment.

Introducing ProPractice –The El Paso County Medical Society has expanded to become a full-service adjunct to provide nonclinical services to physician practices.

Whole-person care –The Colorado State Innovation Model (SIM) looks to recruit an additional 150 practices for its second cohort to integrate behavioral health and primary care.

Central Line–CMS launched Central Line in November 2016 to connect member opinions directly to the boardroom and has already seen impressive member engagement.

Physician Leadership Skills Series–CMS kicked off PLSS in February, helping members deepen and develop skills on giving and receiving feedback and leveraging social capital. Join us for other programs throughout the year.

Final Word–Immediate Past President Michael Volz, MD, talks about the effort to block the health insurance megamergers and why this was a tremendous win for physicians and patients.

C OLOR A D O M EDICA L S O CI ET Y 7351 Lowry Boulevard, Suite 110 • Denver, Colorado 80230-6902 (720) 859-1001 • (800) 654-5653 • fax (720) 859-7509 • www.cms.org

OFFICERS, BOARD MEMBERS, AMA DELEGATES, and STAFF

2017 Officers Katie Lozano, MD, FACR President M. Robert Yakely, MD President-elect Michael Volz, MD

Treasurer

Alfred D. Gilchrist Chief Executive Officer

Board of Directors Cory Carroll, MD Curtis Hagedorn, MD Mark B. Johnson, MD Richard Lamb, MD David Markenson, MD Halea Meese, MS Gina Martin, MD Patrick Pevoto, MD, RPh, MBA Brandi Ring, MD Charlie Tharp, MD Kim Warner, MD C. Rocky White, MD Kelley D Wear, MD

AMA Delegates A. “Lee” Morgan, MD M. Ray Painter Jr., MD Lynn Parry, MD Brigitta J. Robinson, MD AMA Alternate Delegates David Downs, MD Jan Kief, MD Katie Lozano, MD Tamaan Osbourne-Roberts, MD AMA Past President Jeremy Lazarus, MD

Michael Volz, MD Immediate Past President COLORADO MEDICAL SOCIETY STAFF Executive Office Alfred Gilchrist, Chief Executive Officer, Alfred_Gilchrist@cms.org Dean Holzkamp, Chief Operating Officer, Dean_Holzkamp@cms.org Dianna Fetter, Director, Professional Services, Dianna_Fetter@cms.org Tom Wilson, Manager, Accounting, Tom_Wilson@cms.org

Division of Health Care Financing Marilyn Rissmiller, Senior Director, Marilyn_Rissmiller@cms.org

Division of Communications and Member Benefits Kate Alfano, Communications Coordinator, Kate_Alfano@cms.org Mike Campo, Director, Business Development & Member Benefits, Mike_Campo@cms.org

Division of Government Relations Susan Koontz, JD, General Counsel, Senior Director, Susan_Koontz@cms.org Adrienne Abatemarco, Program Manager Adrienne_Abatemarco@cms.org

Division of Health Care Policy Chet Seward, Senior Director, Chet_Seward@cms.org JoAnne Wojak, Director, Continuing Medical Education, JoAnne_Wojak@cms.org

Division of Information Technology/Membership Tim Roberts, Senior Director, Tim_Roberts@cms.org Tim Yanetta, Coordinator, Tim_Yanetta@cms.org

Colorado Medical Society Foundation Colorado Medical Society Education Foundation Mike Campo, Staff Support, Mike_Campo@cms.org

COLORADO MEDICINE (ISSN-0199-7343) is published bimonthly as the official journal of the Colorado Medical Society, 7351 Lowry Boulevard, Suite 110, Denver, CO 80230-6902. Telephone (720) 859-1001 Outside Denver area, call 1-800-654-5653. Periodicals postage paid at Denver, Colo., and at additional mailing offices. POSTMASTER, send address changes to COLORADO MEDICINE, P. O. Box 17550, Denver, CO 80217-0550. Address all correspondence relating to subscriptions, advertising or address changes, manuscripts, organizational and other news items regarding the editorial content to the editorial and business office. Subscriptions are available for $36 per year, paid in advance. COLORADO MEDICINE magazine is the official journal of the Colorado Medical Society, and as such is also authorized to carry general advertising. COLORADO MEDICINE is copyrighted 2006 by the Colorado Medical Society. All material subject to this copyright appearing in COLORADO MEDICINE may be photocopied for the non-commercial purpose of education and scientific advancement. Publication of any advertisement in COLORADO MEDICINE does not imply an endorsement or sponsorship by the Colorado Medical Society of the product or service advertised. Published articles represent the opinions of the authors and do not necessarily reflect the official policy of the Colorado Medical Society unless clearly specified. Alfred D. Gilchrist, Executive Editor; Dean Holzkamp, Managing Editor; Kate Alfano, Assistant Editor; Chet Seward, Assistant Editor. Printed by Hampden Press, Aurora, Colo.

Inside CMS

president’s letter Katie Lozano, MD, FACR President, Colorado Medical Society

Working together on prescription drug abuse prevention As soon as Gov. John Hickenlooper publicly announced that reducing opioid misuse and abuse in Colorado would be one of his winnable battles, the Colorado Medical Society gave the governor our full cooperation and support in this worthwhile and overdue effort. Solving the opioid crisis is and will continue to be a substantial focus and a critical task for our medical society, and we are committed to solving this crisis for the people of Colorado. Leading our efforts is the CMS Committee on Prescription Drug Abuse. In late February, our committee and CMS leadership met with Kyle Brown, PhD, senior health policy advisor to Gov. Hickenlooper, and Larry Wolk, MD, MSPH, executive director and chief medical officer of the Colorado Department of Public Health and Environment, to identify and recommend mechanisms to accelerate current efforts to combat the opioid crisis. Our lieutenant governor, Donna Lynne, recently completed a tour of 54 rural counties in our state where opioid misuse and abuse was routinely identified as a crisis issue. Continuing to recognize this crisis as a top priority, the committee met for an intense brainstorming exercise to identify additional workable solutions. Rob Valuck, PhD, chair of the Colorado Consortium for Prescription Drug Abuse Prevention, was honored at the meeting for his extensive work on this issue in partnership with CMS and his input was greatly appreciated. We also had many subspecialty groups represented at the meeting providing their input on how best to solve this problem. The resulting proposed solutions reflect the group’s many years of experience and Colorado Medicine for March/April 2017

their expertise in patient care, pain management and addiction medicine. The goal was to find consensus and engagement on active solutions, and the members of the committee and guests were clearly engaged to achieve this goal. 1. Support the concept of Schedule II controlled substance partial fills. One strategy to reduce diversion of legally prescribed opioids is to ensure that patients are prescribed the lowest effective dose for the shortest expected duration for expected pain following an acute injury or medical procedure. Some patients may not require medication for the full duration of expected pain. Patients and prescribers should be allowed to request a partial fill of a Schedule II controlled substance. It’s critical to avoid diversion of legally prescribed opioids because 75 percent of people who are newly addicted to opioids obtained access to those opioids from a friend or family member, according to the 2014 National Survey on Drug Use and Health. 2. Ensure compliance with the Substance Use Disorders Essential Health Benefits (EHB) provision of the Affordable Care Act. There is broad evidence supporting the benefits of treatment for substance use disorders, but also similar evidence that the treatment often is lacking. An important step in state policy development should be a more aggressive focus on comprehensive treatment efforts. The federal Affordable Care Act provides that treatment for substance use disorders is an Essential Health Benefit (EHB). The Prescription Drug Abuse committee recommends that the Exec-

utive Branch ensure that the Colorado Division of Insurance is evaluating and proactively monitoring whether payers are providing the substance use disorder EHB, that the DOI is enforcing against payers who are not providing this to patients, and that payer networks provide adequate access to treatment from an addiction and mental health specialist for patients with substance use disorders in compliance with the EHB. 3. Support CMS working in the 2017 General Assembly and in coordination with the Executive Branch to identify and appropriate the necessary funds to upgrade the Prescription Drug Monitoring Program (PDMP) into a highly functional clinical tool. The Colorado PDMP is inadequately funded, and the lack of funding directly impacts the functionality and use of the system at the point of care. A national survey of PDMPs shows that those systems that are easiest to use are also most effective in terms of the number of clinicians accessing them. These high-performing PDMPs are also well funded to allow for improvements in functionality. 4. Support continuing medical education goals in 2017. The Prescription Drug Abuse committee supports continued CMS partnership with the Colorado Consortium for Prescription Drug Abuse Prevention, COPIC, the University of Colorado School of Public Health and other stakeholders to accelerate responsible opioid prescribing CME courses to Col-

President's letter (cont.) orado physicians, building on successful programs of the past. 5. Support state legislation to provide the tools to fight the opioid crisis. The Prescription Drug Abuse committee supports two bills under consideration by the state legislature: One that creates a pilot program in certain areas of the state that experience high levels of opioid addiction to award grants to increase access to medication-assisted treatment (MAT), and another that would allow funding to improve the PDMP and allow pharmacists as well as providers to contribute financially to the maintenance and operation of the program. These recommendations went before the CMS Board of Directors on March 10 and were approved. I am grateful to all participants of the meeting and it is my hope that we seize this opportunity to accelerate the progress that is already underway in Colorado. n The CMS Committee on Prescription Drug Abuse convened a meeting with Kyle Brown, PhD, senior health policy advisor to Gov. Hickenlooper, bottom photo, left. Not pictured: Larry Wolk, MD, MSPH, executive director and chief medical officer of the Colorado Department of Public Health and Environment.

Colorado Medicine for March/April 2017

Inside CMS

executive office update Alfred Gilchrist, CEO Colorado Medical Society

A “marriage of convenience” from the beginning Notwithstanding a withering, sharply worded opinion by federal Judge Amy Berman Jackson on Feb. 8 blocking Anthem’s proposed merger with Cigna (see “In their words,” pages 13-14), Anthem attorneys in a Delaware Court of Chancery on Feb. 15 asserted that the company expects to close its transaction with Cigna through “resolution with a new DOJ” and that its prospects for a timely closing are enhanced by a “supportive” Vice President Mike Pence. Never mind that Cigna sued Anthem on Feb. 14, according to Bloomberg News, to terminate the merger for trying to undermine its business by stealing confidential information and harassing its customers. “Anthem’s destructive conduct must come to an end,” Cigna said in the lawsuit, which seeks to recover a $1.85 billion break-up fee and $13 billion in damages. Anthem responded with its own suit to compel Cigna to remain at the altar. The Anthem-Cigna deal has been a “marriage of convenience” from the beginning. Marked by accusations between the lawyers and the company’s top executives throughout, they should have asked for a jury instead of a judge. Not that in hindsight it would have provided a different result. Instead, they have decided to pursue a flanking maneuver to undermine the judicial process with a transparently political ask, not unlike Aetna threatening the previous administration with dropping out of the exchanges in 17 markets if the DOJ moved to block their merger with Humana. The AMA appropriately raised the alarm with then-acting Attorney General Brent Snyder on Feb. 28, stating, Colorado Medicine for March/April 2017

“We find it implausible that the U.S. Department of Justice (DOJ), eleven states, and the District of Columbia – that have diligently and successfully prosecuted this antitrust case – could now be swayed to allow this merger to close pursuant to politically-driven settlement negotiations as Anthem has suggested.” We immediately joined the AMA by asking Colorado Attorney General Cynthia Coffman, a co-plaintiff with U.S. DOJ, to reject any offers to settle the litigation. (See more details on page 20.) These types of “marriages” are not inexpensive nor are their consequences inconsequential. The Associated Press (AP) reports that the four companies involved in the mega-mergers have “cumulatively spent about $1.5 billion on legal and financial services since their proposed mergers were announced in summer of 2015,” according to documents filed with the Securities and Exchange Commission. Aetna is reported to have spent $775 million, and Anthem $421 million. For that cost, 378,000 Coloradans could have received a year’s worth of silver-planlevel health insurance on the Connect for Health Colorado marketplace. Instead, according to the AP, consumers will pick up the $1.5 billion mega-merger tab in the form of higher premiums.

extremely high levels of dissatisfaction with critical aspects of the current multi-payer system. They want the hoops and hassles that are interfering with everyday care of patients to be eliminated. The payers have legitimate issues that also need attention. The multi-payer system is going to be around for a while, and our preferred path forward is respectful, mutually beneficial dialogue and problem-solving with the companies. Once again we say, “Let’s get back to work.” Until then, we’ll continue to take our case to the General Assembly (see pages 24-25), regulators and the court of public opinion. n

CMS members continue to express 9

Mega mergers blocked Courts weigh in favor of protecting consumers and providers

Cover Story increased from 74 percent to 83 percent. By comparison, the four firm concentration ratio for the airline industry – well known as a relatively concentrated sector – is 62 percent. Under the U.S. Department of Justice/Federal Trade Commission merger guidelines, the proposed mergers were presumed to enhance market power in a vast number of commercial and Medicare Advantage markets. The lost competition through the proposed mergers would likely have been permanent because of persisting high barriers to entry and health insurance markets. For consumers this would likely result in premium increases and a reduction in health plan quality. For physicians, the consolidation – and most especially the Anthem-Cigna merger –would result in lower reimbursements.

Henry Allen, JD In July 2015, the health care community was stunned when four of the five largest health insurers in the United States announced mergers. Anthem said it was acquiring Cigna, and Aetna claimed it would acquire Humana, thereby reducing the “Big Five” health insurers (that includes competitor UnitedHealthcare) to become the “Remaining Three.” Immediately, the American Medical Association, Colorado Medical Society and a number of other state societies mobilized to engage in what turned out to be more than an 18-month-long third-party advocacy campaign to stop the mergers before the Antitrust Division of the U.S. Department of Justice, state attorneys general, state insurance commissioners, Congress and now, in the U.S. Court of Appeals. Among the most prominent AMA partners in this effort was the Colorado Medical Society. Health insurer markets require more, not less, competition So why has this advocacy been important? The proposed mergers were occurring in markets where there had already been a near-total lapse of competition. Between 2006 and 2014, the national four firm concentration ratio (the collective market share of the four largest insurance carriers) Colorado Medicine for March/April 2017

Should lower payments to physicians redeem an otherwise anticompetitive merger? The ultimate objective of the antitrust laws is to protect consumer welfare. Thus, the question the American Medical Association and the Colorado Medical Society had to address to the satisfaction of state and federal antitrust enforcers – and they in turn would have to resolve to the satisfaction of a court – was whether the lower physician payments achievable in a merger are a consumer benefit that outweighs the lost competition resulting from the merger in health insurance markets. As discussed below, this issue is being squarely addressed in the Anthem-Cigna merger that is now before the U.S. Court of Appeals for the District of Columbia Circuit. What that court decides will have significant reimbursement ramifications for physicians, especially given the widespread perception within the healthinsurer-financial-analyst community that health insurers are driven to merge for the purpose of gaining negotiating leverage over providers and thus a durable cost advantage over competitors. But before explaining the status of that strategy in the Anthem appeal, we turn to our successful antitrust challenge to the Aetna-Humana merger. We can celebrate our successful challenge of the AetnaHumana merger

On Jan. 23 of this year and following a 13day trial, the District Court for the District of Columbia ruled that Aetna’s proposed acquisition of Humana violated the antitrust laws and accordingly, blocked the merger. The Aetna case is historic. It is one of only two antitrust health insurer merger cases that the Department of Justice has ever tried, the other being the Anthem-Cigna merger challenge. Soon after the Aetna court’s decision to block the merger, Aetna threw in the towel, deciding not to appeal and to pay Humana a $1 billion breakup fee pursuant to the merger agreement. Wall Street analysts now speculate that Humana could be a target for Cigna or Anthem, assuming for antitrust reasons they cannot close their own deal. The absence of an appeal in Aetna-Humana – the first DOJ antitrust challenge to a health insurer merger ever tried – means that the precedent-setting antitrust opinion favoring the government and spanning 156 pages will not be disturbed. Thus we are better equipped to resist future mergers. Why was challenging the Aetna-Humana merger important? The blocking of the Aetna-Humana merger was a big deal, apart from the fact that the acquisition price was $34 billion. Had the government not won, the merger would have had dire consequences in Medicare Advantage (MA) markets. According to a recent Commonwealth Fund study, 97 percent of MA markets are highly concentrated and therefore are characterized by a lack of competition. The merger would have combined one of the two largest insurers of Medicare Advantage (Humana) with the fourth largest (Aetna) to form the largest MA insurer in the country. Aetna has been growing rapidly in Medicare Advantage. The merger would have ended the growing head-tohead competition between Aetna and Humana in a staggering number of MA markets. The government alleged that the merger violated antitrust law in the Medicare Advantage markets of 364 counties. Aetna and Humana are also two of the

Cover story (cont.) largest insurers in the individual commercial insurance market on the public exchanges. At the time of the announced merger, Aetna sold insurance on the public exchanges in 15 states and had described itself as being “highly successful” in enrollment. The two companies compete head-to-head on the public exchanges in more than 100 counties. What did the Aetna court decide? The Aetna court concluded that the merger of Aetna and Humana would substantially lessen competition in all of the 364 counties the government alleged. It also rejected the health insurers’ arguments that federal regulation would likely be sufficient to prevent the merged firm from raising prices or reducing benefits. Nor, said the court, would entry by new competitors or a proposed divestiture to Molina suffice to replace competition eliminated by the merger. Finally,

the court concluded the merger would be likely to substantially lessen competition on the public exchanges in three Florida counties. The court was unpersuaded that efficiencies generated by the merger would be sufficient to mitigate the anticompetitive effects for consumers in the challenged markets. How is the Aetna precedent helpful in future physician challenges? The significance of stopping the AetnaHumana merger is measured not only in the competitive harm that was avoided but also in the precedent we helped establish. As challengers of health insurer mergers, AMA and CMS want the law to recognize narrowly defined product and geographic markets for health insurance where any given merger is more likely to be found to have a substantial impact. Health insurers, on the other hand, urge the notion that their products have mul-

Tough-worded opinions

Approving the mergers would: Stifle competition Increase costs for patients Increase administrative burden for clinicians Lower the quality of care

tiple competing substitutes. Thus, in the Aetna-Humana merger, the two companies argued that their MA product competed with traditional Medicare. We argued early on that traditional Medicare is no practical substitute for MA. Instead, we said that MA and traditional Medicare were separate products as evidenced by consumers of MA not readily switching to traditional Medicare, among other things. Thus, the reduction of competition in MA offerings caused by the merger would matter to consumers. To bolster this contention, we caused to be published on leading academic websites, and sent to the DOJ and state agencies, the opinion of 20 nationally renowned health economists attesting to MA being a separate product market. We also transmitted the economists’ expert opinion report to the antitrust staff of the attorney general (AG) of the state of Florida where Aetna and Humana have a huge presence. When the Florida AG (together with seven other states and the District of Columbia) and the DOJ (collectively, “the government”) later filed their lawsuit against the merger claiming that MA is a separate market, our efforts were richly rewarded. However, the best was yet to come: In an extremely thorough opinion, the U.S. District Court for the District of Columbia agreed that MA is a separate market. Moreover, the relevant geographic market, the court said, was a county – a small area – and not, for example, statewide or the entire United States. The county is the relevant geographic market for MA because seniors may enroll only in MA plans offered in the county where they live. Thus, if Aetna were the sole MA insurer in Cook County, Ill., that fact would have profound antitrust consequences because a Medicare beneficiary could not turn to a plan offered in Broward County, Fla. To summarize, now we have law defining a narrowly defined product market – Medicare Advantage – in a narrowly defined geographic area – a county. We therefore enjoy an improved likelihood of defending patient choice in MA from future mergers. Also benefiting are physicians who specialize in providing services to the elderly.

Colorado Medicine for March/April 2017

Cover Story

In their words: Judges rule to block health plan mergers, citing anticompetitive effects for consumers and physicians Excerpts from the U.S. District Court ruling to block Anthem’s acquisition of Cigna

Amy Berman Jackson, United States District Judge

“

Anthem is asking the Court to go beyond what any court has done before: to bless this merger because customers may end

up paying less to healthcare providers for the services that the providers deliver even though the same customers are also likely to end up paying more for what the defendants sell.

“

maintains that the “ Anthem overriding benefit of the merger is

that the new company will be able to deliver Cigna’s highly regarded value-based products at the lower Anthem price. But the claimed medical cost savings are not cognizable efficiencies since they are not merger-specific, they are not verifiable, and it is questionable whether they are ‘efficiencies’ at all.

“

Feb. 8, 2017

The Court cannot fail to point out that it is bound to consider all of the evidence in the record in connection with the question of whether the merger will benefit competition, and in this case, that includes the doubt sown into the

record by Cigna itself.

This brings us to the elephant in the courtroom. In this case, the Department of Justice is not the only party raising questions about Anthem’s characterization of the outcome of the merger: one of the two merging parties is also actively warning against it. Cigna officials provided compelling testimony undermining the projections of future savings, and the disagreement runs so deep that Cigna cross-examined the defendants’ own expert and refused to sign Anthem’s Findings of Fact and Conclusions of Law on the grounds that they ‘reflect Anthem’s perspective’ and that some of the findings are ‘inconsistent with the testimony of Cigna witnesses.’ Anthem urges the Court to look away, and it attempts to

minimize the merging parties’ differences as a ‘side issue,’ a mere ‘rift between the CEOs.’ But the Court cannot properly ignore the remarkable circumstances that have unfolded both before and during the trial.

“

Colorado Medicine for March/April 2017

Cover story (cont.)

In their words: Judges rule to block health plan mergers, citing anticompetitive effects for consumers and physicians Excerpts from the U.S. District Court ruling to block Aetna’s acquisition of Humana

“

The Court concludes that the proposed merger is likely to substantially lessen competition in Medicare Advantage in all 364 complaint counties and in the public exchanges in the three complaint counties in Florida. ... And as in the Medicare Advantage market, the Court concludes that defendants’

proffered efficiencies do not offset the anticompetitive effects of the merger.

“

Aetna and Humana seek to defend the merger on the ground that it will create substantial, procompetitive efficiencies. ... The Court has some serious concerns regarding the companies’ efficiencies claims. ... The Court

“ “

In the public exchanges, the Court finds that Aetna withdrew from competing in the 17 complaint counties for 2017

specifically to evade judicial scrutiny of the merger.

This evidence shows that Aetna and its CEO, [Mark] Bertolini, viewed participation on the exchanges as closely connected to DOJ’s attempt to block the merger. ... Aetna was willing to offer to expand its participation in the exchanges if DOJ did not block the merger, or conversely, was willing to threaten to limit its participation in the exchanges if DOJ did. This is

persuasive evidence that when Aetna later withdrew from the 17 counties, it did not do so for business reasons, but instead to follow through on the threat that it made earlier.

“

Jan. 23, 2017

“

John D. Bates, United States District Judge

cannot be confident that the consumers who are likely to be harmed by the merger would also share in its benefits.

... [B]ecause they face a presumption of illegality based on very high concentration measures, they must marshal evidence of ‘extraordinary efficiencies’ in rebuttal. In the Court’s view, they have not done so. ... Here, Aetna and Humana have put

forward very little evidence that would tempt a consumer in one of the challenged markets to choose the merger over continued competition. For that reason, their efficiency defense fails.

“

Colorado Medicine for March/April 2017

Cover Story With limited capacity to expand their business to traditional Medicare, these physicians are especially vulnerable given the exceptionally high degree of concentration in the MA market where the lack of competition enables insurers to depress the fees paid to physicians for services under MA. Also helpful precedent in our expected future health insurer merger challenges is the court’s rejection of Aetna’s arguments that government regulation of MA and new market entry adequately protect consumers from a post-merger Aetna exercising its market power. AMA had encountered these defenses in every forum where the competition problems with the health insurer mergers were argued. According to the insurers, consumers are protected by state and federal regulatory structures – such as limits on medical loss ratios and state network adequacy standards – that are designed to deter and remedy anticompetitive harm, such that the benefit of antitrust enforcement would be small. Thanks to the Aetna case, there is now judicial precedent to the effect that such regulatory provisions are poor substitutes for the benefits of health insurer competition. Moreover the court found that there are high barriers to entry into MA markets and that the lost competition caused by the merger would be permanent. This is actually a universal characteristic of health insurance markets that AMA has had to argue in multiple federal and state forums. We now have the Aetna case to support the proposition of high barriers to entry into health insurance. The government in Aetna also alleged that the effect of the merger would substantially lessen competition in 17 counties within the states of Florida, Georgia and Missouri. Here the market definition was undisputed. Aetna conceded that “on-exchange health plans” is a relevant product market and that each county is a separate geographic market. Hence, the relevant market was “public exchange markets in counties” – the kind of narrow market that again favors physicians in future health insurer merger challenges. But the wrinkle in the Aetna-Humana “onexchange case” was that shortly after the complaint was filed, Aetna announced that it would no longer offer on-exchange Colorado Medicine for March/April 2017

plans for 2017 in any of the 17 counties where the government alleged the merger to be unlawful. Thus, Aetna said, the merger could not “lessen competition” within the meaning of antitrust laws, because there was no competition to begin with. To say that this defense backfired would be an understatement. The judge saw the withdrawal from the 17 counties not as a business decision, but instead as a follow through on the Aetna CEO’s threat to limit Aetna’s participation in the exchanges if DOJ brought an antitrust challenge. Moreover, Aetna documents and emails showed that Aetna withdrew from the 17 counties to evade judicial scrutiny of the proposed merger and to improve its litigation position. The court further found that in three counties in Florida, the exchange markets were profitable for Aetna in 2015, and were projected to be also profitable in 2016. Therefore the court found that the proposed merger would likely cause a substantial lessening of competition in the on-exchange market within these three counties in Florida. Consequently, the court held the merger was unlawful in those markets, in addition to the markets in Medicare Advantage. The Anthem-Cigna merger: Should it pass antitrust muster because it would lower physician fees? We turn now to the Anthem-Cigna merger, a case where the last chapter has not been written because the case is now pending in the U.S. Court of Appeals for the DC circuit where oral argument is scheduled for March 24, 2017. Anthem and Cigna are the nation’s second and third largest medical health insurance carriers. The proposed merger would create the single largest seller of medical health care coverage to large commercial accounts, in a market in which there are only four national carriers still standing. After a yearlong investigation and much CMS and AMA advocacy, the U.S. DOJ, 11 states (including Colorado), and the District of Columbia sued to stop the merger. The government argued that reducing the number of national carriers from four to three is significant. It would slow innovation and result in higher

premiums. Unlike other insurers, Cigna relies on innovation to compete, and its value-based care strategies have spurred Anthem and other insurers to improve their own products. Moreover, the government argued, Anthem’s efforts to require Anthem network providers to apply Anthem’s lower rates to Cigna patients would erode Cigna’s relationships with its providers – relationships that are fundamental to Cigna’s capacity to innovate. The court issued a 140-page opinion agreeing with the government’s contentions. It concluded that the merger should be enjoined because of its anticompetitive impact in the market for the sale of health insurance to “national accounts” – customers with more than 5,000 employees, usually spread over at least two states – within the 14 states where Anthem operates as the Blue Cross Blue Shield licensee. The court further found that the proposed acquisition would also have an anticompetitive effect in the market for the sale of health insurance to large groups in Richmond, Va. Because these violations were sufficient to block the merger, the court found it unnecessary to decide whether the merger would also harm competition in the market for the purchase of health care services from physicians and hospitals in 35 separate local regions within the Anthem states. In finding an antitrust violation, the court rejected Anthem’s central defense: that the merger would allow it to extract lower reimbursement rates from doctors and hospitals and pass those savings on. Anthem claimed that it would achieve these “savings” by offering “the Cigna product at a lower Anthem price” through contractually forcing providers to extend the fee schedules that Anthem has already secured. The trial court however found that the Cigna model depends upon collaboration that requires a higher level of compensation. Cigna’s collaborative arrangements, said the court, are aimed at lowering utilization and thus are central to the value-based approached and medical cost trend guarantees that Cigna is selling. The Anthem trial court’s decision is a stunning affirmation of the position urged

Cover story (cont.) by AMA and CMS. The judge determined that forcing fees lower would not benefit consumers and “would erode the relationship between insurers and providers” and “reduce the collaboration” that is essential to innovation in payment and delivery. The court found that “effective collaboration requires more of the physicians and hospitals, and they expect to be paid for it…” Moreover, the court noted that rather than passing along lower reimbursements to consumers, Anthem’s own documents revealed that the firm had considered a number of ways to capture the network savings for itself and not pass them through to the customers – a finding that buttresses one of AMA’s principal contentions in opposing the merger. Insurer merger agreements to depress physician fees are not efficiency producing The Anthem court noted that there was no basis for concluding that provider fees were “excessive.” A merger agreement to depress physician fees, the judge reasoned,

is not efficiency producing, and better characterized as an exercise of buyer power: [S]ince Anthem’s efficiencies defense is based not on any economies of scale, reduced transaction costs, or production efficiencies that will be achieved by either the carriers or the providers due to the combination of the two enterprises, but rather on Anthem’s ability to exercise the muscle it has already obtained by virtue of its size, with no corresponding increase in value or output, the scenario seems better characterized as an application of market power rather than a cognizable beneficial effect of the merger.” The Anthem case goes to the court of appeals Anthem has appealed and has asked for an expedited decision so that it can meet the merger agreement closing deadline of April 30 when Cigna, which no longer wants to merge, can walk away from the agreement and ask for its breakup fee of

$1.8 billion. In its appeal, Anthem does not dispute that the merger would be anticompetitive in a national accounts market but for claimed savings. The savings, Anthem says, would come from applying Anthem’s lower reimbursement rates to Cigna physician and hospital contracts, thereby reducing their payments by billions of dollars. Employers and employees would be the beneficiaries, given the automatic pass-through of health care costs under the ubiquitous administrative services only (ASO) contracting in the national accounts market. The foundation of Anthem’s appeal is its centerpiece argument, rejected by the trial court, that a merged company would supply a Cigna-quality product at Anthem’s lower provider price, and that this represents an increase in “consumer welfare” that outweighs the distortions to the health insurance market that the merger would cause. Supporting Anthem is a brief filed by seven individual economists and business professors arguing that the

A tremendous win A reflection from Boulder County on the decisions to block the mergers Leto Quarles, MD, BCMS immediate past president The Boulder County Medical Society celebrates the court decisions to block the proposed mergers of Aetna-Humana and Anthem-Cigna. This is a tremendous win for medicine and our patients. Thanks in good part to the tireless efforts of the Boulder County Medical Society, Colorado Medical Society and American Medical Association attorneys, staff and physician leadership, the U.S. Department of Justice has sided with physicians and our patients against these insurance mega-mergers. BCMS sent a 14-page letter to the DOJ in June 2016 urging them to block the Aetna-Humana merger, concerned about high market concentration in Boulder County should the merger be approved. The devastating impact was demonstrated in data from the AMA and federal Centers for Medicare and Medicaid Services. It would have given the merged company a near monopoly in our area, allowing the payer to dictate reimbursement rates and terms to physicians, and leaving Boulder County physicians in a financially

perilous position, one in which neither choice – staying innetwork and accepting lower reimbursements and further imbalanced terms, or walking away and losing a large bulk of our patients – was viable or acceptable. It would have significantly added to physician attrition through retirement, relocation and transition to non-clinical careers; our growing Boulder County population could not afford these substantial losses. For our patients, clinical decision-making would have been further disrupted. One very powerful insurer could channel the bulk of our patients through whatever convoluted, arbitrary and minimal-recourse processes of prior authorizations and mandated formularies and facilities they chose to impose. The most serious consequence of preferred network referrals, restricted formularies and panels, and poor reimbursement is that, ultimately, they disincentivize us to properly care for our sickest, most medically complex, and therefore most expensive patients. At a time when so much is changing in the business of medicine, I am grateful to have the strength, wisdom and experience of organized medicine at my back.

Colorado Medicine for March/April 2017

Cover Story district court erred by considering only the consumer harm of potential premium increases while disregarding the consumer benefit of potential provider price reductions. The government, of course, is contesting the appeal, notwithstanding Anthem’s representation, in a Delaware state court proceeding, that a settlement is at hand because of new Trump-administration Justice Department leadership and Vice President Mike Pence’s favorable view of Anthem. Filing amicus briefs supporting the government are the AMA, AHA and, at AMA’s suggestion, 27 professors who have expertise in the subjects of health economics, antitrust and/or competition policy. (See more information in the sidebar on page 21.)

reimbursed at Cigna’s higher rates – would destroy consumer welfare by undermining the collaborative relationships with providers for which Cigna is known, ultimately reducing the quality of the product. The quality concerns expressed in AMA’s appellate brief echo CMS physician survey findings The quality concerns expressed in AMA’s amicus brief echo what the Colorado Medical Society prominently learned when it canvassed its members about the

likely effects of an Anthem-Cigna merger. Of the nearly 600 Colorado physicians who fully responded to a CMS survey, 72 percent said that it was very likely or somewhat likely that reimbursement rates for physicians would decrease; 66 percent expected reduced collaboration in patient care from providers; 62 percent said that physicians would be forced to spend less time with patients; and 58 percent said that they would reduce investments in

The professors are from leading academic centers and many are nationally renowned. They argue that although greater insurance market concentration tends to lower provider prices, there is no evidence the cost savings are passed through to consumers in the form of lower premiums. To the contrary, they observe, premiums tend to rise with increased insurer concentration. In addition, the scholars agree with the Anthem trial court’s skepticism that the largest source of alleged mergerinduced cost savings – a reduction in rates paid to providers – will be beneficial to consumers, let alone sufficient to offset the harm arising from reduced competition in insurance markets. AMA’s amicus brief reflects the many months that the AMA and Colorado Medical Society spent analyzing the likely effects that an Anthem-Cigna merger would have on the physician marketplace. AMA argues in the Anthem appeal that even if Anthem were to give its customers all the savings from forcing physicians to lower their fees, the resulting social harm from lower quantity and quality in the market for health care services would undermine the benefit of these savings. Anthem has never explained how the merged company could force Anthem’s providers to participate in Cigna’s resource-intensive programs without an increase in compensation, or how it could force Cigna’s providers to continue to offer those programs for less compensation. Instead, imposing Anthem’s lower rates on providers – now Colorado Medicine for March/April 2017

Cover story (cont.) practice infrastructure. Surveys in other states found similar results. In its appellate court brief, AMA also expresses concern about the long-term effect on the medical profession and consumers. The district court found no evidence that the rates charged by providers within Anthem’s service area are “inflated due to the providers’ market power.” Therefore, reducing reimbursement to physicians will likely reduce patient care and access by motivating physicians to retire early or seek opportunities outside of medicine that are more rewarding, financially or otherwise. A recent survey by The Physicians Foundation shows that 48 percent of physicians plan to cut back on hours, retire, take a non-clinical job, switch to “concierge” medicine, or take other steps limiting patient access to their practices. According to a study released by the Association of American Medical Colleges, the U.S. will face a shortage of between 61,700 and 94,700 physicians by 2025. An Anthem-Cigna merger threatens to swell these figures; the CMS survey of Colorado physicians found that 13 percent believe that if they are not able to contract

with a merged Anthem and Cigna, they will have to close their practices. Given that there are already too few physicians, it will not enhance consumer welfare to drive down reimbursements so far that physicians are driven from the practice of medicine.

At the same hearing, the senior policy counsel of Consumers Union testified that “a dominant insurer could force doctors and hospitals to go beyond trimming costs, to cut costs so far that it begins to degrade the care and service they provide below what consumers value and need.”

The findings of the American Medical Association, says the AMA in its brief, are consistent with the conclusions of academics and consumer advocates who have examined the proposed merger. Professor Leemore Dafny, a Harvard economist who focuses on the health care industry, testified to the Senate:

The AMA brief concludes with the observations of the California Department of Insurance when it recommended that the United States challenge the merger: “Allowing Anthem to increase its already enormous bargaining power will further limit network size and excessively squeeze reimbursement rates, thereby discouraging provider contracting and unacceptably reducing consumer choice and quality of care.” The Department of Insurance also pointed out that it had discovered that Anthem violated laws regarding claims handling 16,000 times, and that the California Department of Managed Health Care ranked Anthem third worst among 10 companies on “coordination of care.” Describing a merger between UnitedHealthcare and PacifiCare in 2005, the Department of Insurance noted that while the combined company met its costcutting goals, it did so at the expense of quality and service; after the merger, PacifiCare violated the insurance laws more than 900,000 times.

“[E]ven if price reductions [for health care services] are in fact realized and passed through [to consumers], if they are achieved as a result of monopsonization of health care service markets then consumers may experience an offsetting harm. Monopsony is the mirror image of monopoly; lower input prices are achieved by reducing the quantity or quality of services below the level that is socially optimal.”

Conclusion Hopefully the Court of Appeals in Anthem will preserve the vital district court’s conclusion that an enhanced ability to coerce physicians to accept lower reimbursement is no merger efficiency defense. Such a decision would raise this principle to the authority status of a DC Court of Appeals decision, a court widely regarded as having prestige second only to that of the Supreme Court of the United States. n

Are you an AMA member? It is only through the support of our members that the AMA Advocacy Resource Center’s work as possible. Help sustain our state advocacy efforts on issues of importance to you and your patients. Join the AMA today: ama-assn.org/membership 18

Colorado Medicine for March/April 2017

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Features

Anthem merger appeal AMA sounds alarm about “political influence” in potential new Anthem-Cigna deal The American Medical Association expressed alarm over an implied deal that would allow Anthem’s purchase of Cigna under newly appointed Justice Department officials from the administration of President Donald Trump. In a Feb. 28 letter to Acting Assistant U.S. Attorney General Brent Snyder, the AMA said it was alarmed by “recent statements by Anthem, made in the Delaware Court of Chancery, asserting that the company expects to close its merger transaction with Cigna through ‘resolution with a new DOJ.’”

“An Anthem attorney stated in open court that the company believes its prospects for a timely closing are enhanced by a ‘supportive’ Vice President Mike Pence,” wrote AMA CEO James Madara, MD, to the U.S. Justice Department. Pence is the former Indiana governor and Anthem is headquartered in Indianapolis. “There have also been press reports of settlement negotiations.”

it would violate federal antitrust laws by stifling competition, and harming consumers by increasing health insurance prices and hindering innovation that could lower health care costs. The AMA, Colorado Medical Society and other members of the Block the Mergers Coalition opposed the AnthemCigna deal and assisted the Justice Department in its successful case to block the deal.

Anthem is appealing the February U.S. District Court ruling that blocked its merger with Cigna on grounds that

“We find it implausible that the U.S. Department of Justice (DOJ), eleven states and the District of Columbia – that have diligently and successfully prosecuted this antitrust merger case – could now be swayed to allow this merger to close pursuant to politically driven settlement negotiations as Anthem has suggested,” Madara wrote in the letter. “To do so would cause irreparable harm to the integrity of the federal courts to adjudicate anticompetitive behavior in a fair and impartial manner, leaving consumers at risk. We strongly believe that political influence should play no role in the enforcement of the antitrust laws and urge you to vigorously defend Judge Jackson’s ruling.”

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Susan Koontz, JD, Colorado Medical Society general counsel, wrote in a March 1 letter to the office of Attorney General Cynthia Coffman that CMS vigorously supports the AMA’s respectful urging that the U.S. DOJ and state plaintiffs reject any offers to settle the Anthem-Cigna litigation. Read the letters from CMS and AMA on www.cms.org. n

Colorado Medicine for March/April 2017

Features

Latest news in Anthem’s appeal: Organizations file amicus curiae briefs The American Medical Association, American Hospital Association, and professors with expertise in the subject of health economics, antitrust and/or competition policy filed amicus curiae briefs in response to Anthem’s appeal to the February U.S. District Court ruling that blocked its merger with Cigna. Amicus curiae briefs are filed with the court by someone who is not a party to the case, to offer information that bears on the case. Anthem and several individual economists and business school professors without known expertise in health care filed briefs in support of reversing the district court’s order. Anthem focuses on its efficiencies defense; that is, claimed medical cost savings that “enhance consumer welfare,” the purpose of the antitrust laws. They do not dispute that the merger would be anticompetitive in a national accounts market, but for the claimed savings that would come, Anthem says, from applying Anthem’s lower reimbursement rates to Cigna-contracted physician and hospital contracts. Employers and employees would be the beneficiaries, given the automatic pass-through of health care costs under the ubiquitous “ASO contracting” in the national accounts market. In a few pages, the professors’ brief says the district court erred by considering only the consumer harm of potential price increases while disregarding the consumer benefit of potential price reductions. Here are a few topline take-aways from the briefs in support of blocking the mergers. American Medical Association • The AMA argues the difference between Anthem’s generally lower physician reimbursement fees and Cigna’s generally higher fees does not represent a consumer benefit achievable in the merger, much less one that outweighs the distortions to the health insurance market that the merger will cause. • Cigna’s higher rates compensate providers for their investment of time and money that Cigna’s collaborative care model requires. • Cigna remains competitive because many employer customers have rejected Anthem’s lower provider payment rates in favor of their employees staying healthier and requiring less health care, thus reducing employer overall health care costs. • Anthem’s claim that the merger will enable them to offer a new product – Cigna’s products at Anthem’s prices – was contradicted by the evidence at trial and the experience of the market.

Colorado Medicine for March/April 2017

• The court properly found that Anthem’s reimbursement cuts, rather than enhancing consumer welfare, could cause quality to degrade and consumers to be deprived of choice. Moreover, Anthem has never explained how or why health care providers, having lost significant revenue, would continue to invest in the programs they and Cigna use to keep patients healthy. • In short, finding innovative ways to improve patients’ health and reduce costs requires collaboration and investments that Cigna had been more willing to undertake than Anthem. • Accepting Anthem’s claims would turn the efficiencies defense on its head, rewarding Anthem for playing catch-up through an acquisition instead of developing its own products as a result of competition. • The evidence at trial echoes what state medical associations learned when they canvassed their members about the likely effects of an Anthem-Cigna merger. Professors with expertise in the subjects of health economics, antitrust and/or competition policy • Not to be outdone by Anthem, professors Leemore Dafny, Ted Frech and Marty Gaynor produced an amicus brief in collaboration with the numerous scholars listed in in the brief’s appendix (27 signed in total). • They argue that consolidation in health insurance markets does not, on average, benefit consumers. • Although greater insurance market concentration tends to lower provider prices, there is no evidence the cost savings are passed to consumers in the form of lower premiums. • On the contrary, premiums tend to rise with increased insurer concentration. In addition, amici agree with the Anthem trial court’s skepticism that the largest source of alleged merger – induced cost savings, a reduction in rates paid to providers – will be beneficial to consumers, let alone sufficient to offset the harm arising from reduced competition in insurance markets. American Hospital Association • AHA asserts that the merger will reduce innovation at a time when innovation is most needed. • Innovative payment models are critical to sustainable health care. • The antitrust laws are intended to promote innovation, including by preventing acquisitions that would harm innovation.

Features

AMA Advocacy Conference Chet Seward, Senior Director, Division of Health Care Policy

Colorado physicians travel to Washington, DC to advocate for health reform Physician leaders from around the state, CMS staff and component medical society staff traveled to Washington, DC, Feb. 27-March 3 to participate in the 2017 American

Medical Association National Advocacy Conference. Federal health care reform was the primary topic for visits with every member of the Colorado Congressional Delegation.

The many meetings with Congressional leaders and their staff demonstrated how fluid the political situation is right now. Just two days before the conference began, House Republican leadership released a policy brief outlining a proposed plan for replacing the Affordable Care Act (it was subsequently dismissed as not the preferred approach). One notable component is moving federal funding for Medicaid to a block grant or per-capita cap. This could mean a large transfer of costs from the federal government to the states, possibly posing problems for Colorado given TABOR constraints, and the inverse nature of economic downturns driving lower tax revenue and more state spending on Medicaid due to lower incomes. During these hill visits Colorado physician leaders emphasized the need to protect recent gains in coverage and corresponding benefits to improved patient access to care. Specifically, that means that a repeal of the Affordable Care Act should only occur with a clearly identified and carefully considered replacement plan. This position aligns with CMS support and participation with more than 100 organizations in the Colorado Health Policy Coalition.

U.S. Sen. Cory Gardner (R), (top center, head of table) and U.S. Senator Michael Bennet (D), (bottom center, head of table) listen to physician concerns during meetings with CMS President Katie Lozano, MD, FACR, CMS President-elect Robert Yakely, MD and other CMS and component society leaders. 22

Importantly, the group of physicians emphasized the need to fix major issues within the current system, including the need for regulatory relief and leveling the playing field beColorado Medicine for March/April 2017

Features

Left: From left, Denver Medical Society President Elizabeth Lowdermilk, MD, U.S. Rep. Ed Perlmutter (D), and CMS President Katie Lozano, MD, FACR. Right, CMS and component society members discuss talking points before a meeting. tween mega-health plans and physicians as replacement plans are considered. CMS has and will continue to support health insurance coverage for all Coloradans but at no time has assumed that any one program can achieve all of these coverage goals: CMS backed the Medicaid expansion, the state-run health insurance exchange and the State Innovation Model grant, but studied and ultimately opposed Amendment 69. Besides federal health care reform, these congressional visits offered the chance to discuss other important topics like Colorado’s opioid abuse crisis, reducing prior authorization burdens, increasing drug pricing transparency and detailing how

immigration issues affect physician workforce supply. Keynote speakers at the National Advocacy Conference included Norah O’Donnell, co-host of CBS This Morning and correspondent for CBS’ Face the Nation, as well as Mick Ebeling, CEO of Not Impossible Labs, two-time SXSW Innovation Award winner. Thanks to all of the physician leaders and component staff who attended this year’s conference. Learn more at www.ama-assn.org/national-advocacyconference. n Members pose in front of the U.S. Capitol dome. From left: Immediate Past President Michael Volz, MD; Brandi Ring, MD; President Katie Lozano, MD, FACR; President-elect Robert Yakely, MD; and Denver Medical Society President Elizabeth Lowdermilk, MD.

Join Now! Colorado Medical Political Action Committee

Pueblo County Medical Society President Henrique Fernandez, MD, participates in the “Hill visit” meetings with members of the Colorado Congressional delegation. Colorado Medicine for March/April 2017

Call 720-858-6327 or 800-654-5653, ext. 6327 or e-mail susan_koontz@cms.org

Features

Legislative update Susan Koontz, JD, CMS General Counsel

CMS advocates for health plan reform Surveys of CMS members demonstrate time and again deep dissatisfaction with the current multi-payer system. While member concerns span a variety of administrative and care-specific interferences, most CMS members are simply asking for reasonable incremental reforms that will result in more time for patients and less time on the hoops and hassles now ingrained in the system. In response, CMS is seeking passage of a series of managed care reforms in the 2017 General Assembly. These reforms have inspired a healthy and longoverdue debate over the relationship between physicians and payers. We are deeply grateful to members of the General Assembly who have been willing to step up and promote fairness and greater transparency in the system, as well as the many CMS members who have completed our surveys, testified at hearings and taken the time to contact their elected officials. SB17-088 - Participating Provider Network Selection Criteria Position: Support Sponsors: C. Holbert | A. Williams / K. Van Winkle | E. Hooton This bill requires a health insurer to develop, use and disclose to participating health care providers the standards the carrier uses for: • Selecting participating providers for its network of providers; • Tiering providers within the network; and • Placing participating providers in a narrow or tiered provider network. A carrier must disclose its standards to the commissioner of insurance for review and must make the standards 24

available to providers and consumers. At least 60 days before implementing a decision to terminate a provider’s participation in one or more provider networks, a carrier must notify the affected provider in writing and inform the provider of the right to request that the carrier reconsider its decision. The bill requires the carrier to develop procedures for providers to request reconsideration and sets forth minimum requirements for, components of and deadlines for the procedures. Upon request, and not more than quarterly, a carrier must provide to providers participating in at least one of its networks a complete list of all network plans and products it offers to consumers, indicating the participating provider’s status within each network plan or product. This bill passed the Senate and is headed to the House. SB17-133 - Insurance Commissioner Investigation of Provider Complaints Position: Support Sponsors: J. Tate / D. Young Currently, the commissioner of insurance may investigate complaints by health care providers regarding the improper handling or denial of benefits by a health insurance company. The bill requires the commissioner to investigate provider complaints and notify the provider of the results of the investigation. The commissioner is directed to include information on provider complaints in an existing annual report to the General Assembly. The commissioner must determine if there is a pattern of misconduct by a health insurance company and, if there is a pattern, must impose an appropriate remedy or penalty as an

unfair or deceptive practice. This bill was assigned to the Senate Business, Labor and Technology Committee on Jan. 31. Shortly after this bill was introduced, it was noted on the record that a pilot project is to be established by the Division of Insurance. If the details of the pilot can be worked out to the satisfaction of physicians, the bill will be voluntarily postponed indefinitely. HB17-1094 - Telehealth Coverage Under Health Benefit Plans Position: Support Sponsors: D. Valdez | P. Buck / K. Donovan | L. Crowder Under current law, health benefit plans are required to cover health care services delivered to a covered person by a provider via telehealth in the same manner that the plan covers health care services delivered by a provider in person. This bill clarifies that: • A health plan cannot restrict or deny coverage of telehealth services based on the communication technology or application used to deliver the telehealth services; • The availability of telehealth services does not change a carrier’s obligation to contract with providers available in the community to provide in-person services; • A covered person may receive telehealth services from a private residence, but the carrier is not required to pay or reimburse for any transmission costs or originating site fees the covered person incurs; • A carrier is to apply the applicable copayment, coinsurance, or deductible amount to health care services a covered person receives through telehealth, which amount cannot exColorado Medicine for March/April 2017

Features ceed the amount applicable to those health care services when delivered through in-person care; and • Telehealth includes health care services provided through HIPAA-compliant audio-visual communication or the use of a HIPAA-compliant application via a cellular telephone but does not include voice-only telephone communication or text messaging. The bill was signed by the governor on March 16. HB17-1173 - Health Care Providers and Carriers Contracts Position: Support Sponsors: C. Hansen / T. Neville Current law requires a contract between a health insurance carrier and a health care provider to include a provision that prohibits a carrier from taking an adverse action against the provider due to a provider's disagreement with a carrier's decision on the provision of health care services. The carrier cannot terminate the health care provider’s contract for disagreeing or for assisting his or her patient in seeking a reconsideration. The bill requires the contract to also contain provisions that prohibit a car-

rier from: taking adverse actions for communicating with public officials on health care issues; filing complaints or reporting to public officials about conduct by a carrier that might negatively affect patient care; providing information concerning a violation of this provision; reporting alleged carrier violations to the appropriate authorities; or participating in an investigation of an alleged violation. The bill passed the House and is scheduled for hearing on March 20 before the Senate Business, Labor & Technology Committee. SB17-198 - Public Participate Review Acquire Control Insurer Position: Support Sponsors: K. Priola / A. Garnett Current law requires an opportunity for public notice and a hearing for proposed transactions that would result in the acquisition of control of a domestic insurer, which is one that is incorporated or formed pursuant to Colorado law. Section 1 of the bill expands the public notice for acquisition of a domestic insurer that offers health plans by requiring the commissioner of insurance to make the

entire pre-acquisition notification available for public inspection promptly after filing. Section 2 requires the commissioner to subject proposed transactions that would result in the acquisition of control of a foreign insurer that offers health plans to public participation requirements that are analogous to those that would be required for domestic insurers that offer health plans. The bill was heard on February 28 before the Senate, Business, Labor & Technology Committee and testimony was taken. The Committee will vote on the bill on March 21. SB17-206 - Out of Network and Surprise Bills Position: Support Sponsors: B. Gardner / J. Singer This bill provides a framework to resolve the long-standing out-of-network balance billing problem and requires that carriers, facilities and providers all notify patients of their legal protection for OON bills under current Colorado law. A hearing is scheduled on March 21 before the Senate Business, Labor and Technology Committee.

Late-breaking bill: HB17-1254 – “Noneconomic Damages Cap Wrongful Death of Child” This bill would expand the value of a wrongful death lawsuit by repealing the non-economic damage cap involving minor children under the age of 21, which also includes medical liability cases, notwithstanding current law. Opponents of the bill cite consequences of its enactment, as introduced: • Higher costs: Physicians cover their liability exposure by ordering more diagnostic tests, resulting in higher utilization and increased costs • Imperils access: Trauma surgeons, obstetrician-gynecologists, and rural physicians who Colorado Medicine for March/April 2017

staff emergency departments find ways to avoid increased exposure to lawsuits by curtailing or eliminating high risk cases • New workforce shortage barrier: Up to half of medical students and residents consider a state’s medical liability climate in determining where to practice. CDPHE reports professional shortages exist in more than two-thirds of Colorado. Non-economic loss or injury damages are currently set at $300,000 and cover pain and suffering, emotional stress, and impairment of the quality of life of the surviving parties who may be entitled to sue. In medical

liability cases, Colorado’s Health Care Availability Act (HCAA) specifies that plaintiffs can be awarded economic damages (limit of $1 million for damages such as medical expenses and wages) or non-economic damages (limit of $300,000 for inconvenience, emotional distress and impairment of the quality of life). A major change to the professional liability climate should not be considered in isolation, but rather in a broader delivery system context, including the treating physician’s accountability for delivering the right care at the right place, time and value. 25

Legislative update (cont.) SB17-203 - Prohibit Carrier From Requiring Alternative Drug Position: Support Sponsors: N. Todd / C. Kennedy | P. Covarrubias The bill prohibits a carrier from requiring a covered person to undergo step therapy: • When being treated for a terminal condition; or • If the covered person has tried a steptherapy-required drug under a health benefit plan and the drug was discontinued by the manufacturer. A carrier that requires step therapy must have an override process for health care providers. “Step therapy” is defined as a protocol that requires a covered person to use a prescription drug or sequence of prescription drugs, other than the drug that the covered person’s health care provider recommends for the covered person’s treatment, before the carrier provides coverage for the recommended drug. This bill passed out of the Senate Business, Labor and Technology Committee on March 15. SB17-084 - Coverage for Drugs in a Health Coverage Plan Position: Support Sponsors: C. Jahn / D. Esgar | J. Singer The bill prohibits a health insurance carrier from excluding or limiting a drug for an enrollee in a health coverage plan if the drug was covered at the time the enrollee enrolled in the plan. A carrier may not raise the costs to the enrollee for the drug during the enrollee’s plan year. This bill was postponed indefinitely on Feb. 9 in the Senate Committee on Health and Human Services. Stay connected We encourage physicians to stay involved with CMS during the session by testifying or calling your legislators to urge their support. Watch for special legislative alerts or contact Adrienne at adrienne_abatemarco@cms.org or 720858-6322 for more information. n 26

Colorado Medicine for March/April 2017

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Colorado Medicine for March/April 2017

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Features

United-Rocky merger Kate Alfano, CMS Communications Coordinator

Colorado insurance commissioner approves UnitedHealthcare acquisition of Rocky Mountain Health Plans Insurance Commissioner Marguerite Salazar approved UnitedHealthcare’s acquisition of Rocky Mountain Health Plans in early February. “This deal will allow Rocky to continue to serve Coloradans, particularly on the Western Slope,” Salazar said in a news release. “I want to thank all of the organizations that submitted comments on this matter. These served to inform my decision, and are reflected in the final approval order.” Colorado Medical Society President Katie Lozano, MD, FACR, submitted a letter to Commissioner Salazar on Jan. 3 and CMS President-elect Robert Yakely, MD, testified before the Colorado Division of Insurance on Jan. 10 to encourage the commissioner to strengthen the acquisition agreement to protect patients, engage physicians and practices on the Western Slope, ensure a smooth transition for the management team, and hold United accountable to its promises to apply Rocky’s best practices in the future. The final proposal addresses virtually all the conditions recommended by CMS, and CMS leaders expressed approval of the physician leaders initially chosen to serve on the provider advisory committee.

The final agreement includes the following conditions. • Protecting consumers - The commissioner ordered that the costs of this transaction cannot be passed on to Colorado consumers as higher premiums. • Continue to expand access to care and service - United shall continue Rocky’s work to provide and improve access to health coverage for Colorado consumers, especially on the state’s Western Slope, and continue in that market for at least five years. • Community support - United shall continue to support community benefits in Western Colorado for three years at Rocky’s current level of support (up to $500,000 per year). • Conversion approval - The transaction also required the approval by the Colorado attorney general of the conversion of Rocky Mountain HMO from a non-profit to a for-profit corporation. That approval was issued on Thursday, Feb. 9.

The acquisition process began in August 2016 when the parties submitted an application for this transaction to the insurance commissioner. In the ensuing months, the commissioner requested additional information from United and Rocky, including a competitive impact analysis. Also as part of this process, the Colorado Center on Law and Policy, the Colorado Consumer Health Initiative and CMS submitted comments and recommendations concerning the acquisition. The public hearing was held in Grand Junction on Jan. 10, 2017. As part of the process, the Division of Insurance concluded that the transaction would not substantially lessen competition in Colorado, nor tend toward a monopoly, and that, after the transaction, Rocky would meet the DOI’s financial requirements for a health insurance carrier. n

“While the decision to establish the advisory committee is not legally binding, the CMS Board of Directors views the proposal as an act of good faith from an organization (RMHP) that has a long history of collaboration with the medical communities on the Western Slope and across Colorado.” Colorado Medicine for March/April 2017

Features

Colorado QPP Coalition Kate Alfano, Communications Coordinator

Developing resources and education for your MACRA success In 2017 Medicare will roll out the most sweeping and complex change to the way it pays for physicians’ services since 1997. Through MACRA, Medicare’s fragmented approach to quality initiatives will be combined into a single Quality Payment Program (QPP) with two approaches: MIPS (MeritBased Incentive Payment System) and APMs (Advanced Alternative Payment Models). These changes will accelerate Medicare’s move to payment for value rather than volume. Regardless of political changes in

Washington, D.C., the industry-wide effort to shift from volume- to valuebased health care is moving forward. MACRA passed with bipartisan support, which reinforces the longevity of programs that are designed to help providers focus on patient care. “The QPP is not just a change in payment,” said Mark Levine, MD, FACP, chief medical officer, Centers for Medicare and Medicaid Services Denver, who participated in the first meeting of the Colorado QPP Coalition. “It is intended to align everyone

in a common vision for the future of health care in America.” To help prepare Colorado physicians and practices for this change, the Colorado Medical Society has joined a new coalition – the Colorado QPP Coalition – that will equip clinicians and their practice teams with the information and infrastructure they need to successfully test value-based reimbursement models by sharing resources and educational opportunities. Along with CMS, the Colorado QPP Coalition includes the Colorado

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Colorado Medicine for March/April 2017

Features Academy of Family Physicians, the Colorado Community Health Network, the Colorado Health Extension System, CORHIO, Colorado SIM and Telligen, among others. See the full list in the highlight box. The coalition held a webinar on Feb. 16 on the basics of the Quality Payment Program, including the MIPS and APM tracks. This program included the support available to navigate and succeed in Medicare’s value based program. Panelists included Mark Levine, MD; Barbara Martin; Monica Morris, MD; and Kyle Knierim, MD. A special website for the CO-QPP Coalition, www.cms.org/coqpp, will serve as an information hub for the program and for education and coaching assistance for physician practices on the QPP. Watch for more from the Colorado QPP Coalition this spring and beyond. n

Colorado QPP Coalition members Aurora-Adams County Medical Society CORHIO Colorado Academy of Family Physicians Colorado Community Health Network Colorado Health Extension System Colorado Medical Group Management Association Colorado Medical Society Colorado State Innovation Model Office Denver Medical Society HealthTeamWorks Hilltop Family Physicians Practice Innovation Program at the Department of Family Medicine, University of Colorado Region VIII Centers for Medicare and Medicaid Services Telligen

2017 Quality Payment Program Eligible Clinicians Physicians Physician assistants Nurse practitioners Clinical nurse specialists Certified registered nurse anesthetists

HOLOCAUST GENOCIDE AND CONTEMPORARY BIOETHICS PROGRAM Promoting education, scholarship and community engagement on the lessons of the Holocaust for health care and society.

Week of Remembrance: April 24th – 28th

Courtesy: The United States Holocaust Memorial Museum

Sponsors Maimonides Institute for Medicine, Ethics and the Holocaust

The M.B. Glassman Foundation

Commemorating the 70 th Anniversary of the Nuremberg Doctors’ Trials University of Colorado & Locations in the Colorado Community Monday, April 24th Noon-3pm CU Anschutz Medical Campus Presentations & Panel Discussion

Monday, April 24th University of Denver Evening Event and Presentation 25th

Tuesday, April CU Colorado Springs Lunchtime Presentation

Wednesday, April 26th CU Boulder Campus Lunchtime Presentation-CU Law School Evening Program on the Main Campus Thursday, April 27th CU Downtown Campus Lunchtime Community Program

Details at: www.coloradobioethics.org Colorado Medicine for March/April 2017

Karl Genzken, MD

2017 EVENTS 31

Features

Introducing ProPractice Mike Ware, Chief Executive Officer, EPCMS

El Paso County Medical Society launches full-service program for practices’ nonclinical needs America’s health care system is stacked against physicians, who are working more hours, yet seeing fewer patients. They’re struggling to keep up with the pace of new regulations. Practices are challenged financially, not because they aren’t providing good care, but because of a health care financing system that doesn’t value them. To help address this dilemma, the El Paso County Medical Society (EPCMS) recently expanded to become a full-service adjunct to provide nonclinical services to physician practices. When our physicians suffer, our communities suffer. While we were providing continuing education, and opportunities to connect with colleagues and

discounts, we still saw physicians being pulled away from treating patients – the activity that gives them the most professional satisfaction. EPCMS wanted to do more to help its members be successful physicians. Now working within its newly created brand – ProPractice: Practice Made Perfect – EPCMS has set

a path to become the national model for a modern medical society. Why create ProPractice? Medical societies have been around since our nation was founded; EPCMS was formed in 1879. Since that time our mission has stayed the same: help-

CALL FOR NOMINATIONS AMA Delegate and Alternate Delgate Positions Open Nominations close April 30, 2017 Learn more by visiting the CMS website at http://www.cms.org/uploads/2017_Election_Manual.pdf or contact Dean Holzkamp at 303-748-6113 or by e-mail at dean_holzkamp@cms.org for more information. 32

ing physicians so they can help patients. This will never change. Two years ago when we set out to make Colorado Springs the best place in America to practice medicine and receive medical care, we knew we had the right team, an amazing community and great physicians. Our path to becoming the national model was transformative. We became more than a medical society; we became a key component of providing day-to-day solutions for physicians and their practices. There are three parts to ProPractice: 1. Our professional association, the El Paso County Medical Society We are still a membership organization, and our traditional medical society role will function as EPCMS. Under the EPCMS brand, we’ll keep offering continuing education, collegiality and training through our Physician Connection, New Realities and Office Managers Association programs. Through the EPCMS Foundation, we’ll continue helping our community through disaster response programs like the Medical Reserve Corps of El Paso County and the Southern Colorado Health Care Coalition, and continue building top-tier physicians by funding scholarships through the University of Colorado School of Medicine - Colorado Springs Branch. Colorado Medicine for March/April 2017

Features 2. National expertise for your practice We have recruited top-level expertise with individuals whose résumés include national and international clinical and nonclinical work. Our in-house team has helped nearly 275 physicians and their practices since launching our Practice Renewal Service in fall 2015. Physicians and their practices will now be able to access our specialists’ knowledge at a price that won’t break their budget. 3. Products and services exclusively for ProPractice/EPCMS members Through ProPractice, we’re building a suite of services that medical practices can use to remove administrative hassles. Most of these services are offered in-house by ProPractice/EPCMS employees, such as the credentials verification service that physicians are using to obtain hospital privileges. Through our online OSHA training, practices can ensure their staff is properly trained. By moving this training online, including the testing and certification, employees can access the trainCHC_WI_ECHOPainNetFracAd_CO_F120216.indd ing at times that work with their daily schedules, and without compromising time with patients.

12/2/16 10:45 AM

A number of additional products and services are in development. Insurance credentialing and enrollment services, as well as contract negotiation, coding, billing and administering a practice’s human resources program are the first of many solutions to the problems facing the average physician practice. Same mission, enhanced services Throughout our 138-year history, EPCMS has remained steadfast to our mission – helping physicians so they can help patients. By creating ProPractice, we’re doing more to meet that mission. By working together through ProPractice, we’ll extend to physicians and their practices the services and benefits to level the field of medicine, putting physicians back in charge and giving them a Practice Made Perfect. n Colorado Medicine for March/April 2017

Features

Get support for providing whole-person care Heather Grimshaw, Communications Manager, Colorado State Innovation Model

Physician practices improve lives, reduce health care costs Approximately 900 health care providers participating in the first cohort of practice sites for the Colorado State Innovation Model (SIM) are delivering care with a whole-person approach that addresses the head and body. The SIM office released its application for the second cohort in February and hopes to recruit an additional 150 practices before the application closes March 31. Whole-person care has been shown to improve outcomes, reduce costs and enhance provider morale. “There are significant results associated with integrating behavioral health and primary care, including decreases in patient depression and stress levels, enhanced quality of life and lower rates of hospitalization,” said SIM Director Barbara Martin, NP, RN, MSN, ACNP-BC, MPH. One-year anniversary February marked the one-year anniversary for 92 primary care practice sites and four bidirectional behavioral health homes that were accepted into the first practice group, or cohort, for SIM, a federal initiative that helps health care providers integrate care and test value-based reimbursement models. “A focus on both behavioral and physical health are important to the health of patients and the ability of providers to succeed in a changing health care landscape,” said Gov. John Hickenlooper. “The SIM initiative is helping patients lead more productive lives, and guiding practices through new models.” 34

From a practical standpoint, SIM helps providers progress along an integrated care path continuum that might start with referrals to behavioral health or primary care and could lead to the colocation of professionals. “In many ways this is pioneering work,” said Lt. Gov. Donna Lynne, who was involved with care integration efforts at Kaiser Foundation Health Plan. She said she recognizes the value of helping patients access the care they need where and when they need it. “We have the willpower and willingness to be innovative in Colorado and appreciate the fact that SIM providers are leaders in this space.” Continuous improvement Colorado was one of 11 states selected for SIM model test awards funded by the Centers for Medicare and Medicaid Services, and it was the only state to focus on integrated care with public and private payers as its primary goal. The state will receive $65 million from the Center for Medicare and Medicaid Innovation to implement and test its proposed model for health care innovation. SIM is expected to save or avoid $126.6 million in health care costs with a 1.95 percent return on investment during its four-year time frame, according to a financial analysis. For the year after the test period, the initiative is projected to save $85 million annually, a portion of which will be used to sustain the program. The right type of care Delivering integrated care necessitates process and staff changes, which is why SIM provides practice facilita-

tors and clinical health information technology advisors who visit monthly and provide guidance and support. SIM also created a new workforce in the form of regional health connectors who connect practices with community resources, and partners with local public health agencies to reduce stigma and help connect patients to the care they need. “We think it’s the best way to deliver good care,” said Brian Gablehouse, MD, of Peak Pediatrics in Boulder, one of 100 practices accepted into the first cohort. Kate Drackett, LCSW, case manager at Juniper Family Medicine in Grand Junction, agrees. “We wanted to offer behavioral health support at the time of a doctor’s appointment, not as a separate, co-located service. Because of SIM we were able to offer that service. … I can be there in the moment for our patients when they need us.” Capitalizing on full health potential SIM will help 400 practice sites and four bidirectional health homes engage in this work during its four-year time frame, which ends in 2019. The application period for the second cohort opened Feb. 15. The application process is facilitated by the University of Denver Department of Family Medicine, a SIM partner. The SIM team received 180 applications for the first cohort and hopes for strong interest from the provider community with one year of practice transformation work underway. Colorado Medicine for March/April 2017

Features “We have learned a great deal about what it takes to offer integrated care during the first year of SIM implementation, and have modified the program to ensure sustainability,” Martin said. “This type of practice transformation requires a lot of work; yet providers realize that without addressing the behavioral health needs of our patients, we’re really not addressing their full health potential.” SIM practices receive the following support: • Achievement-based payments of up to $13,000 for meeting key activities and milestones. • Small grants of up to $40,000 that help practices operationalize integration efforts. • Practice facilitators who visit the practice each month. • Clinical health information technology advisors who visit the practice each month. • Regional health connectors who identify and help practices tap into community resources. • Local public health agencies that address stigma associated with behavioral health issues and help create community resources. • Broadband access to expand telehealth and enhance health information technology infrastructure. • Business support that help sustain integration efforts. Additional resources • Integrated care path continuum: www.colorado.gov/health innovation/levels-integrated-care • Practice transformation article series: www.colorado.gov/health innovation/sim-pt-series-2 • Cohort 2 page on SIM website: www.colorado.gov/health innovation/cohort2 n

Innovate. Integrate. Transform. www.colorado.gov/healthinnovation

Why

Innovate. Transform. Innovate. Integrate. Integrate. Transform.

integrate?

www.colorado.gov/healthinnovation www.colorado.gov/healthinnovation

Why Why integrate? 46%

46% of adults will experience mental health illness or a substance abuse disorder at some point in their lifetime*

integrate?

46% of adults will experience mental health illness or a 20% of primary care office substance abuse disorder at some 46% of adults will experience visits are mental health point in their lifetime*

46%

20%

46%

mental health illness or a related* substance abuse disorder at some point in their lifetime* 20% of primary care office visits are mental health related*

20%

67% of adults with a behavioral 20% of health primarydisorder care office do not get visits are mental health behavioral health treatment* related*67% of adults with a behavioral

67%

20%

health disorder do not get behavioral health treatment*

66% of primary care providers report they are unable connect 67% of to adults with a behavioral their patients with outpatient health disorder do not get 66% of primary care providers behavioral health providers due totreatment* a health report they are behavioral unable to connect shortage of mental providers their patients with health outpatient health providers due to a andbehavioral health insurance barriers*

67%

66%

shortage of mental health providers and health insurance barriers*

66% of primary care providers report they are unable to connect Colorado SIM Office *Sources available: their patients with outpatient 1570Colorado Grant St. SIM Office www.colorado.gov/healthinnovation *Sources available: behavioral 1570 Grant St.health providers due to a Denver, CO 80203 www.colorado.gov/healthinnovation shortage mental health providers Denver, CO of 80203 and health insurance barriers*

66%

Colorado Medicine for March/April 2017

Central Line: A win-win

Bringing your voice directly to the CMS boardroom The Colorado Medical Society launched Central Line in November 2016 and has already seen impressive member engagement. The Central Line platform brings a new and balanced approach to medical society governance, the first of its kind in the nation. Go to www.cms.org/central-line today to select your interest areas and communications preferences, and watch your email inbox to vote on important policy proposals before and after action by the board.

Since launching Central Line...

• 180 members selected

interest areas • 1,105 voted on policy pro posals • 697 voted whether the board “got it right” • 97% of 697 members ag reed that the board “got it right” on the first two policy proposals

Keep up the good wo rk! Your voice is heard! Central Line empowers members to give your board representative input before or after policy votes, give input to colleagues on policy proposals they submit to CMS, and submit policy proposals virtually 24/7.

Central Line is truly a revolutionary application because it will provide you with an unparalleled voice in CMS with just a few clicks of a mouse — all from the convenience of your desktop, laptop or mobile device – and make CMS a more grassroots responsive and effective organization. It’s a win-win.

The CMS Policy Office receives policy proposals and assigns the proposal to an Interest Area. Physicians who have self-selected to an Interest Area have the first opportunity to review and provide input on a proposed policy.

Immediately after the meeting, your board member will notify you of the BOD vote, and you can vote again whether the board “got it right” or not.

If a majority disagrees with the board, the policy will be reconsidered at the next meeting.

The 18-member CMS board of directors will discuss the proposed policy, informed by member input and comments, and vote.

Two weeks before a board meeting that the policy is scheduled for a vote, all members will receive a Central Line email or text from your board member that includes a link for your “yes,” “no” or “maybe” vote with a comment box. There is no log-in required for this step, just use the link in the email you receive.

Your board member will personally review your input and your comments before voting at the CMS board of directors meeting on policy proposals.

Colorado Medicine for March/April 2017

Features

Leadership skills series Chet Seward, Senior Director, Division of Health Care Policy

CMS members celebrate successful kickoff in February CMS members developed their skills in giving and receiving feedback and building social capital at the kickoff program of the Physician Leadership Skills Series on Feb. 11 in Denver. This was the first of eight exclusive programs in 2017 that provide free CME and necessary knowledge and skills for health care now and in the future to CMS member physicians, residents and medical students. Speaker Kathy Kennedy, DrPH, explained to attendees why giving and receiving feedback is difficult, but important. Being able to give and receive feedback is an essential skill that every physician needs in order to build trusting relationships and improve the performance of their care team. “Feedback is critical to team and individual success. These conversations are some of the most important team members will have with each other, yet they are often wrought with anxiety and discomfort.” When giving feedback, a positive experience doesn’t mean only sharing positive observations; it means creating a safe, positive environment where tough discussions can take place without derailing the relationship, she explained. Timing, permission, environment and thoughtful communication can all be factors in giving successful feedback. Success in receiving feedback can be achieved by being open and inquisitive, avoiding defensiveness, appreciating the difficult process of giving feedback, and acting on commitColorado Medicine for March/April 2017

ments to initiate new behaviors. It’s a “thank you, tell me more” mindset: recognizing that the person giving feedback is interested in your success and, instead of a using a defensive “but” to diminish the negative performance and protect your ego, asking for specific instances or examples to continue to improve. That opens up a “space” for effective feedback. Ideally, team members give feedback to one another and receive feedback regularly, on things that are going well in addition to things that need to be improved, Kennedy said. “Create a feedback culture” so it is easier to give or receive feedback when it is needed for improvement. Speaker Aaron Templer explained that the world is a place increasingly influenced by groups constructed socially. Especially given the exponential growth of technology, groups convene and influence each other and others through social groups. The currency traded in these groups is social capital – a learnable leadership discipline that’s accessed and shared through social networks: communities, families and organizations. It is jointly owned and used, and cannot be easily traded. These networks of relationships create a valuable resource – “durable obligations.” Those with well-developed social capital can use it for efficiency of action, knowledge creation and sharing, and maximized collaboration, and it can improve recruiting, hiring, career success, entrepreneurship and inno-

Program schedule, topics and locations April 22, 2017, 8 a.m. - 12 p.m. CMS headquarters - Denver 3.5 AMA PRA Category 1 Credits™ • Multi-generational workplace July 8, 2017 CMS headquarters - Denver • Communicating through the media August 2017 - TBD • Delegation September 2017 - TBD • Power of a positive no • Engagement - physician and employee November 2017 - TBD • Best practices in board service • Meeting management vation, to name a few, and give a person access to privileged information and opportunities. Building social capital requires maintaining trust by meeting expectations, and through shared values and behaviors. It’s a way to connect and align goals. Make plans to attend future events online or in person. See the full schedule, register for an upcoming program and learn more at www.cms. org/events/leadership-skills. n

Colorado Medicine for March/April 2017

Inside CMS

Ted J. Clarke, MD Chairman & CEO COPIC Insurance Company

COPIC’s medical student scholarship program Speaking from experience, medical school is a challenging time. There are long hours, vast amounts of information to learn, and large amounts of coffee consumed. Then there is the pressure of having to determine your path in health care. It’s a lot and any help to navigate through this can make a significant difference. The COPIC Medical Foundation focuses on supporting diverse medical students making this journey and investing in them to retain highly qualified physicians in Colorado. Since 2007, our foundation has provided partial scholarships for medical students who are preparing to become the next generation of physician leaders. In Colorado, the COPIC Diversity Scholarship Program is available for students at the University of Colorado School of Medicine and Rocky Vista University College of Osteopathic Medicine. Besides offering financial assistance, the scholarship program has a goal of supporting a multicultural student body. This translates into a diverse health care workforce, which improves communication between physicians and their diverse patient populations. Our foundation recognizes that health care is a team effort comprised of non-physician members who play a vital role. Therefore, we also offer scholarship funding for the Health Care Quality and Patient Safety certificate program at Regis University in Denver. This program focuses on the reporting of health care outcomes, analysis of data to support quality improvements, and managing patient safety and risk in the health care setting. Scholarship qualifications Scholarship recipients through the COPIC Diversity Scholarship Program are Colorado residents who have demonstrated a commitment to medicine and involvement in their community, and have the skills and tenacity to succeed in the practice of medicine. Recipients participate in a variety of COPIC-sponsored activities such as our Inside COPIC program, which provides an “inside” look at the world of medical liability and allows for interaction with COPIC’s leadership team. In addition, scholarship recipients are required to write a graduate-level research paper on a patient safety topic of their choice. Improving patient safety at all levels of care is embedColorado Medicine for March/April 2017

ded in COPIC’s culture, and our hope is that these papers offer new and unique insight that contributes to this area. Scholarship recipient profile Emily Moreno is a 2012 COPIC Diversity Scholarship Recipient from the University of Colorado. Today, she is part of the St. Joseph Internal Medicine Residency program and her focus is on primary care. “As a practitioner, I aspire to work for a nonprofit clinic serving the underrepresented and minority population of my community,” Moreno says. Over the course of her four years in medical school, the COPIC Diversity Scholarship allowed Emily to pursue her passion for becoming a primary care physician, relieving some of the financial pressure that accompanies medical school so she could focus on her education. “I am so excited to be able to stay in Colorado for residency and beyond!” she says. “I aspire to work closely with indigent populations utilizing my Spanish skills and providing primary care.” Medical school is an exciting time: students get to explore medicine and it inspires a sense of wonder in the capabilities of modern health care. COPIC is proud to support students during this period of their lives, and to date, our foundation has provided over $600,000 in scholarships. It’s an investment in the future of health care and those who will be at the forefront of making a difference. Want to know more about our foundation’s scholarship program? Please contact Lindsey Sidener at lsidener@copic.com or 720858-6071. n

Now scheduling CMS Regional Forums! CMS leaders are ready to travel to your community for a homegrown meeting open to all physicians. CMS staff will work with you or your component on event planning and execution. Email president@cms.org or call 720-858-6321

Inside CMS

Reflective writing is an important component of the CU School of Medicine curriculum. Beginning in the first semester, medical students write essays, stories or poetry that reflect what they have seen, heard and felt. Reflections is edited by Steven Lowenstein, MD, MPH, and Tess Jones, PhD. It is dedicated to the memory of Henry Claman, MD, Distinguished Professor of the University of Colorado, founder of the Arts and Humanities in Healthcare Program, and original co-editor of this column.

Rachel Sewell University of Colorado School of Medicine

Rachel Sewell is a third-year medical student interested in pursuing a career in pediatrics. One of her aspirations includes being a provider and advocate for pediatric patients in the LGBTQ community. She grew up in Golden, Colo., and received her undergraduate degree from Carnegie Mellon University. In order to stay sane she plays ultimate frisbee, runs, skis, lifts, plays board games, journals, and spends as much time as possible with family and friends.

Raw He could be sleeping. It could be natural. Except for the tubes and the fact that his lungs are not functioning without our help. He looks so peaceful. But I know that he is not sedated. He is not responsive and it is because of the brain damage and not from our interventions. His mother thinks it is due to medicines. I begin to explain his comatose state. She has questions that I cannot answer. I defer them to the attending who will be rounding soon. I feel lost and overwhelmed when faced with this tiny body. He is so small. So impressively vulnerable. My resident enters the room. She begins talking to the parents but does not realize he is not sedated. I clarify, but we have confused his parents and I feel guilty. Together we perform a neurological exam. It feels like we might as well 40

be pronouncing him dead. He continues to have reflexive movements in his legs that lead his parents to hope. I do not know how to explain these movements. My resident tells the parents that we will explain everything in a meeting. I am frightened by his state and my lack of words. As we leave the room, I feel like I need to run away from this little boy and his impending death. I present his case to the attending, and while I have the facts, I do not have anything to offer the family. I so badly want to offer hope, but as my attending walks me through his MRI, she confirms my fears. Her statement, “this is the worst MRI I have seen in my entire career,” continues to resonate with me to this day. She begins mobilizing the teams to bring the news to the parents. I follow her and feel so much better now that we have a purpose and direction. Really, any form of action is comforting. I cannot begin to process and so I enter the family meeting completely raw. The sheer number of physicians present alarms the parents. You can feel the energy in the room morph from fear to a somber sadness. There are tears and anger. My attending masterfully handles the conversation. As soon as we leave the room I break down. My attending hugs me and says it is ok for me to feel as tears well up in her eyes too. She says that every physician has their own way of handling these situations. She chooses to feel in the moment. It is comforting to know that this is a reasonable option in a field where I wondered if resilient meant stoic and unwavering. Turns out the tears work for me. I see the family again the next day. They decide to remove the tubes from their son. It is the hardest thing I did that day, but I manage to say, “I am so sorry that all of this has happened to you and your family” with more tears in my eyes. Through their own tears, they briefly smile at me and say thank you; those words are all I have for them and for a single moment it is enough. n Colorado Medicine for March/April 2017

Colorado Medicine for March/April 2017

Departments

medical news AMA physician survey quantifies time burdens of prior authorization process Kevin B. O'Reilly, editor, AMA Wire® What do you do 37 times in a given workweek? If you are a fervent coffee drinker, perhaps that is how often you refill your trusty travel mug. But if you are like the physicians recently surveyed by the AMA, 37 may be the number of prior-authorization (PA) requests that you and your hardworking staffers complete each week. That is just one of the alarming results of a new survey that demonstrates the toll prior authorization is taking on patients, physicians and medical practices.

medicines, medical services or procedures they need.

Those 37 weekly PA requests are just an average, based on a web-based survey of 1,000 physicians administered in December. To be included in the survey physicians must have provided 20 or more hours of care each week and completed at least some PA requests during a typical practice week.

Forty-four percent of doctors say PA requests “often or always” hold up care.

At the high end, 23 percent of respondents said they and their staff completed more than 40 prior-authorization requests in the week before taking the survey. Twenty-three percent reported they and their staff completed between 21 and 40 PA requests, while only 14 percent reported completing five or fewer.

Fax modems and phone trees Another maddening aspect of the priorauthorization rigmarole is how disconnected the process is from the rest of the clinical workflow and modern technology. In our computer age, the most commonly reported ways to complete PA requests remain the fax machine and the telephone. That is a draining burden for practices, as these time-consuming, antiquated methods interrupt the practice workflow and pull physicians and their staff away from patient care.

75% say burden is high Handling all those requests translates into a “high” or “extremely high” burden for 75 percent of physician respondents. Only 6 percent described the burden as “low” or “extremely low.” The time suck for medical practices is dreadful, with 22 percent of physicians reporting that they or their staffers spend more than 20 hours a week completing PA requests. The survey found that an average of 16.4 hours of physician and staff time each week is spent on completing PA requirements to get patients the 42

On an annual basis, that is nearly 853 hours consumed by prior-authorization tasks. The time burden is so great that about one-third of physicians have staff members who work exclusively on priorauthorization duties. Ninety percent of surveyed physicians reported that the PA process delays patient access to necessary care.

And those delays are often lengthy, with 26 percent of physicians saying that, in the prior week, they waited three business days or more on average to receive PA decisions from health plans.

Moreover, the prior-authorization exercise has acquired the flavor of a Sisyphean task. Eighty percent of physicians report they are sometimes, often or always required to repeat PA requests for prescriptions when the patient has already been stabilized on a treatment for a chronic condition.

clerical work that now consumes about half of physicians’ time in the office, while less than 30 percent of the day is spent on direct clinical care. These growing diversions from patient care serve as physicians’ biggest source of professional dissatisfaction. Clear path offered In mid-January, the AMA and a coalition of 16 other organizations (including the Colorado Medical Society) representing physicians, medical groups, hospitals, pharmacists and patients issued a comprehensive set of 21 principles designed to dramatically reshape the prior-authorization process. Among other things, the coalition calls for an end to repeated PA requirements for patients already stabilized on a medication for a chronic condition. The coalition also seeks industry-wide standardization of the PA process through electronic transactions that are incorporated into electronic health record systems. The 21 principles encompass clinical validity, continuity of care, transparency and fairness, timely access and administrative efficiency, and alternatives and exemptions. The AMA offers a variety of resources to help physicians address prior-authorization issues. In 2016, the AMA House of Delegates adopted in-depth policy on standardization and simplification of prior authorization. Several states have already passed legislation to protect patients from overly burdensome utilization-management requirements, with Delaware and Ohio among the most recent. View more online: www.ama-assn.org. n Reprinted from AMA Wire® wire.ama-assn.org

The PA process exemplifies the kind of Colorado Medicine for March/April 2017

Departments

medical news Connect for Health Supporting physician-centric organizations Colorado ranked No. 2 for new consumer shopping tool The Clear Choices Campaign, a thirdparty, non-partisan health care group, ranked the Connect for Health Colorado website second among the 12 statebased health insurance marketplaces plus HealthCare.gov in their second annual report card for health insurance marketplaces. The group represents patients, providers, insurers, employers and life science companies. Clear Choices reviewed the Quick Cost and Plan Finder tool developed by Connect for Health Colorado and ranked it for delivering a high-quality online experience allowing customers to evaluate key health plan details. According to a news release, only three marketplaces – DC Health Link, Connect for Health Colorado, and HealthCare.gov – offer all three decision-support tools considered the “gold standard” of informed consumer choice: an out-of-pocket cost calculator, integrated provider directory, and integrated drug directory. Connect for Health Colorado and the Center for Improving Value in Health Care (CIVHC) partnered to develop the Quick Cost and Plan Finder tool that enables consumers to see:

Top photo: From right: CMS President Katie Lozano, MD, FACR, right, presents a $5,000 check to Elizabeth Grace, MD, medical director of the Center for Personalized Education for Physicians (CPEP) in support of their programming to support physicians. Bottom photo, from right: Lozano presents a $5,000 check to representatives of the Colorado Physician Health Program (CPHP) – William “Bill” Wright, MD, MSPH, vice chair, CPHP Board of Directors; Angela M. Graham, MPA, CPHP donor relations manager; and Amanda L. Parry, MPA, CPHP director of public affairs – for their work on behalf of physicians.

Colorado Medicine for March/April 2017

• Whether they may qualify for financial assistance to lower their monthly premiums and other costs, such as copays and deductibles. • An estimate of annual out-of-pocket costs, based on their expected health care usage. • Plans that include their preferred doctors, facilities and/or medications. “We’re very proud of this honor from

Medical news (cont.) Clear Choices and believe we play a critical role in helping our customers get as complete a picture of their costs as possible when they shop for coverage on our Marketplace,” said Kevin Patterson, CEO of Connect for Health Colorado, in the news release. “When customers better understand the health insurance they choose, they are better equipped to get the full value of their health plan.” The tool equips consumers with an estimate of overall costs – including such things as co-pays, co-insurance and other out-of-pocket expenses – relying on data within the Colorado All Payer Claims Database (CO APCD), which is administered by CIVHC. “Shopping for health plans can be confusing, and this tool helps Coloradans understand how different plans may impact their out-of-pocket costs throughout the year,” said Ana English, president and CEO for CIVHC. “By combining CO APCD data with health plan data, we are providing a missing piece of the puzzle for customers making important health care decisions.”

classified advertising Publication of any advertisement in Colorado Medicine is not an endorsement by the Colorado Medical Society of the product or service. Colorado Medicine magazine is the official journal of the Colorado Medical Society and is authorized to carry general advertising.

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Colorado Medicine for March/April 2017

Features

the final word CMS, AMA and coalition contribute to blocking the mergers

Michael Volz, MD, Immediate Past President, Colorado Medical Society In a significant win for organized medicine, the physicians we represent and our nationâ&#x20AC;&#x2122;s patients, federal judges blocked the proposed Aetna-Humana and Anthem-Cigna mega-mergers, finding that they would have substantially lessened competition in the health insurance marketplace. This outstanding achievement was secured in no small part due to the work of Colorado Medical Societyâ&#x20AC;&#x2122;s professional advocates, who were actively and significantly involved in reaching this outcome. Most important, our board of directors and membership provided affirmation, testimony and information to the AMA and, subsequently, the United States Department of Justice and Colorado Attorney General Cynthia Coffman to characterize the negative impact on patients and our ability to provide care if these mergers were approved. In a stunning affirmation of the posi 46

tion urged by the AMA and a coalition of 17 state medical associations including CMS, the judge of the Anthem-Cigna case concluded that an enhanced ability to coerce physicians to accept lower reimbursement is not a merger efficiency defense. Further, it would not benefit consumers and would erode the relationship between insurers and providers, and reduce the collaboration that is essential to innovation in payment and delivery.

Georgia and the Connecticut State Medical Society began a strategic dialogue on forming the national-state coalition to block the mergers. We felt it was imperative to join with likeminded organizations that recognized the danger of lessening competition in the health insurance marketplace that would result in higher prices for consumers and further skew the balance of power toward the health plans.

The judge in the Aetna-Humana case found that the merger would have substantially lessened competition in Medicare Advantage and commercial health insurance markets. In an extraordinarily well-documented, comprehensive, fact-based ruling, he acknowledged that meaningful action was needed to preserve competition and protect high-quality medical care from unprecedented market power that Aetna would acquire from the merger deal.

This Block the Mergers Coalition convened for the first time in December 2015 and would go on to hold frequent coordination calls to keep the momentum rolling. Colorado spearheaded an all-member monopsony survey that was shared with other states. Together, the survey allowed the AMA to develop a crucial data set and to gather testimony from physicians around the country, sharing the results with the DOJ to build the cases to block the mergers.

Our work to oppose the mergers began in August 2015, during the very end of my term as president-elect, when we met with the Colorado Division of Insurance to express grave concerns about the consolidation of the health insurance market and to encourage the DOI to hold open and transparent hearings on the mergers. In September 2015, our board of directors designated the mergers as high CMS priorities and approved the development and distribution of an allmember survey on the topic.

Our collective work on both mergers with the AMA and the Block the Mergers Coalition is, without a doubt, a model for future advocacy success. This is the key tenet for our medical society and medicine in general: to be organized and keep in mind our mission in medicine. We should all lift up our colleagues who are members of CMS and remind them that these achievements are made possible by their support. We should also encourage our colleagues who are not members to join CMS and their local component medical society; medicine will continue to face challenges and we need to stand together with our patients. Together we are stronger. n

By October, leaders representing CMS, the American Medical Association, the Medical Association of

Colorado Medicine for March/April 2017

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