2013 November/December

November/December 2013 | Volume 19 | Number 6

CMA’S LEGISLATIVE WRAP-UP AND HOUSE OF DELEGATES HIGHLIGHTS PLUS:

Fraud and Abuse

at your dental plan It’s Open Enrollment time for the Santa Clara County Medical Association and Monterey County Medical Society sponsored Group Dental program. This plan is designed to help you, your family and your employees minimize the out-of-pocket expense of regular dental care.

This program helps you maximize your out-of-pocket savings by using network dentists, but also allows you to use any dentist you like and receive lower benefits. Following are many valuable benefits that can save you money: Annual Benefits of $2,000 per person for dental care, using network providers ($1,500 if you use non-network providers).

During Open Enrollment only, members may join as an individual or as a group with your employees.

Low, calendar year deductible of $50 per person ($100 per calendar year maximum for families).

Pay no deductible on oral exams, x-rays and routine cleanings.

Remember, the open enrollment period is available once per year. To be eligible for coverage, applications must be received during the special open enrollment period ending on January 1, 2014.

Call a Client Service Representative at 800-842-3761 for more information. Or visit www.CountyCMAMemberInsurance.com to download a brochure and application.

Sponsored by:

Underwritten by:

Underwritten by: (IL) - First Commonwealth Insurance Company, (MO) - First Commonwealth of Missouri, (IN) - First Commonwealth Limited Health Services Corporation, (MI) - First Commonwealth Inc., (CA) - Managed Dental Care, (TX) - Managed DentalGuard, Inc. (DHMO), (NJ) - Managed Dental Guard, Inc., (FL, NY) - The Guardian Life Insurance Company of America. All First Commonwealth, Managed DentalGuard, Inc. and Managed Dental Care entities referenced are wholly-owned subsidiaries of The Guardian Life Insurance Company of America. Products are not available in all states. Limitations and exclusions apply. Plan documents are the final arbiter of coverage.

61147 ©Seabury & Smith, Inc. 2013

AR Ins. Lic. #245544 • CA Ins. Lic. #0633005 d/b/a in CA Seabury & Smith Insurance Program Management 777 South Figueroa Street, Los Angeles, CA 90017 • 800-842-3761 CMACounty.Insurance@marsh.com • www.CountyCMAMemberInsurance.com

2 | THE BULLETIN | NOVEMBER/DECEMBER 2013

BULLETIN THE

Official magazine of the Santa Clara County Medical Association and the Monterey County Medical Society

700 Empey Way • San Jose, CA 95128 • 408/998-8850 • www.sccma-mcms.org

MEMBER BENEFITS

Feature Articles

Billing/Collections

8 CMA’s Legislative Wrap-Up

CME Tracking

22 Fraud and Abuse

Discounted Insurance Financial Services Health Information Technology

30 MICRA 34 House of Delegates 2013

Resources House of Delegates

Departments

Representation Human Resources Services

5 From the Editor’s Desk

Legal Services/On-Call Library

6 Message From the SCCMA President

Legislative Advocacy/MICRA

7 Message From the MCMS President

Membership Directory iAPP for the iPhone Physicians’ Confidential Line Practice Management Resources and Education

18 SCCMA Award Nominations 20 NORCAL, NORCAP, and SCCMA-MCMS/Anatomy of a Rebate 32 Five Inadvertent HIPAA Violations by Physicians

Professional Development Publications Referral Services With Membership Directory/Website

46 Medical Times From the Past 48 Welcome New Members 50 Classified Ads

Reimbursement Advocacy/ Coding Services

53 Member Benefits

Verizon Discount NOVEMBER/DECEMBER 2013 | THE BULLETIN | 3

The Santa Clara County Medical Association Officers President Sameer Awsare, MD President-Elect James Crotty, MD VP-Community Health Cindy Russell, MD VP-External Affairs Kenneth Blumenfeld, MD VP-Member Services Peter Cassini, MD VP-Professional Conduct Seham El-Diwany, MD Secretary Eleanor Martinez, MD Treasurer Scott Benninghoven, MD

Chief Executive Officer

Councilors

William C. Parrish, Jr.

El Camino Hospital of Los Gatos: Arthur Basham, MD El Camino Hospital: Imtiaz Qureshi, MD Good Samaritan Hospital: David Feldman, MD Kaiser Foundation Hospital - San Jose: Seema Sidhu, MD Kaiser Permanente Hospital: Anh Nguyen, MD O’Connor Hospital: Michael Charney, MD Regional Med. Center of San Jose: Richard Kline, MD Saint Louise Regional Hospital: Diane Sanchez, MD Stanford Hospital & Clinics: Michael Champeau, MD Santa Clara Valley Medical Center: Richard Kramer, MD

AMA Trustee - SCCMA James G. Hinsdale, MD

CMA Trustees - SCCMA Thomas M. Dailey, MD (District VII) Martin L. Fishman, MD (District VII) Susan R. Hansen, MD (Solo/Small Group Physician) Randal Pham, MD (Ethnic Member Organization Societies) Tanya Spirtos, MD (District VII)

BULLETIN

THE MONTEREY COUNTY MEDICAL SOCIETY

Printed in U.S.A.

OFFICERS

Editor

President Kelly O'Keefe, MD President-Elect Jeffrey Keating, MD Past President John F. Clark, MD Secretary Patricia Ruckle, MD Treasurer Steven Vetter, MD

THE

Official magazine of the Santa Clara County Medical Association and the Monterey County Medical Society

Joseph S. Andresen, MD

Managing Editor Pam Jensen

Opinions expressed by authors are their own, and not necessarily those of The Bulletin, SCCMA, or MCMS. The Bulletin reserves the right to edit all contributions for clarity and length, as well as to reject any material submitted in whole or in part. Acceptance of advertising in The Bulletin in no way constitutes approval or endorsement by SCCMA/ MCMS of products or services advertised. The Bulletin and SCCMA/MCMS reserve the right to reject any advertising.

Address all editorial communication, reprint requests, and advertising to: Pam Jensen, Managing Editor 700 Empey Way San Jose, CA 95128 408/998-8850, ext. 3012 Fax: 408/289-1064 pjensen@sccma.org © Copyright 2013 by the Santa Clara County Medical Association.

4 | THE BULLETIN | NOVEMBER/DECEMBER 2013

CHIEF EXECUTIVE OFFICER William C. Parrish, Jr.

DIRECTORS Paul Anderson, MD

John Jameson, MD

E. Valerie Barnes, MD

Jeff Keating, MD

Ronald Fuerstner, MD

Eliot Light, MD

James Hlavacek, MD

R. Kurt Lofgren, MD

David Holley, MD

AMA Trustee - mcms David Holley, MD

FROM THE EDITOR’S DESK

Joseph S. Andresen, MD Editor, The Bulletin

A Loss at Home or Just a Fumble in the First Quarter?

By Joseph S. Andresen, MD Editor, The Bulletin Fiasco, debacle, disaster, or the expected stumbling, turbulence, and havoc implementing monumental reform needing amendments, improvements, and recalibration? Such is the wide range of reaction to the launch of Healthcare.gov on October 1 and further implementation of the Affordable Care Act, the most far reaching health care reform since the enactment of Medicare on July 30, 1965.

“If you like your health plan, you can keep your health plan. Nobody is going to force you to leave your health plan,” President Obama stated in 2009, as health reform legislation was being debated. Unfortunately, this oversimplification turned out not to be true. As in prior years and with no new restrictions, some employers have dropped offered coverage to their employees. However, recently millions of Americans (over a million in California alone) received cancellation notices that their existing policies would not be offered starting on January 1, 2014.

The health care law dictates that new policies cover essential health benefits including outpatient care, ER visits, inpatient care, maternity care, mental health and substance abuse treatment, prescription drugs, rehabilitative care, lab tests, preventative services, and pediatric services.

It is true that the ACA does allow “grandfathered” status to health plans that existed on March 23, 2010. However, if health plans significantly raise co-payments or deductibles or if they significantly reduce benefits, they’ll lose their grandfathered status and their customers will get the same full set of consumer protections as new plans.

The good intentions and greater consumer protections offered by the ACA were no match for the political fallout. President Obama extended “grandfathered” status one additional year. However, the logistics of rewriting cancelled policies remain to be seen.

What about the problems with the Healthcare.gov website and very

low enrollment numbers seen so far? Is this another indication that the ACA is doomed to fail? Not so fast! Before we can come to that conclusion, let’s look at the rollout of mandated comprehensive health insurance in Massachusetts and the Medicare Part D prescription drug plan.

In Massachusetts, only 123 people signed up for Commonwealth Care during the first month of open enrollment in February 2007. Enrollees preferred to window shop, making an average of 18 different contacts with the website, call centers, and other sources before ultimately settling on a plan. Enrollment didn’t spike until December 2007, just before the deadline.

The same pattern was seen with the Children’s Health Insurance Program (CHIP) and George W. Bush’s Medicare Part D. “Enrollment in new programs begins slowly and often takes several months to build momentum, “ said Avalere CEO Dan Mendelson, whose firm has independently tracked enrollment.

The Congressional Budget Office estimates that 7 million enrollees will participate in the marketplaces in 2014; 9 million will sign up for Medicaid. By 2023, the exchanges will hold 24 million people, and the law’s Medicaid expansion will accompany another 13 million.

So, where will this all lead us?

To repeal, replace, and defund the ACA as many Congressional leaders have called for? Or to reform a broken system that costs far too much and leaves too many behind. Perhaps William Shakespeare offers appropriate words for our conundrum.

“There is a tide in the affairs of humankind (sic), Which taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures”. (from Julius Caesar)

Joseph S. Andresen, MD, is the editor of The Bulletin. He is board certified in anesthesiology and is currently practicing in the Santa Clara Valley area.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 5

MESSAGE FROM THE SCCMA PRESIDENT

SAMEER V. AWSARE, MD, FACP President, Santa Clara County Medical Association

Health Insurance Exchanges

By Sameer V. Awsare, MD, FACP President, Santa Clara County Medical Association The Affordable Care Act (ACA) requires each state to establish a health insurance exchange, or use the federal health insurance exchange, to provide health plan options to individuals. Open enrollment began on October 1, 2013, with plans going into effect on January 1, 2014. In California, the individual exchange is called Covered California, and it provides the ability for consumers to compare, purchase, and enroll in health plans. Eleven health insurance plans are offered and they are a mix of large non-profit and commercial plans, along with well-known Medi-Cal and regional plans.

There will be one benefit package offered with four main tiers of coverage within the exchange. Each tier offers a different actuarial value (Platinum – 90%, Gold – 80%, Silver – 70%, and Bronze – 60%) which reflects the percentage that a health plan will pay for covered “essential health benefits.” I will describe how Covered California will work for individuals interested in purchasing health insurance coverage and the potential impact on patients and physicians.

The individual exchange is government run and provides individuals with access to coverage from multiple health insurance carriers. By law, all health plans and health insurers cannot deny or drop insurance coverage based on pre-existing medical conditions or use of medical services. Covered California, which has had a slow start, but has had far fewer technical glitches than the federal exchange, allows individual consumers to log-in to their website and provide personal information to see if they are eligible for Medi-Cal and/or federal assistance with premiums or cost shares. Consumers will then be able to see what their premium, deductible, and out-ofpocket costs will be, before deciding whether to enroll. Once the consumer enrolls in an insurance company, the insurer then bills the consumer for the premium, minus any premium tax credits the consumer received.

Covered California also operates the Small Business Health Options Program (SHOP), which is designed specifically for small businesses with fewer than 50 full-time-equivalent employees. The SHOP consolidates the buying power of small businesses to offer more options for affordable health care coverage. The SHOP marketplace will provide consumers side-by-side health plan comparison, including benefits, premiums, and quality rankings. Employers and employees can research, compare, purchase, and enroll in the qualified health plan that fits their needs, as well as dental and vision plans, all through the SHOP website. The SHOP provides small businesses tax credits and will handle the enrollment, plan administration, and billing to help employers save time and resources. Also, employers will make only one monthly payment directly to the SHOP marketplace, no matter how many different insurers’ plans their employees select.

A private health insurance exchange is generally defined as a privately managed benefits plan. The value is that it presents groups the choice of health plans for their employees, ease of administration, and an alternative to current insurance market choices and public exchanges. Private exchang6 | THE BULLETIN | NOVEMBER/DECEMBER 2013

es are available to small and large groups, and even Medicare enrollees. Each private exchange can vastly differ from others in scope and offering. They typically include multiple carriers or a single carrier with multiple plans, two or more tiers of actuarial value medical benefits, fully insured and/or self-insured plans, ancillary benefits, consumer decision support tools, and a platform for administration, billing, and collection services.

Covered California presents an unprecedented opportunity to millions of uninsured Californians to obtain coverage and access to health care. On the other hand, the exchange board had to balance the competing interests of citizens, payors, consumer advocates, hospitals, and insurers. We have read in the media about problems with the exchange’s website and issues with getting people signed up on the exchanges. Also, the “three-month grace period,” which is currently being offered to enrollees receiving subsidized care, may be potentially problematic to physicians since during this grace period plans cannot terminate a consumer’s coverage for non-payment of premiums. They can, however, deny physician claims for services provided to patients who are delinquent on their premiums. The private health exchanges are a black box with payors and insurers developing these programs to suit their needs. Physicians need to carefully review any contracts that they get, before signing them. The “On-Call” document #7450 from CMA’s online health law library, www.cmanet.org/resource-library, includes a discussion on network adequacy, potential administrative burdens associated with exchange plans, the grace-period issue, concerns that physicians unknowingly may be contracted with exchange plans, what to look for in the mail on exchange plan contracting, and examples of termination provisions in current exchange contracts.

Given the fluid situation that is evolving in real time, physicians need to educate themselves about the exchanges. The California Medical Association (CMA) and the CMA Foundation, on your behalf, have submitted a joint application to Covered California for a portion of the $3 million set to be awarded as part of its provider education grant program. The program is expected to award grants to between three to six statewide organizations that will be responsible for educating health care providers about Covered California and how the exchange will operate come January 2014. The CMA and Covered California websites (www.cmanet.org/exchange and www. coveredca.com) are also great resources for physicians to keep abreast of developments as they unfold. I would strongly urge you to check these out, since this will benefit not only you, but your patients as well. SCCMA is happy to be your resource. If we don’t know the answer, we will find out and report back to you immediately.

On a different note, I want to wish you and your families a wonderful holiday season and a prosperous 2014!

Sameer V. Awsare, MD, FACP, is the 2013-2014 president of the Santa Clara County Medical Association. He is a board certified internist and is currently practicing with The Permanente Medical Group in Campbell.

MESSAGE FROM THE MCMS PRESIDENT

KELLY R. O'KEEFE, MD President, Monterey County Medical Society

The Best of Times, or the Worst of Times?

By Kelly R. O’Keefe, MD President, Monterey County Medical Society In October, I attended my first meeting of the California Medical Association House of Delegates. I did so as one of your alternate delegates, and came away quite impressed with the individuals who attended, with the structure provided by the CMA, and with the actual decision making processes of the HOD. Attending the meeting and watching the Affordable Care Act go live the past few weeks have together raised a Dickensian image in my mind. Listening to the recent national discussions about health care suggests the opening paragraph of A Tale of Two Cities, while the House of Delegates showcases a different way.

Many of us will recall part of the first paragraph of Dickens’ A Tale of Two Cities: “It was the best of times, it was the worst of times…” Perhaps fewer can remember the rest of the paragraph: “…it was the age of wisdom, it was the age of foolishness… some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”

When I initially thought about the first part of the sentence in isolation, I was able to convince myself that parts of the present condition of medicine deserve to be placed into each category. Today brings us treatment modalities that we can offer our patients that surpass anything available in the past. It also brings many of our patients a level of uncertainty about accessing those modalities that is unique in their lifetimes, and it brings us great uncertainty about the trajectory of our medical practices. The best of times; the worst of times.

The latter part of the opening paragraph, however, cautions me about attaching superlatives to my observations. Many of the discussions I read and hear about health care reform do suggest that the risk of becoming noisy is real for folks who are presented as authorities in these domains, using the term “noisy” both in the everyday sense of loud and also in the narrow technical sense of containing relatively scant information. When that happens, as seems common in our politicized and polarized discourse, the information content drops and, at least in my case, the listener’s irritation level rises.

My first exposure to the House of Delegates process, on the other hand, seemed to me to be a fine example of a different approach. Those of you who have been to previous sessions, some of you to many of them, have undoubtedly seen this before, but I observed aspects of thoughtful decision making that I think remain strengths of organized medicine. I saw ideas presented for adoption as CMA policy that were

new this year and ideas that had been presented previously. Some of the resolutions that were being presented again had been modified by their authors to address the limitations that had resulted in their not being adopted in prior years. Their authors still had a passion for change, but they had listened to their colleagues and were proposing change they expected to have a broader range of support among the delegates.

Many resolutions that came to the floor were adopted without floor debate. Many others were pulled by a delegate for debate on the floor. The speaker of the house controlled the debate according to parliamentary procedure, the author and supporters stated their opinions, opposing views were presented, amendments were offered, and the House accepted or rejected the amendments. Finally, the resolution, perhaps amended, might be adopted. In many cases, the resolution was adopted without change, or with a minimal change that made it acceptable to the majority. Occasionally, a resolution was initially offered that had substantial opposition as well as support. These resolutions frequently provoked debate that resulted in a middle ground that had some opposition from supporters of both the original resolution and opponents of the entire idea, but that was acceptable to the majority. And some resolutions were simply not adopted.

During the course of these debates, we heard from physicians practicing in solo practices and in very large groups, in rural and in urban settings, in remote clinics and in academic medical centers, from physicians who have been a visible part of their local medical societies and of the CMA for decades, and from those who are relatively new to active participation in organized medicine. All of their voices were heard, and it seemed we generally moved from “the superlative degree of comparison only” to an accepted middle ground. From my perspective, the resolutions that were adopted through this process were an improvement over the originals and provide a strong, equitable, and readily supportable framework for local medical societies and for the CMA to support our practice of medicine. Perhaps these are neither the best of times, nor the worst of times, then, but they are times to which organized medicine brings substantial benefits.

Kelly R. O’Keefe, MD, is the 2013-2014 president of the Monterey County Medical Society. He is a board certified pathologist and is currently CEO of Adaptive Clinical Solutions, Inc. NOVEMBER/DECEMBER 2013 | THE BULLETIN | 7

Year of challenges, victories The California Medical Association’s 2013 Legislative Wrap-Up

By Juan Carlos Torres, CMA Vice President of Government Relations his year turned out to be a challenging year for the California Medical Association (CMA). We knew going into the legislative session that 2013 would be a historic year, with the implementation of the Affordable Care Act (ACA) and the wave of legislative freshman. It lived up to our expectations.

With the beginning of each session, there are new legislators that come to Sacramento from all walks of life.

CMA’s government relations team is challenged with getting to know them, educating them on issues of importance to the physician community and identifying the physicians with whom they have—or should have—relationships. While the Legislature has had up to one third of its members turn over in any given year, this year a majority of legislators were new to Sacramento. The challenging task of educating the new 8 | THE BULLETIN | NOVEMBER/DECEMBER 2013

class was magnified. In addition, 2013 included 12 special elections that resulted from various vacancies created by departures and resignations.

CMA faced an unprecedented number of scope of practice expansion bills introduced in the Legislature. These scope bills were painted by supporters as necessary reforms to help implement the ACA. Those who wanted to expand scope had a key message: we need allied health professionals, including nurse practitioners, optometrists and pharmacists, to do more in order to prepare for the many Californians added to California’s health care system through the ACA implementation. Our message was simple: we will not jeopardize patient safety and we need to promote integration of allied health professionals, not fragment them as these proposals suggested.

We faced a concerted effort by the nurse practitioners, optometrists and pharmacists who joined together to push their agenda collectively. They put in significant resources to mount a public relations campaign and were actively pursuing newspaper editorial boards across the state to promote their agenda. With the help of our specialty partners and our local medical societies, CMA won the argument in the Capitol. We successfully defeated the attempt by nurse practitioners to gain independent practice in California, as well as efforts by optometrists seeking to diagnose and treat diseases in patients. CMA significantly narrowed the pharmacists’ proposal to ensure that they could provide reasonable services in an integrated and safe manner that promoted collaboration with physicians.

CMA also tackled the incorrect perception that physicians are at the center of the opioids overdose crisis occurring in California. Physicians recognize the need to help ensure appropriate prescribing and the need to tackle abuse and diversion of prescription drugs. We helped craft a proposal that will ensure that our state’s prescription monitoring program, CURES, will be upgraded and funded.

CMA also secured a streamlined application process for CURES, a requirement that a stakeholders group be consulted as the upgrade and maintenance occurs, and a reduced fee impact on physicians. Most importantly, there will be no mandated participation required of physicians.

A proposal that would have given the medical board overly broad power to discipline physicians for inappropriate prescribing was soundly defeated by CMA in an overwhelming fashion on the Assembly floor. CMA was also able to garner amendments to a bill that would have required coroners to report overdose deaths due to controlled substances to the medical board, to ensure that any reports submitted by coroners would remain confidential. (This bill, SB 62, was ultimately vetoed.) In addition, an effort to shift the investigative authority from the Medical Board of California to the Department of Justice was defeated.

The trial attorneys’ campaign to eviscerate the Medical Injury Compensation Reform Act (MICRA) was also in full gear this year. Trial attorneys invested heavily in three additional lobbyists and launched a public relations campaign titled “38 Is too Late,” and made several attempts to push a bill through the Legislature. All these efforts resulted in no action in the Capitol, not even the introduction of a bill, a major victory for CMA. While CMA is proud of our legislative victories this year, we understand that these battles will continue next year. Trial attorneys are initiating a ballot fight, allied

health professionals will continue to call for inappropriate scope expansion and legislators will continue to focus on prescription drug abuses. CMA will continue to be the voice of the physician community and is prepared to take on these challenges.

Many of our fights garnered significant media attention. The Sacramento Bee outlined the five major battles facing the Legislature in the closing month of session. Of the five battles, CMA was front and center on two—each of which CMA won!

Moving the Physician Agenda Forward CMA didn’t just play defense. CMA made significant progress in moving our proactive agenda forward this year.

After several failed attempts in years prior, CMA partnered with local legislators to successfully secure an annual $15 million appropriation to fully fund the University of California, Riverside School of Medicine, which will be the first new four-year medical school established in California in over 40 years. The effort began this year with two CMA-sponsored bills introduced by newly elected Inland Empire legislators (SB 21 and AB 27), but eventually the conversation shifted to the budget process. Following the approval of the funding in the 2013-2014 state budget, the school welcomed its first class of four-year medical students this fall.

The budget also included $3.9 million to upgrade the CURES database, $1.6 million of which was from the Medical Board of California contingent fund (licensing fees). The other professional licensing boards contributed the remainder. The funds are one time in nature and are exclusively for the upgrade of the database platform. While this funding was taken from medical board reserves, we were able to defeat attempts to have new licensing fees pay for this upgrade.

We also advanced our efforts to prioritize the need to increase Medi-Cal provider rates. There were two bills introduced in each house that called for this increase.

A new coalition, We Care for California, was formed to advocate for that increase. With CMA playing a key role and under the new We Care for California banner, thousands of health care providers from across the state converged on the state capitol in the largest ever health care rally in Sacramento. The historic event, called “WE ARE MEDI-CAL,” included administrators, physicians and frontline health workers from every region of the state.

CMA sponsored legislation addressing the need to NOVEMBER/DECEMBER 2013 | THE BULLETIN | 9

provide incentives to encourage physicians to practice in underserved communities. Addressing workforce issues, not scope expansion of allied professionals, is the long term solution to the physician distribution issues faced in California. Two CMA-sponsored bills (AB 565, AB 1288), both signed by Governor Brown, will encourage physicians to locate their practices in the Central Valley, Inland Empire and other underserved regions of our state.

There is no doubt that CMA faced a many battles this year, but thanks to the advocacy of the physician community and our government relations team, we won these battles. Bills that we opposed were either defeated or significantly amended to address our concerns. Our sponsored bills, with the exception of two, advanced to the Governor and have been signed. CMA has again demonstrated the important role it plays in shaping health policy in Sacramento. As always, CMA will be prepared to lead our state forward.

Below are details on the major bills that CMA followed this year.

CMA-Sponsored Legislation SB 21 (Roth): UC Riverside Medical School This bill appropriates $15,000,000 annually from the General Fund to the Regents of the University of California for allocation to the School of Medicine at the University of California, Riverside. According to a 2010 report by the California Health Care Foundation, the Inland Empire has the lowest ratio of primary care physicians and specialists of any region in the state. The Council on Graduate Medical Education, a federally funded and authorized group that assesses the physician workforce and reports to federal policymakers, recommends a minimum of 60 to 80 primary care physicians and 85 to 105 specialists per 100,00 people.

Sadly, the physician and specialist ratio in the Inland Empire is barely half of that recommended number.

The UC Riverside School of Medicine is a critical factor in addressing this need, and consistent state funding is needed for the school to maintain its accreditation.

Status: Signed by the Governor.

SB 640 (Lara): Medi-Cal: Reimbursement Provider Payments This bill seeks to restore the 10 percent Medi-Cal provider rate reductions contained in the 2011-12 state budget.

10 | THE BULLETIN | NOVEMBER/DECEMBER 2013

CMA has built a coalition of different providers who have been impacted by the cuts or who, like CMA, are still in court over their implementation. This bill would both eliminate the retroactive portion of the cuts as well as stop them going forward. This will help provide needed stability to the Medi-Cal system as the state prepares for full federal health reform implementation on January 1, 2014.

Status: Held in Senate Appropriations Committee.

AB 565 (Salas): California Physician Corps Program Ten years ago, CMA sponsored legislation to create the Steven M. Thompson Physician Corps Loan Repayment Program (STLRP) to increase access to primary care physicians in medically underserved areas. Although the STLRP has awarded more than $17 million to over 220 individuals, the high demand for this program means less than one third of applicants are awarded funding. Given the limited funds in this program, this bill will tighten the eligibility criteria of applicants to the STLRP and help identify gaps in placing physicians in the Central Valley, the Inland Empire and other underserved communities.

Status: Signed by the Governor.

AB 670 (Atkins): Therapeutic Substitutions This bill would prohibit pharmacists from receiving a financial incentive for recommending a patient receive a drug that is chemically different from the one prescribed by the physician, a practice known as therapeutic substitution. There has been an increase in consulting contracts with pharmacists that carve out a separate fee each time a therapeutic substitution is recommended.

Though the medicine may treat the same condition, the chemical ingredients are not the same. This often results in adverse side effects or ineffective treatment. Patients who are on medication to treat epilepsy or mental health conditions are particularly vulnerable. Therapeutic substitutions should be based upon the patient’s best interest, not a financial incentive.

Status: Held in Assembly Appropriations Committee.

AB 1003 (Maienschein): Employment of Physical Therapists CMA and the physical therapists had introduced competing bills this session, which were ultimately combined into one co-sponsored bill (see AB 1000).

CMA’s bill would clarify existing law to explicitly authorize medical corporations to hire persons licensed

under the Business and Professions Code, the Chiropractic Act or the Osteopathic Act. In November 2010, the Physical Therapy Board reversed decades-old policy that allowed physical therapy services to be provided by medical corporations. According to the California Employment Development Department, there are over 15,000 practicing physical therapists in California. Furthermore, California adds about 440 new physical therapy jobs each year. Nearly, 80 percent work in medical corporations, hospitals, home health care services and nursing care facilities. As a result, hundreds of physical therapists across California are at risk of losing their jobs.

Status: Assembly Business and Professions Committee – Hearing Postponed.

AB 1288 (V. M. Perez): Physician Workforce: Medically-Underserved Communities Assembly Bill 1288 will require the Medical Board of California and the Osteopathic Medical Board of California to develop a process to give priority review status to the application of an applicant who can demonstrate that he or she intends to practice in a medically underserved area or serve a medically underserved population. AB 1288 will not change the vigorous standards that govern these professions but will instead focus the board’s resources on the areas and populations with the greatest need.

Status: Signed by the Governor.

CMA Co-Sponsored Legislation SB 191 (Padilla): Emergency Room Funding Co-sponsored by the California American College of Emergency Physicians, this bill extends the sunset date to January 1, 2017. The bill raises approximately $50 million to augment local county emergency medical services funds in order to allow counties, hospitals and physicians to continue providing emergency services in their communities with these desperately needed funds.

Emergency care in California is in crisis. In the past decade, more than 65 emergency departments (EDs) have closed; ED visits are up; wait times continue to increase, and hospital diversion is on the rise. Without this bill, the law is set to expire on January 1, 2014.

Status: Signed by the Governor.

AB 1000 (Wieckowski and Maienschein): Physical Therapists: Direct Access to Services and Medical Corporation Employees CMA and the physical therapists had introduced competing bills this session, which were ultimately combined into one co-sponsored bill (AB 1000). The joint bill clarifies an existing ambiguity in the law so that physical therapists can continue to work within the legal boundaries of medical corporations as they have for decades (as was the intention of CMA’s solo bill). The combined bill also gives health care consumers the ability to seek treatment from a physical therapist without a physicians’ consent for a limited period of time. Although CMA had previously opposed attempts to authorize such “direct access,” we believe that the final language is an acceptable compromise. The bill does not expand or modify the scope of practice for physical therapists, including the existing prohibition on a physical therapists diagnosing disease.

Status: Signed by the Governor.

AB 1176 (Bocanegra): Primary Care Access: Residency Programs Co-sponsored by the California Academy of Family Physicians, this bill will follow the example of other states and create a funding source for underfunded medical residency training programs by drawing from private payers such as health insurance companies. According to the Council on Graduate Medical Education, 74 percent of California’s 58 counties have an undersupply of primary care physicians, with primary care physicians making up just 34 percent of California’s physician workforce.

Status: Held in Assembly Appropriations Committee.

AB 1208 (Pan): Insurance Affordability Programs: Application Form The provisions that impacted physicians were deleted. The bill now deals with demographic data collection. Therefore we are no longer co-sponsoring this bill.

Status: Vetoed by the Governor.

Opposed Legislation SB 117 (Hueso): Integrative Cancer Treatment This bill would prohibit a physician and surgeon, including an osteopathic physician and surgeon, from recommending, prescribing or providing integrative NOVEMBER/DECEMBER 2013 | THE BULLETIN | 11

cancer treatment, as defined, to cancer patients unless certain requirements are met. The bill would specify that a failure of a physician and surgeon to comply with these requirements constitutes unprofessional conduct and cause for discipline by the individual’s licensing entity. The bill would require the State Department of Public Health to investigate violations of these provisions.

Status: Author pulled bill from Senate Business and Professions Committee.

SB 266 (Lieu): Health Care Coverage: Out-of-Network Coverage This bill would prohibit a health facility or a provider group from holding itself out as being within a plan network or a provider network unless all of the individual providers providing services at the facility or with the provider group are within their network, or the provider group acknowledges to the patient in writing or verbally that individual providers within the provider group may be outside the patient’s plan network or provider network and the provider group recommends that the patient contact his or her health care service plan or health insurer for information about providers who are within the patient’s plan network or provider network. Those provisions would not apply to emergency services and care.

Status: Held in Senate Appropriations Committee.

SB 312 (Knight): Absences: Confidential Medical Services: Parent or Guardian Consent This bill would require the governing board of a school district to notify pupils in grades 9 to 12 and their parents or guardians, that school authorities may excuse a pupil from the school for confidential medical services who is 16 years of age or older without parental or guardian consent.

Status: Failed in Senate Education Committee.

SB 430 (Wright): Pupil Health: Vision Examination: Binocular Function This bill would, before first enrollment in a California school district of a pupil at a California elementary school, and at least every third year thereafter until the pupil has completed the 8th grade, require the pupil’s vision to be examined by an optometrist or ophthalmologist and require the examination to also include a test for binocular function and refraction and eye health evaluations. The binocular function examination does not need to take effect until the pupil has reached the third grade and 12 | THE BULLETIN | NOVEMBER/DECEMBER 2013

would require the parent or guardian of the pupil to provide results of the examination to the school district.

Status: Pulled by author in Assembly Health Committee.

SB 491 (Hernandez): Nurse Practitioners This bill gives nurse practitioners independent practice.

Under this bill, nurse practitioners will no longer need to work pursuant to standardized protocols and procedures or any supervising physician and would basically give them a plenary license to practice medicine.

Status: Held in Assembly Appropriations Committee.

SB 492 (Hernandez): Optometric Corporations This bill allows optometrist to practice ophthalmology.

Specifically, allows optometrists to (1) treat and diagnose any disease, condition or disorder of the visual system, the human eye adjacent and related structures, (2) prescribe and administer drugs including controlled substances, (3) perform surgical procedures with local or topical anesthetic, (4) order laboratory and diagnostic tests, (5) administer immunizations, (6) diagnose and initiate treatment for any condition with ocular manifestations.

Status: Pulled by author in Assembly Business and Professions Committee.

AB 591 (Fox): Hospital Emergency Room: Geriatric Physician This bill would require each general acute care hospital with an emergency department to have, at all times, a geriatric physician serving on an “on-call” basis to that department.

Status: Pulled by author.

AB 975 (Wieckowski): Health Facilities Community Benefits This bill would declare the necessity of establishing uniform standards for reporting the amount of charity care and community benefits a facility provides to ensure that private nonprofit hospitals and nonprofit multispecialty clinics actually meet the social obligations for which they receive favorable tax treatment.

Status: Failed on Assembly Floor.

ACA 5 (Grove): Abortion: parental notification This measure, which would be known as the Parental Notification, Child and Teen Safety, Stop Predators Act, would prohibit a physician and surgeon from performing

an abortion on an unemancipated minor, as defined, unless the physician and surgeon or his or her agent has delivered written notice to the parent of the unemancipated minor, or until a waiver of that notice has been received from the parent or issued by a court pursuant to a prescribed process.

which an insured individual may submit for the purpose of specifying disclosable medical information and insurance transactions and permissible recipients.

Status: Re-referred to Assembly Health and Assembly Judiciary Committees.

SB 304 (Lieu): Healing Arts: Boards (Neutral) The bill is the sunset extension bill for the Medical Board of California. Significant issues raised by CMA (expert witness, 820 evaluations) were addressed in CMA’s favor.

While the proposed transfer to the Department of Justice was rejected, the bill does transfer investigations to the Division of Investigators at the Department of Consumer Affairs.

Other Bills of Interest SB 20 (Hernandez): Health Care: Workforce Training (Support) This bill would transfer all available funds left over in the Department of Managed Health Care’s Managed Care Administrative Fines and Penalties Fund to the Steve Thompson Physician Corps Loan Repayment Program, upon dissolution of the Major Risk Medical Insurance Program.

Status: Held in Assembly Appropriations Committee.

SB 62 (Price): Coroners: Reporting Requirements: Prescription Drug Use (Neutral) This bill would expand those provisions to require a coroner to make a report when he or she receives information that indicates a death may be the result of prescription drug use and to require the coroner to additionally file the report with the Medical Board of California.

Status: Vetoed by the Governor.

SB 47 (Yee): Firearms: Assault Weapons (Support) This bill seeks to reestablish the original intent of the assault weapon ban by slowing down the process of easily reloading a firearm. For several years, gun makers have manufactured assault weapon with a magazine locking device called the “bullet button,” which requires a tool, which may include a tip of a bullet, a magnet, or a glove, to disengage the magazine yet allow for the easy reloading.

Since a tool is used to disengage the ammunition feeding device, the firearm’s magazine is not classified as “detachable” and the firearm in question is legal.

Status: Held in Assembly Appropriations Committee.

SB 138 (Hernandez): Confidentiality of Medical Information (Watch) The bill would define additional terms in connection with maintaining the confidentiality of this information, including an “authorization for insurance communications,”

Status: Signed by the Governor.

Status: Signed by the Governor.

SB 352 (Pavley): Medical Assistants: Supervision (Support) This bill would prohibit a nurse practitioners, certified nurse-midwife or physician assistant from authorizing a medical assistant to perform any clinical laboratory test or examination for which the medical assistant is not authorized.

Status: Signed by the Governor SB 439 (Steinberg): Medical Marijuana (Watch) This bill codifies the Attorney General’s “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use” and specifies that medical cannabis dispensaries that adhere to the guidelines will not be subject to prosecution for marijuana possession or commerce.

Status: Pulled by author in Assembly Health Committee.

SB 493 (Hernandez): Pharmacy Practice (Neutral) This bill, as introduced, would have expanded the scope of practice for pharmacists to include administering drugs and biological products that have been ordered by a prescriber and expanded other functions pharmacists are authorized to perform. These functions include, among other things, the furnishing of specified drugs including prescription smoking-cessation drugs; ordering and interpreting tests for the purpose of monitoring and managing the efficacy and toxicity of drug therapies; and to independently initiate and administer routine vaccinations. The introduced version of the bill also specified additional functions that may be performed by an advanced practice pharmacist, including performing

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 13

physical assessments and certain other functions. The author has accepted numerous amendments offered by CMA, which have the potential to improve access to vaccines for children and access to nicotine based smoking cessation products for adults seeking to end their addiction to tobacco products. The bill requires that all prescriptions be administered under a protocol with a physician. This will help improve the communication and coordination between the patient, their physician and their pharmacists.

Status: Signed by the Governor.

SB 494 (Monning): Health Care Providers: California Health Benefit Exchange (Support) This bill is sponsored by the Physician Assistants and seeks to amend statue to include physician assistants as primary care providers and to increase the number of enrollees assigned to physician assistants in Medi-Cal managed care plans. The bill maintains that physician assistants must operate under the supervision of a physician.

Status: Signed by the Governor.

SB 495 (Yee): Postsecondary Education Employees: Physicians (Support) This bill would require the California State University (CSU) to increase the compensation of physicians employed at student health centers on campuses to be is comparable to the compensation earned at the University of California (UC). The bill would request the UC to increase the compensation of physicians employed at student health centers on campuses of the UC if the compensation of physicians employed at a student health center on a different campus of the UC is increased.

Status: Held at the Assembly Desk.

SB 598 (Hill): Biosimilars (Support) This bill would allow a pharmacist to substitute an interchangeable biosimilar medication when filling a prescription for a biologic medication. SB 598 mirrors California’s patient protections for generic pill substitution and adds a provision that requires a pharmacist to enter information about the substitution into the patient record system or notify the physician within five days after a substitution is made.

Status: Vetoed by the Governor.

SB 615 (Galgiani): Prevailing Wages: California Health Facilities Financing Authority Act (Neutral) 14 | THE BULLETIN | NOVEMBER/DECEMBER 2013

While the bill was moved out of the Assembly Appropriations Committee, the provisions of interest to CMA were removed. As a result, we are no longer co-sponsoring this legislation.

Status: Vetoed by the Governor.

SB 670 (Steinberg): Physicians and Surgeons: Drug Prescribing Privileges: Investigation (Support, after significant amendments) CMA was able to secure amendments that deleted the provisions that would have expanded the Medical Board of California’s authority to limit a physician’s prescribing authority with a lower standard of evidence. With the deletion of these provisions, the bill simply made clarifying improvements to the medical board authority.

Status: Signed by the Governor.

SB 809 (Desaulnier): Controlled Substances: Reporting (Support) This bill would provide ongoing funding for the CURES database by requiring the Medical Board of California and other health professionals’ licensing boards to charge licensees who are authorized to prescribe or dispense controlled substances a fee of $6 annually. The bill also makes changes to the CURES authorizing statute to clarify that the database is a clinical tool and to simplify prescribers’ and dispensers’ enrollment into the database.

Status: Signed by the Governor.

SBX1 1 (Hernandez): Medi-Cal: Eligibility (Support) This bill implements the expansion of federal Medicaid coverage in California (Medicaid is known as Medi-Cal in California) to low-income adults with incomes between 0 and 138 percent of the federal poverty level, establishes the Medi-Cal benefit package for this expansion population, and requires the existing Medi-Cal program to cover the essential health benefits contained in the Patient Protection and Affordable Care Act (ACA). This bill implements a number of the Medicaid ACA provisions to simplify the eligibility, enrollment and renewal processes for Medi-Cal. Status: Signed by the Governor.

SBX1 2 (Hernandez): Health Care Coverage (Support if Amended) This bill applies the individual insurance market reforms of the Affordable Care Act to health care service plans

(health plans) regulated by the Department of Managed Health Care and updates the small group market laws for health plans to be consistent with final federal regulations.

Status: Signed by the Governor.

SBX1 3 (Hernandez): Health Care Coverage: Bridge Plan (Watch) Requires Covered California (the state’s health benefit exchange) to establish a “bridge” plan product by contracting with Medi-Cal managed care plans for individuals losing Medi-Cal coverage (for example, because of an increase in income), the parents of Medi-Cal or Healthy Families Program children, and individuals with incomes below 200 percent of the federal poverty level. Limits enrollment in bridge plan products only to eligible individuals.

Status: Signed by the Governor.

AB 154 (Atkins): Abortion (Support) This bill would make it a public offense, for a person to perform an abortion if the person does not have a valid license to practice as a physician and surgeon, except that it would not be a public offense for a person to perform an abortion by medication or aspiration techniques in the first trimester of pregnancy if he or she holds a license or certificate authorizing him or her to perform the functions necessary for an abortion by medication or aspiration techniques. With the provisions for training in the bill and the amendments that clarify physician supervision, AB 154 addresses patient safety while expanding access for these services.

Status: Signed by the Governor.

AB 209 (Pan): Medi-Cal: Managed Care: Quality and Accessibility (Support) This bill creates the Medi-Cal Managed Care Health Care Quality and Transparency Act of 2013. The goal of the measure is to require the Department of Health Care Services to develop and implement a plan to monitor, evaluate and improve the quality and accessibility of health care and dental services provided through Medi-Cal managed care. This is meant to emulate the open government approach of the Managed Risk Medical Insurance Board/MRMIB’s operation of the Healthy Families program, which was eliminated in 2012 and all enrolled children were moved into Medi-Cal. Status: Ordered to inactive file at the request of the author.

AB 361 (Mitchell): Medi-Cal: Health Homes for Medi-Cal Enrollees and Section 1115 Waiver Demonstration Populations with Chronic and Complex Conditions (Support If Amended) Current federal law authorizes a state, subject to federal approval of a state plan amendment, to offer health home services to eligible individuals with chronic conditions.

This bill would authorize the Department of Health Care Services, to create a health home program for enrollees with chronic conditions as authorized under federal law.

Status: Signed by the Governor.

AB 446 (Mitchell): HIV Testing (Support) After amendments taken in Senate Health Committee, this bill eliminates the requirement for written documentation of informed consent prior to administering an HIV test in non-clinical settings. Additionally, the bill requires timely delivery of the test results along with other pertinent information, tailored to whether the results are positive or negative, by the medical care provider or the person who administers the test to the patient. The bill no longer requires that every blood draw in emergency departments, public health clinics, or urgent care centers be tested for HIV. Instead, the bill now only requires primary care clinics to offer patients having a blood draw an HIV test. Lastly, the bill allows for the online posting of HIV antibody test results if the results are posted on a secure internet website, which can be accessed only with the use of personal identification number provided the patient at the time of testing.

Status: Signed by the Governor.

AB 459 (Mitchell): Public Contracts: Healthy and Sustainable Food (Support) This bill would clarify and strengthen the state’s existing nutrition guidelines for food and beverages sold in vending machines on state properties. It would also increase incrementally the percentage of foods sold in vending machines that meet the nutrition guidelines from the current 35 percent to 100 percent by January 1, 2017.

Status: Held in Assembly Appropriations Committee.

AB 860 (Perea): Medical School Scholarships (Support) This bill, upon appropriation by the Legislature, would transfer $600,000 in penalty monies levied by the Department of Managed Health Care to fund the Steven M. Thompson Scholarship Program. CMA sponsored AB 589 (Perea) in 2011, which created the scholarship NOVEMBER/DECEMBER 2013 | THE BULLETIN | 15

program, but due to state budget constraints, the bill only allowed for private donations to fund the program.

Status: Held in Assembly Appropriations Committee.

AB 880 (Gomez): Medi-Cal Program Costs (Support) This bill would require large employers of 500 or more employees to pay an “employer responsibility penalty” for each covered employee enrolled in Medi-Cal. The funding generated by the penalty could be appropriated by the Legislature for a variety of different purposes: to increase Medi-Cal provider rates, to provide a supplemental Medi-Cal payment for providers in medically underserved areas, to fund residency programs, to provide payment for the nonfederal share of Medi-Cal, to increase provider reimbursement rates, and to provide reimbursement to county hospitals, community clinics, and other safety net providers. Although the ACA requires employers pay a penalty for employees enrolled in state exchanges (a penalty based on the employers entire workforce, not just the number of individuals enrolled in the exchange), there is no such provision for employers who reduce their employees hours or wages to make them Medi-Cal eligible. Given the current beleaguered state of the Medi-Cal system, coupled with the strains that are expected as a result of the Medi-Cal expansion in 2014, the system will not be able to handle the influx of new lives resulting from large employers cutting employee wages. AB 880 incorporates portions of another CMA-sponsored bill, AB 1176 (Bocanegra), which was held in the Assembly Appropriations Committee earlier this year.

Status: Assembly Inactive File – vote failed.

AB 1139 (Lowenthal): Prescriptions: Biosimilar Products (Watch) This bill would authorize a pharmacist filling a prescription order for a biological product subject to the Federal Food, Drug, and Cosmetic Act to select a biosimilar product, provided that product is deemed by the federal Food and Drug Administration to be interchangeable with the prescribed product.

Status: Assembly Business and Professions Committee hearing postponed.

AB 1263 (Pérez): Medi-Cal: CommuniCAL (Watch) This bill would require the Department of Health Care Services, to establish the Medi-Cal Patient-Centered Communication program (CommuniCal), to be administered by a 3rd-party administrator, to, commencing 16 | THE BULLETIN | NOVEMBER/DECEMBER 2013

July 1, 2014, provide and reimburse for medical interpretation services to Medi-Cal beneficiaries who are limited English proficient.

Status: Vetoed by the Governor.

AB 1308 (Bonilla): Midwifery (Watch) This bill would require the Medical Board of California to, by July 1, 2015, revise and adopt regulations defining the appropriate standard of care and level of supervision required for the practice of midwifery and indentifying complications necessitating referral to a physician.

Status: Signed by the Governor.

ABX1 1 (Pérez): Medi-Cal: Eligibility (Support) This bill enacts statutory changes necessary to implement the coverage expansion, eligibility, simplified enrollment and retention provisions of the Patient Protection and Affordable Care Act of 2010 as amended by the Health Care and Education Reconciliation Act of 2010 related to the Medicaid Program (Medi-Cal in California) and the California Children’s Health Insurance Program.

Status: Signed by the Governor.

ABX1 2 (Pan): Health Care Coverage (Support if Amended) Reforms California’s individual market in accordance with the Affordable Care Act and applies its provisions to insurers regulated by the California Department of Insurance in the individual market; requires guaranteed issue of individual market health insurance policies; prohibits the use of preexisting condition exclusions; establishes open and special enrollment periods consistent with the California health benefit exchange (Covered California); prohibits conditioning issuance or offering based on specified rating factors; prohibits specified marketing and solicitation practices consistent with small group requirements; requires guaranteed renewability of plans; and permits rating factors based on age, geographic region and family size only.

Status: Signed by the Governor.

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Santa Clara County Medical Association 700 Empey Way • San Jose, CA 95128 • 408/998-8850 • FAX 408/289-1064 December 2013 TO:

All Members, Santa Clara County Medical Association (SCCMA)

FROM:

James Crotty, MD, Chair, 2013-2014 Awards Committee

At the 2014 Medical Association’s annual banquet, the association will honor several individuals with its perpetual awards. These awards are significant honors which reflect the respect, recognition, and appreciation of our membership. The recipients are selected from among our outstanding members who have distinguished themselves with extraordinary service to medicine in general, to the association, to the community, or to medical education.

Selections are made by the Awards Committee, with the aid of input from the membership at-large.

Your suggestions for recipients for each of the awards, outlined on the next page of this memo, will be appreciated.

Please complete the form below to submit suggestions, keeping in mind the requirements for each award as listed on the opposite page. If you would like to nominate more than one person, or for more than one award, please photocopy this form or send a letter.

Suggestions must be received by February 15, 2014. Thank you for your recommendations.

If you previously suggested a candidate who was not given an award, please feel free to resubmit that name.

I THINK ______________________________________________________ WOULD BE A GOOD CANDIDATE FOR THE _____________________________________________________________________________________ . (Name of Award) PLEASE ATTACH ALL SUPPORTING INFORMATION, INCLUDING ACCOMPLISHMENTS AND CONTRIBUTIONS THAT WILL HELP THE AWARDS COMMITTEE EVALUATE THE CANDIDATE FOR THE AWARD SELECTED. YOU MAY MAIL, FAX, OR EMAIL THE INFORMATION TO PAM JENSEN AT SCCMA. SUBMITTED BY: __________________________________________________________________________________ MD (Please print) MAIL FORM TO: SCCMA

Attn: Pam Jensen

700 Empey Way

San Jose, CA 95128 EMAIL: pjensen@sccma.org FAX: 408/289-1064 DEADLINE: February 15, 2014 18 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Santa Clara County Medical Association

Annual Awards

ROBERT D. BURNETT, MD LEGACY AWARD

For a physician member of the Medical Association who has demonstrated extraordinary visionary leadership, tireless effort, selfless long-term commitment, and success in challenging and advancing the health care community, the well-being of patients, and the most exalted goals of the medical profession. The only four recipients of this award are Robert D. Burnett, MD, Philipp Lippe, MD, Robert Pearl, MD, and Sharon Levine, MD.

BENJAMIN J. CORY, MD AWARD

For a physician member of the Medical Association who has displayed forward-looking, pioneering ideas, enterprise, enthusiasm, and prolonged professional stature and ability.

AWARD FOR OUTSTANDING ACHIEVEMENT IN MEDICINE

For a physician member of the Medical Association who, during his/her medical career, has made unique contributions to the betterment of patient care, for which he/she has achieved widespread recognition. Consideration shall be given to research and/or the development of procedures, methods of treatment, pharmaceutical agents, or technological advances in the field of medicine.

AWARD FOR OUTSTANDING CONTRIBUTION TO THE MEDICAL ASSOCIATION

For a physician member of the Medical Association who has exhibited sustained interest and participation in one or more activities of the Association over and above that expected of the membership at-large.

AWARD FOR OUTSTANDING CONTRIBUTION IN MEDICAL EDUCATION

For a physician member of the Medical Association who has exhibited sustained interest and participation in one or more medical education activities over and above that expected of the membership at-large.

AWARD FOR OUTSTANDING CONTRIBUTION IN COMMUNITY SERVICE

For a physician member of the Medical Association who has exhibited sustained interest and participation in one or more activities of the community over and above that expected of the membership at-large.

CITIZEN’S AWARD

For an individual who is not a member of the Medical Association, who has achieved public recognition for a significant contribution in the health field. (This usually will be a non-physician, although physicians are not categorically excluded.)

1994

Benjamin J. Cory, MD Award

Outstanding Outstanding Contribution To The Contribution In Medical Association Medical Education

Outstanding Achievement In Medicine

Robert W. Jamplis

Richard M. O’Neill

John B. Shinn

Thomas J. Fogarty

1995

---

Robert W. Andonian

Ronald L. Kaye

Norman E. Shumway

1996

Christopher C. Chow

David M. Rosenthal

William C. Fowkes

Thomas A. Stamey

1997

---

Bernice S. Comfort

Robert J. Frascino

1998

Mansfield F. W. Smith

Stanley D. Harmon

Howard R. Porter

1999

Donald J. Prolo

Steven S. Fountain

2000

Sharon A. Bogerty

2001 2002 2003

--Robert M. Pearl ---

Outstanding Contribution In Community Service Arthur A. Basham / Arthur L. Messinger ---

Citizen’s Award Gary W. Steinke, MD / Mrs. Pamela Steinke Mr. Howard W. Pearce

Cindy Lee Russell / Minoru Yamate

Florene Poyadue, RN

Michael R. Fischetti

Suzanne Jackson, RN

Burton D. Brent

William A. Johnson

Judge Leonard Edwards

C. Michael Knauer

Jack S. Remington

M. Ellen Mahoney

Rigo Chacon

Stephen H. Jackson

Theodore Fainstat

Richard P. Jobe

Barbara C. Erny

Janet Childs

Roger P. Kennedy

Bert Johnson

Nelson B. Powell / Robert W. Riley

Robert Michael Gould

Tony & Brandon Silveria

Elliot C. Lepler

Allen H. Johnson

Bruce A. Reitz

David Morgan

Tom Campbell / Ted Lempert

Joseph E. Mason, Jr.

Anthony S. Felsovanyi

David A. Stevens

Martin D. Fenstersheib

Michael E. & Mary Ellen Fox

---

2004

Robert Wuerflein

Eugene W. Kansky

Barry Miller

D. Craig Miller

Elizabeth Menkin

Jayne Haberman Cohen, DNSc

2005

Harvey J. Cohen

Richard L. Miller

Gus M. Garmel

Rodney Perkins

Elouise Joseph

Doris Hawks, Esq.

Arthur A. Basham

Robert W. R. Archibald

G. David Adamson

Harmeet S. Sachdev

Edward A. Hinshaw, Esq.

2006

---

2007

Stephen H. Jackson

Cindy L. Russell

Catherine L. Albin

John R. Adler, Jr.

Madhur Bhatnagar

Debbi Ricks

2009

Bernadette Loftus

Martin L. Fishman

George P. Kent

Thomas Krummel

Seham El-Diwany

Peggy Fleming-Jenkins

2010

Melvin Britton

James G. Hinsdale

David Levin

Gary Steinberg

Leo Strutner

Judge Lawrence Terry

Tanya Spirtos

Dennis Siegler

Robert Armstrong

Gary Silver

Kathleen King

2011

---

2012

Steven S. Fountain

Robert Gould

William Jensen

Eleanor Levin

David Quincy

Assemblymember Jim Beall

2013

James G. Hinsdale

Stephen C. Henry

Rosaline Vasquez

Diane E. Craig

Jeffrey D. Urman

Congresswoman Anna Eshoo

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 19

member benefits

NORCAL, NORCAP, and SCCMA/MCMS Anatomy of a Rebate In today’s legal climate, it’s difficult to believe that there was a time when medical malpractice suits were so infrequent and the cost of liability insurance was so low that the California Medical Association included professional liability insurance as a no cost benefit of membership.

Although this idyllic situation came to an end after World War II, reasonably priced malpractice coverage remained available in California until the 1960s, when a new class of aggressive and creative personal injury attorneys identified physicians as ideal targets for contingency fee litigation. By the late ’60s, million dollar policy limit demands became common, and medical malpractice insurers began to raise premiums and withdraw from big metropolitan markets. In May of 1973, the major Northern California malpractice insurer no longer had the necessary reserves to continue writing malpractice insurance and withdrew from the state after non-renewing all of its policyholders. Many of our physicians recall the ensuing malpractice crisis of 1975: many physicians left or threatened to leave California, many refused to treat any-butemergency cases, many went “bare,” and many refused to practice at all until the situation was satisfactorily resolved.

Jerry Brown, then serving his first term as governor, called the legislature into emergency session to deal with the situation, and in an uncharacteristically short amount of time, MICRA (the Medical Insurance Claims Reform Act) was passed.

The same year, Northern California physicians banded together at the county medical association level to form NORCAP – the Northern California Physicians Council – which, in turn, formed NORCAL Mutual – a new kind of policyholder-owned medical liability insurance company. Founded by and for physicians, the company’s vision was and continues to be to insure and defend policyholders against nonmeritorious claims, while disseminating information on best practices to avoid liability pitfalls.

As a Mutual Insurance Company, NORCAL’s policyholders are its stockholders. Profits realized by the company, in excess of operating costs and necessary reserves, are returned to its policy owner-stock-

holders in the form of a premium credit. This year, for the 34th time in the past 36 years, NORCAL has declared an $11.7 million dividend in California and Alaska, which is about 10% of the 2013 premium – the same level as last year. This brings the total amount of declared dividends to date to $453.7 million. Eligible insureds will see the dividend applied as a premium credit on their 2014 renewal statements.

Its commitment to aggressive defense of policyholders, its grassroots origin and corporate philosophy, and its continued extensive local involvement with sponsoring medical societies are a few of the reasons why the Santa Clara County Medical Association and Monterey County Medical Society endorse NORCAL as their preferred provider of medical professional liability insurance.

This year, for the 34th time in the past 36 years, NORCAL has declared an $11.7 million dividend in California and Alaska, which is about 10% of the 2013 premium – the same level as last year.

20 | THE BULLETIN | NOVEMBER/DECEMBER 2013

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FRAUD

&ABUSE WHAT PHYSICIANS NEED TO KNOW TO COMPLY WITH STATE AND FEDERAL LAWS

M

ost physicians strive to work ethically, providing highquality medical care to their patients and submitting proper claims for payment. Unfortunately, the presence of some dishonest individuals has created the need for laws that combat fraud and abuse in the health care system. This trend has intensified with the passage of federal health reform legislation in 2010.

The laws covering “fraud and abuse” have proliferated and broadly prohibit activities, some of which physicians may have in the past undertaken in good faith. Depending on the law, violations may be punishable by criminal and civil penalties, civil monetary penalties, payment suspensions, mandatory or discretionary exclusion from state and federally funded health programs, including Medicare, and other sanctions such as licensure actions or asset forfeitures.

This article examines the most important fraud and abuse laws that apply to physicians.

kickback statute prohibits knowingly and willfully offering, soliciting, paying or receiving remuneration (essentially anything of value), directly or indirectly, in exchange for or to induce patient referrals for which payment can be made under a federal health program, or to induce recommending or arranging for the purchase of items or services covered by a federal health program.

The statute has been interpreted broadly to include any kind of compensation, and to apply so long as one purpose of the compensation is to induce referrals. Violation of the statute is punishable by a $25,000 fine and up to five years imprisonment and is grounds for exclusion from the Medicaid and Medicare programs.

Violation of the statute also exposes the violator to civil monetary penalties. The statute and accompanying regulations, however, provide safe harbor provisions that, if met, guarantee compliance with the law.

_________________________________________________________________________

CMA On-Call

_________________________________________________________________________

Throughout this article, you will find references to “CMA On-Call” documents. On-Call is the California Medical Association’s online health law library. On-Call documents are available free to members at www.cmanet.org/cma-on-call. Nonmembers can purchase documents for $2 per page. _________________________________________________________________________

Anti-kickback laws

_________________________________________________________________________

Both California and federal law prohibit kickbacks and fee splitting by physicians and other health care providers. The federal anti-

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 23

The California law is similar to the federal antikickback statute. The California statute prohibits licensed health care professionals from offering, accepting or receiving consideration (in the form of money or otherwise) as compensation or inducement to refer patients, clients or customers. Unlike the federal statute, which only applies to referrals of patients whose medical services are paid by a government health care program such as Medicare, the California statute applies to referrals irrespective of the payor (including commercial payors).

While the California statute does not include regulatory safe harbors, it includes broad statutory exemptions, such as the payment of fair market value compensation for services other than the referral of patients. Violation of the law is a criminal offense that is punishable by up to one year in prison or fines up to $50,000.

For more information on anti-kickback laws, see California Medical Association (CMA) On-Call document #1151, “Prohibitions Against Kickbacks and Fee-Splitting.” On-Call documents are available free to members in CMA’s online resource library at http://www.cmanet.org/cma-on-call. Nonmembers can purchase documents for $2 per page. _____________________________________________________

Self-Referr al Laws

_____________________________________________________

Both state and federal law prohibit physicians from referring patients for goods or services in which the physician or physician’s immediate family has a financial interest, with some exceptions.

In general, federal self-referral laws (known as the “Stark” laws) prohibit a physician from

making a referral to an entity for the provision of certain “designated health services” (including hospital inpatient and outpatient services) if the physician has a financial relationship with the entity, unless the arrangement fits within an exception. If the self-referral prohibition applies and an exception is not applicable, the physician may not make a referral to the entity for designated health services covered by Medicare and the entity may not, directly or indirectly, bill for any designated health services resulting from a prohibited referral.

California also broadly prohibits physician selfreferral of patients pursuant to the Physician Ownership and Referral Act of 1993, which is also known as the Speier Act. The California statute applies to all patients regardless of who pays for the health care services. California’s statute also provides a broad exception allowing physicians to refer patients to a hospital with which they have a financial relationship, so long as the hospital does not pay the physician for the referral and any equipment lease between the parties satisfies certain requirements.

For more information on self-referral laws, see CMA On-Call document #1156, “Self-Referral Prohibitions (Federal and California).”

OIG clarifies how to disclose health care fr aud voluntarily The U.S. Department of Health and Human Services Office of Inspector General (OIG) has updated its “Provider Self-Disclosure Protocol,” in an attempt to make reporting potential fraud and returning overpayments less painful for practices and facilities.

In 15 years, more than $280 million has been returned to federal health programs through a self-disclosure process, where physicians and hospitals voluntarily report instances of false Medicare billing, antikickback violations or the like. In the new publication, OIG has provided more transparency about the process, including what is expected from physicians and how to have a successful resolution.

24 | THE BULLETIN | NOVEMBER/DECEMBER 2013

The OIG document also details how to disclose certain types of fraud and abuse, such as false billing, employing an individual on the OIG exclusions list and potential anti-kickback and physician self-referral violations.

Physician practices uncovering instances of potential fraud can achieve a more favorable outcome when disclosing systemic problems voluntarily, rather than having them discovered by the government or brought to the government’s attention by a whistleblower. Practices face tougher penalties when the OIG initiates a fraud finding.

The OIG Provider Self-Disclosure Protocol is available at https://oig.hhs.gov/ compliance/self-disclosure-info/files/Provider-Self-Disclosure-Protocol.pdf.

A new threat from an old fr aud law _____________________________________________________________________

Civil Monetary Penalty Law

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The federal civil monetary penalty law prohibits hospitals from knowingly paying, directly or indirectly, physicians to “reduce or limit services” provided to Medicare and Medicaid beneficiaries who are under the direct care of the physician.

According to the U.S. Department of Health and Human Services Office of the Inspector General (OIG), which enforces the law, whether the services are medically necessary or prudent, is irrelevant under the civil monetary penalty statute.

The OIG also believes that payments to incentivize use of comparable, but less expensive items (i.e., product substitution) violate the law, because it limits choices. Violations are punishable by fines of up to $2000 per patient, which can be assessed against both the hospital and the physician.

While there are guidelines, exceptions and safe harbors to the civil monetary penalty law, anti-kickback and self-referral laws, this area of law is ripe for government enforcement. As such, it is critical that physicians obtain counsel with respect to any physician-hospital alignment arrangement. For more information, see CMA On-Call document #1103, “Fraud and Abuse (Federal and California Law),” and #0312, “Physician Alignment Models” _____________________________________________________________________

Antitrust Laws

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Antitrust laws prohibit conduct that has unreasonable anticompetitive effects. These laws generally prohibit conduct by or among two or more competitors, such as contracts, combinations and conspiracies that unreasonably restrain trade, or by single entities that become so large that they become a monopoly. The basic objective of antitrust laws is to eliminate practices that unreasonably interfere with free competition, so that each business has a fair opportunity to compete on the basis of price, quality and service. These laws should be considered when physicians, hospitals, payors and other providers integrate, collaborate or otherwise coordinate their activities.

Because of the important economic underpinnings reflected in antitrust laws, penalties for violating them are significant.

Criminal violations of the Sherman Act, for example, are felonies punishable by imprisonment for up to three years and/ or fines of up to $350,000 for individuals and $10 million for corporations per violation. A criminal conviction virtually assures civil liability. Judgments for civil violations often run in the millions, particularly since a private party can recover three times the amount of damages actually sustained and recover

The Affordable Care Act (ACA) gives the government more power and dedicates more money to improving federal efforts against health care fraud, waste and abuse. The ACA expands an old law, the False Claims Act (FCA), and places physicians’ business practices under the microscope like never before.

The statute, enacted in 1863 during the Civil War, protects against the submission of fraudulent claims by government contractors and enforces strict penalties for such violations. The ACA expanded the reach of the law and made it easier for federal investigators to launch FCA cases against alleged violators.

Of 2,309 civil and criminal cases — including FCA cases — opened in 2012 by the U.S. Department of Health and Human Services Office of Inspector General (OIG), 21 percent involved physicians, compared with about 15 percent in 2010, according to OIG data.

Under the FCA, a violation occurs when a person knowingly presents, or causes to be presented, a false or fraudulent claim for payment; knowingly creates, uses or causes a false record; or conspires with others to issue such a record or claim.

For physicians, a broad range of scenarios put them afoul of the FCA, including filing false codes for payment, making improper referrals and participating in Medicare kickback schemes. Physicians can face treble damages (i.e., three times the amount of collections received as a result of the false claims) and civil fines for violating the FCA, a percentage of which might go to compensate whistle-blowers who first alerted the government to the alleged fraud.

Violations also can bring increased monitoring going forward or exclusion from government programs.

While criminal health fraud enforcement has targeted hot spots such as California, Florida, New York and Texas, FCA investigations have not been as geographically focused.

The first step to complying with FCA requirements is to know what the rules are and how they apply to individual physician practices. The OIG provides general compliance guidance to all health professionals, but particular risk areas vary depending on industry circumstances.

Physicians should implement written policies, procedures and standards of conduct related to compliance expectations. Such documentation should identify how compliance issues are investigated and resolved in your practice, and it should include policies of non-intimidation and non-retaliation for employees who report potential violations.

Promoting overall transparency and a culture of compliance also is important.

Physicians should maintain detailed records and report any potential violations to authorities immediately, as and when appropriate. All levels of employees, from senior management to entry-level workers, should receive regular compliance training.

For more information on avoiding fraud and abuse in the Medicare and Medicaid programs, visit the OIG website at https://oig.hhs.gov/compliance/physician-education.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 25

Internet coupon sites may put physicians in violation of state and feder al kickback laws In an effort to boost a medical practice, a number of physicians have begun offering discounts for their medical services through internet-based coupon companies (e.g., Groupon). While each deal varies, typically the physician agrees to give the coupon company a percentage of the revenue obtained by the physician from patients using the coupon (reports suggest as high as 50 percent) in return for the company’s promotion of the practice through various types of coupons or “daily deals.”

other costs and attorneys’ fees incurred in prosecuting the action— fees which often exceed a million dollars.

The primary risk to physicians using such third-party coupon programs is that they may run afoul of state and federal antikickback laws that provide, among other things, that it is unlawful for a physician to offer any discount or other consideration as compensation or inducement for referring patients, or to split professional fees with a party who procures patients for, or refers patients to the physician.

Organizations, see CMA On-Call document #0300, “Legal and Practical Considerations Concerning Accountable Care Organizations (ACOs).”

Even if the patients obtaining the benefits of such coupons are cash-based and noninsured, the activity may raise significant legal issues for physicians. Accordingly, physicians should act with great caution in this area and only after obtaining the advice of an attorney experienced in health care fraud and abuse laws.

The California Medical Association has confirmed that the Medical Board of California is looking at this issue with respect to its legality under California’s Medical Practice Act. For more, see CMA On-Call document #0104 “Practice Promotion Through ThirdParty Coupons.” For general information on physician advertising, see CMA OnCall document #0102, “Advertising by Physicians.” For more information on the state and federal kickback prohibition, see CMA On-Call document #1151, “Prohibitions Against Kickbacks and FeeSplitting.”

26 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Antitrust violations can arise, for example, if a physician-hospital alignment arrangement becomes so large that it is exercising substantial market power in the relevant area. Similarly, to the extent a hospital and physician organization are otherwise competing organizations, an alignment between them could conceivably be challenged as a restraint of trade unless they are sufficiently integrated for purposes of the antitrust laws.

For more information on antitrust laws, see CMA On-Call document #1000, “The Antitrust Laws: What Physicians Can Do.” For more information on antitrust laws as they relate to Accountable Care

__________________________________________________________________________

Tax Exempt Status

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Tax laws are implicated when a hospital, or a 1206(ℓ) medical foundation, is tax exempt pursuant to Internal Revenue Code §501(c) (3). Health care issues have received priority by Internal Revenue Service (IRS) enforcers for a number of years. In general, in order to qualify for tax exemption under Section 501(c)(3), an entity must be organized and operated exclusively for charitable purposes, with no part of its earnings going to the benefit of a private shareholder or individual. The IRS looks to a number of factors when evaluating the qualifications of a health care organization for tax exemption.

While the burdens of maintaining tax-exempt status, and liabilities for failing to do so, generally rest with the tax-exempt organization, penalties can also be imposed on private parties (which could include physicians if they are in a position of influence at a tax-exempt organization) who receive “excess benefits” in a transaction with a tax-exempt organization. Accordingly, physicians who exercise influence with a tax-exempt organization should be scrupulous in conducting business with that organization.

For more information, see CMA On-Call document #0305, “Legal and Practical Considerations Concerning Medical Foundations.” Physicians are strongly urged to consult with qualified legal counsel because the requirements for qualification and maintenance of Section 501(c)(3) taxexempt status are extremely detailed and complex.

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micra update

As MICRA Threat Reemerges, Physicians Stand to Defend the Law

By Richard Thorp, MD President, California Medical Association When trial lawyers announced earlier this year that they were working to scrap California’s Medical Injury Compensation Reform Act (MICRA), the California Medical Association (CMA) warned that the campaign would be riddled with lies, misdirection, and below-the-belt shots designed to fool the public into thinking the trial lawyers’ efforts were anything more than an outright money grab.

Unfortunately, we didn’t know how right that warning would prove to be.

Since its passage, MICRA has been under near-constant attack from those who place the prospect of a higher payday above the overall health and well being of California residents. While, time and time again, MICRA has weathered the storm, the law is under siege once again. This time, MICRA is facing the greatest threat yet, as trial lawyers aim to put more money in their own pockets at the expense of patients across the state.

Driven by greed and the promise of inflated attorney fees, California trial lawyers have renewed their fight to lift MICRA’s cap on speculative, non-economic damages, presenting ballot language that seeks to more than quadruple the maximum award for non-economic damages to roughly $1.1 million.

While trial lawyers have postured and threatened major action on MICRA before, this latest effort is made credible by the nearly one million dollars the lawyers recently put into a ballot measure committee. The proposed ballot language, put forward by a trial lawyer front group inappropriately named Consumer Watchdog, was cleared by the Attorney General for MICRA opponents to begin collecting signatures to place the measure on the November 14 ballot. Trial lawyers and their allies are bankrolling the proposed initiative.

With money on the table and signature gatherers on the street, it’s clear that MICRA opponents are serious about overturning the law in 2014.

If successful, these efforts would be devastating to California’s health care system. More meritless lawsuits will lead to reduced patient access to our health care professionals – and fewer options for affordable, quality health care – especially in rural and underserved communities. With federal health care reform expanding coverage for millions of additional patients, California is already struggling to provide access to care for the neediest and most vulnerable patients. If this ballot initiative is successful, it will only make the situation worse—even longer lines in emergency rooms, extended waits for appointments with specialists and reduced access to women’s services like OB/GYNs. This measure will make health care professionals, including doctors, nurses, and other providers, less accessible – not more accountable, as claimed by the trial lawyers.

30 | THE BULLETIN | NOVEMBER/DECEMBER 2013

A broad-based coalition of nearly 1,000 groups and organizations led by CMA—including doctors, nurses, dentists, hospitals, Planned Parenthood and community health centers and clinics, among others—has emerged to protect access to care across the state.

While the latest fight over MICRA has now taken its first steps toward the ballot box, CMA and its allies have already notched several key victories in this fight, and remain committed to defeating the initiative push in its entirety.

The Threat Emerges

This latest assault on MICRA began with all the theatrics and deception that has come to be expected from California trial lawyers and their faux-grassroots front group, Consumer Watchdog.

In early May, Consumer Watchdog President Jamie Court held a press conference in front of the California Capitol announcing his organization’s intent to overturn MICRA, either through legislation introduced in the final months of the 2013 legislative session, or through a ballot initiative brought before California voters. During the conference, Court nefariously painted physicians as believing they were above the law, and in some cases, completely apathetic to the pain and suffering experienced by victims of medical malpractice.

Despite drawing only a small crowd and being unable to expand much upon their intentions during the May press conference, Court and his followers eventually made good on their threat of introducing a ballot measure, submitting language in early July that calls for MICRA’s cap on subjective non-economic damages to be raised from $250,000 to $1.1 million, with automatic annual increases every year thereafter. The ballot measure came only after Consumer Watchdog and others unsuccessfully tried to pressure the legislature to address the issue.

The central intent of the proposed ballot language is nothing more than a thinly-veiled money grab by California’s trial attorneys, who stand to make hundreds-of-thousands-of-additional-dollars on every malpractice case, should the cap be changed. However, since most voters would not support that provision, it also calls for physician drug testing and a bolstering of the state’s Controlled Substance Utilization Review and Evaluation System (CURES).

Currently, MICRA protects patients involved in medical liability lawsuits by allowing unlimited economic compensation for any and all economic or out-of-pocket costs, including past and future lost income and earning capacity, all necessary medical care, as well as unlimited punitive damages. Under MICRA, patients can also receive up to $250,000 for noneconomic pain and suffering damages. This allows legitimate medical liability cases to move forward while discouraging lawyers from filing frivolous suits. MICRA also limits how much lawyers can take as payment, ensuring more money goes to patients, not lawyers.

The trial lawyers’ measure would not only nearly quadruple MICRA’s non-economic damages cap from $250,000 to $1.1 million—it would also triple the legal fees that lawyers receive.

While the trial lawyers get rich, everyone else pays. More lawsuits mean higher health care costs for everyone. An analysis by California’s former independent legislative analyst found that this measure would increase health care costs for consumers and taxpayers in California by nearly $10 billion annually.

Pandering in the Capitol

MICRA opponents also attacked the Capitol, where members of the Legislature were returning from their summer recess and preparing to begin the final legislative push for the 2013 session.

Knowing that legislation attempting to scrap MICRA would never survive the vetting process typical of a full session, opponents sought to find an author willing to use the so-called “gut-and-amend” action to avoid public scrutiny provided through the regular legislative process to push an anti-MICRA bill through the Legislature in the final days, or even hours, before the Assembly and Senate adjourned for the year.

In its effort to locate an author, as well as drum up opposition to MICRA, Consumer Watchdog began conducting daily mail drops featuring their “38 is too late” campaign to legislative offices. The canvassing project targeted physicians as being unsympathetic to their patients’ needs, and portrayed MICRA as a barrier to victims seeking restitution for medical malpractice. Nowhere in Consumer Watchdog’s literature did it mention that medical malpractice victims are entitled to unlimited economic damages—such as lost wages, earning capacity and medical expenses—under California law. Nor did it mention that lawyers would stand to make more money should MICRA be overturned.

To combat this effort, CMA and a host of allies—including labor groups, public safety entities, allied health care professionals, and municipal interests—inundated members of the Legislature with facts supporting MICRA’s efficacy, warning that altering the cap would adversely impact local governments, community clinics, and insurance premiums for all Californians.

In the end, MICRA’s supporters emerged victorious, as trial attorneys were unsuccessful in getting anti-MICRA legislation introduced during the most recent session.

Cheap Shots and Scare Tactics

Shortly after being defeated in the state Capitol, MICRA opponents decided it was time to start playing dirty. In late September, Consumer Watchdog distributed a mail piece featuring the names of hundreds of California physicians who it claims are afraid to “pee in a cup,” while also personally targeting CMA Past President, Paul Phinney, MD, asking what he had to hide by opposing the trial attorneys’ greed-fueled initiative to gut MICRA. Oddly enough, the trial attorneys’ mailer makes no mention of the proposed initiative’s attempt to nearly quadruple MICRA’s cap on non-economic damages and exponentially increase their fees, and sticks to the more voter-friendly provisions regarding substance abuse in the workplace.

The attack was a brazen one, illustrating that the state’s trial lawyers and their puppet organization, Consumer Watchdog, will stop at nothing to line their pockets through the inflated attorney fees that would be generated from MICRA’s cap being lifted.

These cheap shots continued, however, when representatives from Consumer Watchdog crashed CMA’s annual House of Delegates conference in Anaheim, hosting a press conference outside of the conference center before circling the streets with a video truck broadcasting the message that “doctors should pee in a cup.”

While these attacks may sting for those who are personally targeted, they also illustrate one fact – MICRA opponents are desperate.

In the months since trial lawyers launched their latest assault against MICRA, California physicians and other allies have rallied to MICRA’s defense at a near-historic rate. Funds are being raised at record numbers, and physician engagement with the issue grows every day. As a result, Consumer Watchdog and other MICRA opponents are stooping to new lows in an attempt to intimidate those who have come to MICRA’s defense.

These deceitful attacks by MICRA opponents will continue, and will get worse as the November 2014 election cycle ramps up. Physicians, however, must continue to advocate for MICRA and ensure that our patients and practices are not jeopardized by the greed of those who would like to see MICRA fall.

Rest assured, CMA will win this fight, but will need all physicians in order to do so. To find out how you can help, visit www.cmanet.org/micra today.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 31

practice management

By Tracey Haas, DO, MPH Co-Founder, DocbookMD

Doctors do not plan ahead to violate HIPAA, but in this digital age, they may be doing it because they did not plan ahead. The recent final rule of the HITECH Act outlines that even if the physician is unaware of the violation, they may be fined a civil penalty of $100 - $50,000 per violation. It is time for even the most resistant doctors to pay attention to how they handle protected health information (PHI). Here, we will outline five common ways physicians are breaking HIPAA/HITECH privacy and security rules, and may not even know it.

32 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Texting PHI to Members of Your Care Team

It’s a simple scenario: you’ve just left the office, and your nurse texts you that Mr. Smith is having a reaction to the medication you’ve just prescribed. She has included his name and phone number in the text. You may know that texting PHI is not legal, but feel justified because it is a serious medical issue. Perhaps you even believe that deleting the text right away will protect you – and Mr. Smith.

In reality, this text message with PHI has just passed from your nurse’s phone, through her phone carrier, to your phone carrier, and then to you – four vulnerable points where this unencrypted message could either be intercepted or breached. In a secure messaging app, this type of message must be encrypted as it passes through all four points of contact. Ideally, both sender and recipient should be verified and have signed a business associate agreement (BAA).

Taking a Photo of a Patient on Your Mobile Phone

To some this will sound silly, to others it is as common as verifying a rash with a colleague or following the margins of a cellulitis day by day.

Simple enough, but if these photos are viewed by eyes they are not intended for, you may be in violation of your patient’s privacy. It’s important to be aware of where and how patient information and images are stored.

Apps that allow you to take a secure photo are just as important as sending the message securely. DocbookMD allows photos to be taken within the secure messaging app itself – never stored on your phone or within your phone’s photo album. Always use this type of feature when taking any photo of a patient or patient information.

Receiving Text Messages From Your Answering Service

Many physicians believe if they receive a text message from a third party, like an answering service, they are not responsible for any violation of HIPAA – this is simply not true.

Many services do send a patient’s name, phone number, and chief complaint via SMS text. The answering service may verify it is encrypted on their end, but if PHI pops onto the physician’s screen, it is certainly not secure on their end – and this is where the physician’s responsibility lies. Talk with your answering service today to see how they are protecting you at both ends of the communication.

Not Reporting a Lost or Stolen Device That Contains PHI

Losing your smartphone or tablet is a pain for many reasons, but did you know that if you have patient information on that device, you could be held responsible for a HIPAA breach if you do not report the loss right away. The ability to remotely disable an app that contains or handles PHI is an absolute must for technology that handles communications in the medical space. Be sure to ask for this feature from any company claiming to help you be HIPAA-compliant in the mobile world.

Remember: Being HIPAA-compliant is an active process. A device can claim to be HIPAA secure, but it is a person who must ensure compliance.

References:

The ONC’s official site for mobile devices and HIPAA: http://www. healthit.gov/providers-professionals/your-mobile-device-and-healthinformation-privacy-and-security?gclid=CLvawcuVt7cCFStp7AodZGQA Ug

DocbookMD partners with SCCMA-MCMS to bring SCCMA-MCMS/CMA member physicians a free, HIPAAsecure messaging app that uniquely provides you extra security to avoid each of these potential pitfalls. Do not hesitate to reach out to DocbookMD today for more information at www.docbookmd.com or at 1-888/930-2048.

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Allowing Your Child to Borrow Your Phone That Contains PHI

Many folks allow their kids to play with their phones – maybe play games on apps while in the car. If your phone has an app that can access PHI, then you may be guilty of a HIPAA breach if the information is viewed by or sent to someone it is not intended for. The simple fix is to utilize the pin-lock feature on your messaging app – and for double-protection, always password protect your phone!

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tzweig@tracyzweig.com w w w. t r a c y z w e i g . c o m NOVEMBER/DECEMBER 2013 | THE BULLETIN | 33

HOD 2013 CMA delegates set policy at annual meeting

34 | THE BULLETIN | NOVEMBER/DECEMBER 2013

ore than 500 California physicians convened in Anaheim October 11-13 for the 2013 House of Delegates (HOD), the annual meeting of the California Medical Association (CMA). Each year, physicians from all 53 California counties, representing all modes of practice, meet to discuss issues related to health care policy, medicine and patient care and to elect CMA officers.

Over 90 resolutions were introduced and debated in reference committees on Friday, October 11. Over the next two days, the complete house met again to debate and vote on reference committee recommendations. A total of 63 resolutions were adopted.

As a first step toward a “virtual� reference committee process that will enable a shorter,

two-day meeting in future years, Reference Committee A (Science and Public Health) conducted all testimony online in advance of the meeting. All CMA members were invited to participate in the debate, and nearly 300 online comments were recorded. The committee members then met via web conference in advance of the meeting to develop their recommendations, which were presented to the House for floor debate on Saturday afternoon.

The House also elected a new president, Paradise internist Richard Thorp, M.D., while Humboldt surgeon Luther Cobb, M.D., was tapped as president-elect.

The following are summaries of some of the resolutions that were adopted as policy. (The full actions of the HOD are available at cmanet.org/hod.)

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 35

House of Delegates 2013 Increased reporting of immunizations Resolution 104-13 The delegates approved a resolution that encourages increased reporting of patient immunizations to the California Department of Public Health for purposes of vaccination, disease control and prevention.

HIV and STDs: Consent requirements for testing Resolution 109-13 The delegates voted to support revision of HIV consent requirements to allow all health care providers to order a test for HIV when appropriate and to encourage routine HIV testing for all patients that are evaluated for other sexually transmitted diseases.

Graphic health warnings on tobacco products Resolution 115-13 Delegates called on CMA to support the use of graphic image labeling on cigarette and other tobacco packaging that warns of the health impact of smoking.

Legal blood alcohol limit for drivers Resolution 118-13 Delegates endorsed the National Transportation Safety Board’s 2013 recommendation that the legal blood alcohol limit for operating a motor vehicle be decreased from .08 percent to .05 percent or lower.

Food insecurity screening Resolution 122-13 The delegates directed CMA to promote that providers need to identify children and adults who are food insecure to avoid detrimental development and co-morbidities and to refer them to appropriate programs and services.

Elimination of CMS outpatient observation status Resolution 211-13 The delegates directed CMA to request that the Centers for Medicare and Medicaid Services eliminate its

36 | THE BULLETIN | NOVEMBER/DECEMBER 2013

“outpatient patient observation� status, which is placed upon patients whose anticipated hospital stay is 48 hours or less. Delegates noted that this practice places undue financial burden on patients and creates administrative hassles for physicians.

Health exchange benefit designs and tax deductibility of out-of-pocket expenses Resolution 401-13 The delegates called on CMA to support efforts to develop benefit designs in the health benefit exchange that appeal to the young and healthy to boost the risk pool; and to support legislation allowing federal and state income tax deductibility of all out-of-pocket health care expenses.

Reimbursement for telephone/electronic patient management Resolution 407-13 The delegates asked that CMA support legislation requiring health insurance companies to pay physicians for telephone or other electronic patient management services.

National health information exchange Resolution 501-13 The delegates called on CMA to support the development of a secure, interoperable, nationwide health information exchange network.

Paradise internist elected CMA president

Richard Thorp, M.D., FACP, was installed as the 146th president of the California Medical Association (CMA) at the close of the association’s 2013 House of Delegates, held October 11-13 in Anaheim.

“I will not compromise the honor of this profession for the victory of the moment. I will not capitulate or surrender. I will fight to protect this profession you hold so dear,” Dr. Thorp said as he addressed the 500 physician delegates in attendance. “In this critical time, the house of medicine cannot afford to do business as usual. We cannot afford the status quo. We must come with the audacity to create a dream and a vision for the future of medicine and health care in California.”

Dr. Thorp told the delegates that he hopes the physicians of California remember and are inspired by how far the profession has come as we face the new challenges of the future. “When you look at what we’re able to do today, we live in the golden age of medicine – a time when the future of medical treatments is bright and getting brighter every day,” he said.

“We have serious problems today. But we have incredible opportunities,” said Dr. Thorp. “Although we are at the pinnacle of discovery in the treatment of disease, this profession is at war. More than ever, we cannot make the mistake of tempting our adversaries with complacency.”

Dr. Thorp is a Paradise internist who developed an interest in health policy and health system reform while serving as president of Butte Glenn Medical Society (his local county medical society) in 1994, the year of Clinton health reform. In 1994 he was also the incorporating agent of a county wide Management Service Organization involving PPO and HMO physician groups and the area hospitals.

Dr. Thorp continued a leadership role in organized medicine in 1995, serving on CMA’s Committee on Managed Care and subsequently on the Committee on Medical Services. He was the chair of the Committee on Medical Services for 10 years and since 2008 has served as consultant to the committee. Dr. Thorp was elected to the CMA Board of Trustees in 2009 and is an Alternate Delegate to the American Medical Association House of Delegates, representing a portion of Northern California.

In 2011 and 2012, Dr. Thorp was the chair of CALPAC, CMA’s political action committee. He has spent the last year serving as president-elect of CMA and as a member of CMA’s Executive Committee.

Dr. Thorp is the president/CEO of Paradise Medical Group, Inc., a physician owned multi-specialty primary care group incorporated in 2001. He is also on the active medical staff of Feather River Hospital and divides his time between a private general internal medicine practice,

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 37

service as a medical director of a rural health clinic and private practice administration.

Dr. Thorp studied for his medical degree at Loma Linda University School of Medicine and did his residency there as well. In 2009, Dr. Thorp was recognized as a fellow by the American College of Physicians (ACP).

He also serves on the Governor’s Council for the ACP’s Northern California Chapter and he has served at the national level of ACP as a committee member.

He and his wife Vicki enjoy cooking together, gardening, scuba diving and their blended family of four sons: Zach Thorp, his wife, Andy, and their two grandsons, Tyler and Cody; Aaron Thorp and his partner, Michael; Cheyne Rogers; and Griffin Rogers.

The delegates also named Humboldt County surgeon Luther Cobb, M.D., as president-elect. Dr. Cobb will serve as president-elect for one year, and will be installed as president following next year’s House of Delegates.

Dr. Thorp’s complete address to the delegates can be

watched on CMA’s YouTube channel, www.youtube.com/ cmaphysicians.

Also serving on CMA’s 2013-2014 Executive Committee are: • Immediate Past President Paul R. Phinney, M.D., a Sacramento pediatrician • President-Elect Luther F. Cobb, M.D., a surgeon in Humboldt County • Speaker of the House Theodore M. Mazer, M.D., a San Diego ear, nose and throat specialist • Vice Speaker of the House Lee T. Snook, Jr., M.D., a Sacramento pain medicine specialist • Chair of the Board of Trustees, Steven E. Larson, M.D., an internist infectious diseases consultant in Riverside County • Vice Chair of the Board of Trustees, David H. Aizuss, M.D., a Los Angeles ophthalmologist

Delegates push for increased reporting of immunizations The CMA House of Delegates passed a resolution directing the association to encourage and promote the reporting of immunizations to the California Department of Public Health for purposes of vaccination, disease control and prevention (Res. 104-13).

“More accurate tracking of immunizations would lead to improved vaccination rates, reduce duplicative health services and improve the health of all Californians,” wrote one delegate in online testimony.

Nearly one in four children see more than one 38 | THE BULLETIN | NOVEMBER/DECEMBER 2013

immunization provider by age two. In fact, the chart in the child’s most recent medical home is accurate only 62 percent of the time.

With increased reporting, public health departments can better identify people who are at risk in the event of a disease outbreak or other emergency such as hurricanes, earthquakes, floods or man-made disasters. They can also help locate communities with low coverage rates so that they can provide targeted interventions to increase coverage rates and protect more people from disease.

CMA supports graphic image labeling on cigarettes The CMA House of Delegates overwhelmingly voted to support graphic image warning labels on tobacco packaging that depict the very real health impact of smoking (Res. 115-13).

The U.S. Centers for Disease Control and Prevention rolled out a series of graphic advertisements in 2012, which featured startling photos of the health consequences of smoking. National smoking cessation hotlines and websites saw a doubling of calls and a fivefold increase in web visits while the ads were running.

The United States Food and Drug Administration has also proposed placing such images on cigarette packaging as a deterrent to smoking and a stimulus to cessation, but was stopped by legal challenges from the tobacco industry.

The resolution also directs CMA to urge courts to also support such labeling.

“Family physicians support the required use of graphic warnings and statements on cigarette packages and advertisements as an important step toward reducing the existing and future use of tobacco products,” wrote one delegate in online testimony. “Warnings help counter the $12.5 billion cigarette manufacturers spend marketing their products each year. More than two dozen countries already require similar packaging for cigarettes.”

CMA has been a tireless advocate for stronger restrictions on the tobacco industry for decades. In 1970, 1978 and 1980, CMA supported ballot initiatives that would have banned smoking in many public places. In 1987, CMA took on its biggest tobacco-related challenge and won, with the passage of Proposition 99, which established a 25-cents-per-pack tax on cigarettes and a tax hike for other tobacco-related products.

CMA supports reduced blood alcohol limit for drivers The CMA House of Delegates voted to endorse the National Transportation Safety Board’s 2013 recommendation that the legal blood alcohol limit for operating a motor vehicle be decreased from .08 percent to .05 percent or lower (Res. 118-13).

According to the National Transportation Safety Board (NTSB), each year in the United States, nearly 10,000 people are killed in crashes involving alcohol-impaired drivers and more than 173,000 are injured, with 27,000 suffering incapacitating injuries. Since the mid-1990s, even as total highway fatalities have fallen, the proportion of deaths from accidents involving an alcohol-impaired driver has remained constant at around 30 percent.

Research shows that although impairment begins with the first drink, by .05 percent blood alcohol content most drivers experience a decline in both cognitive and visual functions, which significantly increases the risk of a serious crash. Currently, over 100 countries on six continents have limits set at 0.05 percent or lower. The NTSB has asked all 50 states to do the same.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 39

House of Delegates 2013

Delegates weigh in on exchange grace period Members of the CMA House of Delegates took a stance on the 90-day grace period provision called for in the Affordable Care Act (ACA), an issue that has been rapidly evolving in response to CMA’s continued advocacy.

The resolution (Res. 402-13) was amended by delegates during floor debate this weekend to reflect recent state and federal actions regarding the grace period provision. The resolution, as adopted by the House, calls for heightened standards for information provided to physicians regarding enrollees in the state’s health benefit exchange, as well as a provision emphasizing CMA’s position that physicians should not be compelled by payors to participate in exchange products.

As initially proposed, the ACA’s grace period posed considerable risk to physicians participating in exchange products, potentially

40 | THE BULLETIN | NOVEMBER/DECEMBER 2013

exposing them to two months of suspended and/ or denied claims if a patient is delinquent on their insurance premiums. Recently, however, California’s Department of Managed Health Care has asserted that patients falling under the grace period provision would have coverage suspended after the first 30 days, and that insurance companies could not represent this coverage as active to the participating physician.

The patient would then have the second and third months to pay the premium balance and have coverage reinstated.

Given that the grace period provision has been a concern to physicians across the country and California is the only state thus far to move forward on the suspension of coverage issue, the matter was also referred to the American Medical Association for national action.

Humboldt county surgeon named CMA president-elect The CMA House of Delegates named Luther Cobb, M.D., as the association’s new president-elect.

Currently serving as the speaker of the CMA House, Dr. Cobb is a board-certified, self-employed physician practicing in general, thoracic and vascular surgery in Arcata and Eureka.

In addition to his involvement in organized medicine, Dr. Cobb serves as chief of staff of the Mad River Community Hospital in Arcata, where he has been an active member of the medical staff since 1997. He had also previously served as the hospital’s chief of staff from 2000 to 2002 and vice-chief of staff from 2009 to 2011. Dr. Cobb is also on the medical staff of St. Joseph Hospital in Eureka.

Previously, Dr. Cobb served as attending surgeon, director of trauma services and director of the vascular surgery clinic at Santa Clara Valley Medical Center, in San Jose, as well as clinical associate professor of

surgery at Stanford University School of Medicine and the chairman of the surgery department at Mad River Community Hospital.

He also served as president of the Humboldt-Del Norte County Medical Society from 2004 to 2006.

A graduate of the Stanford University School of Medicine, Dr. Cobb is a current member of the school’s alumni association, as well as the American Society of Breast Disease, the Society for Surgery of the Alimentary Tract, the Sigma XI Scientific Research Society and the Pacific Coast Surgical Association.

Dr. Cobb will serve as president-elect for one year, and will be installed as president following next year’s House of Delegates.

Filling Dr. Cobb’s vacated position of speaker of the House is current vice speaker Theodore M. Mazer, M.D. Lee T. Snook, Jr., M.D., was also elected to serve as vice-speaker.

Delegates say insurers should be required to pay for telephone and email consultations Voting with an overwhelming majority, the CMA House of Delegates has said that insurers should be required to reimburse physicians for telephonic and electronic patient management. The resolution (Res. 407-13) asks CMA to sponsor legislation to that effect when politically and economically feasible.

The resolution received nearly universal support during testimony, with many speakers noting that patients are increasingly relying upon telephone calls and emails for consultations that previously were conducted during in-office appointments. Under the language adopted by the House, payment for these consultations would be similar to office visits that are similar in complexity or time required from the treating physicians.

The issue of payment for telephonic or electronic patient management has come before the House in the past, with CMA previously having adopted policy to support the practice, but this latest resolution explicitly asks the association to sponsor legislation to mandate the practice in California.

Delegates support work towards EHR interoperability The CMA House of Delegates displayed a strong show of support for electronic health record (EHR) interoperability (Res. 518-13) and directed the association to support the development of a secure, interoperable, nationwide health information exchange network.

Supporters of the resolution noted that much work needs to be done to achieve meaningful interoperability and facilitate efficient, timely and coordinated patient care among providers in different geographical areas.

The resolution directs CMA to support efforts to harmonize standards and specifications that would enable usability and interoperability of EHR systems and facilitate the exchange of health information among health care providers.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 41

Hoopa physician receives CMA’s annual “country doctor” award

Eva Marie Smith, M.D., M.P.H., a Hoopa family physician, has received the California Medical Association’s (CMA) 2013 Frederick K.M. Plessner Memorial Award during the association’s annual House of Delegates in Anaheim. The award honors a CMA member who best exemplifies the practice and ethics of a rural practitioner.

Dr. Smith provides medical care to the Hoopa Valley Tribe located in a remote section of Humboldt County where poverty, substance abuse and domestic violence are common, and resources to address these problems are slim.

The Hoopa Valley is approximately 50 miles from Eureka on winding roads. On a good day it can take a patient an hour to go to a specialist or a visit the hospital.

Here, where the Klamath and Trinity Rivers meet and where the Hoopa have fished the rivers for salmon since time immemorial, Dr. Smith, a Native American member of the Shinnecock nation, practices medicine at the K’ima:w Medical Center with her husband, Emmett Chase, M.D., a Hoopa tribal native. She is the center’s medical director.

Because the reservation is remote, her practice consists of everything imaginable from managing COPD to heart attacks to gunshot wounds to pediatric care to substance abuse to helping patients manage diabetes.

While there are no specialists on the reservation, she has single-handedly brought University of California, Davis

42 | THE BULLETIN | NOVEMBER/DECEMBER 2013

telemedicine services to the medical center to give her patients access.

In a throwback to another era, Dr. Smith makes frequent house calls, sometimes driving more than 60 miles a day seeing patients. “Working in Indian health means dealing with social services as well as medical services,” she says. “When you are in the home, you get the whole context” for a medical problem.

You may be treating an older woman for diabetes, she said, who is not following your instructions. But, if you make a house call you realize there is a whole lot more going on. She may be a grandmother that is taking care of a lot of grandkids. “I may be frustrated that her blood sugar is out of whack,” she says. “But taking care of herself may not be her first priority.” House calls allow Dr. Smith to understand her patients.

Not only does she take care of individual patients, but she also takes care of the Hoopa nation when a public health emergency emerges. Take for example the hazards of living in a forest valley. In 1999, the community spent one summer indoors trying to avoid a blanket of smoke from a forest fire that raged in the valley for three months.

Because the tribal lands are considered an autonomous government, the need arose during this emergency for a public health officer to liaise with the county public health officer, the tribe and the state. Dr. Smith took on this role.

She got the tribe’s air quality monitors going, took accurate

particulate matter readings, looked at wind readings and the course of the fire, and determined the appropriate response overnight. She liaised with the county health department, and in the case of this fire (there have been many others), she helped the tribe and county declare a state-of-emergency – the first state declaration ever based on a threat to human life.

In addition to medical care, Dr. Smith also treats her patients for substance abuse. She is certified in addiction medicine through the American Society of Addiction Medicine. Substance abuse, she says, is a regional problem, not just a problem on the reservation. Methamphetamine and opioids are the drugs of choice. She finds treating substance abuse particularly satisfying because it allows her to bring in spirituality to the treatment, she says.

Her work is varied and always exciting, she says.

“Medicine is a good life, if you like people,” she says smiling. “I love people.” She says she has spent the bulk of her life in small communities just like Hoopa.

Dr. Smith is a graduate of the Georgetown University School of Medicine in Washington, D.C. She did her residency in family practice at Brookhaven Memorial Hospital Medical Center, Patchogue, NY, and her preventative medicine residency at the University of California, Los Angeles. She is a diplomate of the American Board of Family Physicians.

The award video is available on CMA’s YouTube channel, www.youtube.com/cmaphysicians.

House asks for elimination of hospital “observation” status The CMA House of Delegates has voted to take action on the Centers for Medicare and Medicaid Services’ (CMS) “outpatient patient observation” status, finding it to be a practice that places undue financial burden on patients, complicates the practice of medicine and often results in physicians receiving reduced payments for services provided.

Resolution 211-13, which received strong support on the floor of the House, was submitted as an emergency resolution and

asked that CMA request that CMS eliminate its “outpatient patient observation” status, which is placed upon patients whose anticipated hospital stay is 48 hours or less.

Supporters of the resolution noted that this practice places undue financial burden on patients, while also creating administrative hurdles if the patient is subsequently admitted as an inpatient to the hospital.

The resolution directs CMA staff to work with CMS to address the issue.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 43

2013

CMA House of Delegates in Pictures

44 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Thank You District VII Delegates!

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 45

MEDICAL TIMES FROM THE PAST

Benjamin Cory and Other Pioneer Physicians – Part 3

By Gerald Trobough, MD SCCMA Leon P. Fox Medical History Committee

Dr. Alexander Josephus Spencer (1806-1882)

Dr. A.J. Spencer was Dr. Cory’s second partner. Spencer graduated at the top of his medical school class at Jefferson Medical College in Philadelphia. After several years of medical practice in the eastern part of the United States, he made his way to California during the Gold Rush of 1849. Due to an illness he contracted at the mines, he moved back to Illinois, but found it hard to forget about California. In 1852, he moved his family back to California and settled in San Jose. His wife was Miss Wright, whose father was the governor of New York and the cousin of John Quincy Adams.

Spencer was the first surgeon of note to practice in Santa Clara County. He brought with him his surgical instruments that had been used by a British surgeon in the War of 1812. He was delighted with his San Jose practice. At that time, San Jose was a violent community with a multitude of shootings and accidents. While practicing in Illinois, he was used to getting paid 50 cents for an office visit. In San Jose, he could charge $5, $10, or even $50 per visit. If surgery was required, he often set his fee at $1,000.

When Dr. Spencer became Dr. Cory’s partner, they made the decision to buy a house together. They bought an old frame house and moved it to Second Street. Once settled, they partitioned the house into separate units. The Cory family lived in the south end and the Spencer family lived in the north end of the house. The families lived there for several years before realizing that their home had been used as the “Pest House” during the cholera epidemic of 1850.

While living in the duplex, the families had a problem with their horses being stolen. Dr. Cory had three horses stolen in one week. Dr. Spencer padlocked his horse to a redwood pole that was sunk into the ground. They devised an alarm system that would ring a bell in Frank Spencer’s (oldest son) bedroom if the stable door was opened. If the bell rang, Frank would go outside with a shotgun. This put an end to the horse stealing.

One of the most famous and often repeated story of Dr. Spencer was when he saved Mountain Charley’s life. (See full story in previous issue of The Bulletin.) Charley had been mauled by a grizzly in 1854 and had a large portion of his scalp removed along with a skull fracture. A poorly done surgery had been performed by Dr. Thomas Ingersoll. Charley suffered severe headaches for a year before Dr. Spencer re-operated and put a silver plate in the scalp defect to cover the brain tissue. Spencer created the plate by pounding out a Spanish silver dollar. Charley lived that way for another 48 years.

46 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Another success story about Dr. Spencer concerned a Spaniard who had been shot in the leg and was dying. The accident occurred in the Panoche Mines, 100 miles south of San Jose. Dr. Spencer was summoned and relays of horses met the doctor in Gilroy and San Juan Bautista. He rode as swiftly as the horses would carry him. When he arrived, the man was still breathing, having been kept alive by a priest who sat at his bedside pressing the femoral artery for 15 hours. When Dr. Spencer arrived, the priest fainted from exhaustion. The Spaniard survived the surgery.

Dr. Spencer was staunchly opposed to the vigilantism and capital punishment of the era. He often wrote articles condemning the vigilantes.

This raised the ire of the group and the vigilantes made plans to hang the good doctor. One night as he was traveling to Gilroy, the group planned to ambush him at the Twenty Mile House. Fortunately, his horse wandered off the trail while Spencer was dozing in the saddle and by-passed the hotel, saving his life.

The Cory-Spencer partnership would last four years, ending in 1856.

Dr. Spencer practiced in San Jose for 30 years before moving to Florida.

He died in 1882 at the age of 76.

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Go to: www.tpohr.com for Complete Conference Information NOVEMBER/DECEMBER 2013 | THE BULLETIN | 47

membership

Welcome 156 SCCMA Members Santa Clara County Medical Association

Name City Specialty Mohammed Ahmed San Jose US Vasiliki Aivaliotis Menlo Park IM Mark Albers Campbell IM Sarah Bahm Palo Alto PD Scott Baldwin San Jose SO Elizabeth Basham Los Gatos OBG Vafa Bayat Palo Alto NP Laura Bernet Palo Alto D Ashley Black Palo Alto CTS Brice Blatz Reno FP Steven Block Los Gatos AN Carmel Bogle Mtn View PD Samantha Brenner Palo Alto US Kristen Buono Sunnyvale US Orlando Camacho Mtn View NEP Regan Carey Los Altos P Paola Alejandra Castillero Palo Alto PD Hsien-Hwa Cha Sunnyvale IM Whitney Chadwick Palo Alto PD Andrew Chang San Mateo IM Jia Chang Cupertino EM Johanna Chang Daly City R Kevin Chang Mtn View AN Chwen-Yuen Chen Redwood City IM Sophia Chen Saratoga IM Ian Chong Millbrae EM Clement Chow Campbell OPH Kimberly Chun Saratoga IM Christopher Clave Palo Alto AN Jed Cohn Palo Alto AN Bethany Conly Sunnyvale OBG Erin Crawford San Jose AN Mara Cvejte Redwood City SM Amsalu Dabela-Biketi Santa Clara R Jessica DellaValle Palo Alto GS Christopher DeNucci San Mateo R Sean DeSilva Menlo Park GS Samantha Do Palo Alto OBG Lauren Eichenbaum Palo Alto PM Tashfeen Ekram Palo Alto R Simon Ermakou Menlo Park IM Molly Estes Mtn View EM Mark Ewalt San Francisco PTH Enrica Fung San Jose NEP Kirsten Gaarder Palo Alto R Forough Ghavami Palo Alto N Sandeep Gidvani Campbell OSS Stephanie Go Palo Alto R Danielle Goodrich Mtn View EM Jennifer Gurney Santa Barbara SCC Kelly Haas Palo Alto PD Glorijee Harper Palo Alto AN Anahid Hekmat Palo Alto SM

Name City Specialty Katherine Hill Redwood City PD Raymond Hsieh San Jose APM Kenneth Ike Mtn View AN Arti Jain Los Gatos PD Daniel Kaiser Palo Alto US Elizabeth Kaufman Palo Alto EM Makoto Kawai Palo Alto SM Moira Kessler Mtn View CHP Jeremy Kim Palo Alto GS Michael King Menlo Park AN John Kleimeyer Palo Alto ORS Victoria Klyce Menlo Park EM Kathleen Kolstad Redwood City US Katherine Leaver Palo Alto US Jena Lee Palo Alto P Thomas Lew Palo Alto IM Chunrong Lin Palo Alto PCC James Lin Santa Clara IM Erqi Liu Palo Alto RO Justin Lo San Jose APM Justin Lotfi Palo Alto IM Anna Lucero San Francisco IM Wenyan Man San Bruno US Mala Mandyam Palo Alto IM Kristine Mangalindan Milpitas IM Clement Marshall Menlo Park GS Rustin Massoudi Mtn View US Melissa Mausolf Mtn View IM Nichole McCalvin Redwood City PD Jing Moy Los Gatos FP Emilie Muelly Mtn View R Beg Muna Emeryville IM Arian Nikpour Saratoga GS Kelly O'Hear Palo Alto IM Elisabeth Obenauf Santa Clara OBG Chrystal Obi Palo Alto R Maria Ortega Santa Clara EM Trey Oxford San Francisco IM Akhila Pamula Palo Alto EM Jennifer Pan Mtn View GE Dhanu Panchal Morgan Hill US Josee Paradis Palo Alto OTO Jovana Pavisic Palo Alto PD Laura Phan Mtn View OPH Michael Polignano San Carlos P Carmin Powell Palo Alto PD Sunita Puri Palo Alto IM Zoe Quandt San Francisco IM Aarti Rao Menlo Park US Babak Razavi Palo Alto N Kirsten Regalia Palo Alto GE Jason Reminick Santa Clara PAN Carrie Riestenberg Santa Clara OBG

* - Board Certified | US - Unspecified 48 | THE BULLETIN | NOVEMBER/DECEMBER 2013

Santa Clara County Medical Association, continued Name City Specialty Tracy Robinson Los Gatos AN Kristen Rumer Palo Alto GS Ameen Salahudeen Palo Alto IM Mark Samols Palo Alto PTH David Schoppy Stanford OTO Jonathan Schwartz Redwood City CD Clair Secomb Palo Alto AN Joshua Segal Palo Alto PTH Shebani Sethi Palo Alto P Brian Shaller Palo Alto IM Clifford Sheckter Palo Alto PS Kayla Shipley San Jose EM Susan Sifers Palo Alto N Sonia Singh Los Altos IM Andrea Smeraglio Redwood City IM Ajay Srivastava San Jose NC Sanaa Suharwardy Palo Alto OBG Loretta Sullivan-Chang Palo Alto HO Aida Sun Santa Clara IM Mark Sun Palo Alto R Andrew Sweatt San Carlos IM Hung-Enn Tan San Jose IM Rodney Terrell Palo Alto OFA Tyson Torros Palo Alto P Brian Toy Fremont OPH

Name City Specialty Michael Tracy Palo Alto PDP Thuy Tran Palo Alto GS Alex Trzebucki Mtn View IM Sandie Tun Palo Alto IM Michael Turken San Francisco IM Mirela Tuzovic Palo Alto IM Rodrigo Valderrabano Palo Alto IM Jason Valerio Menlo Park SM David Van Valen Sunnyvale IM Neal Varghis Palo Alto PM Nina Vasan Cupertino P Jessica Vaughn Palo Alto IM David Wang Palo Alto EM Matthew Wetschler Menlo Park EM Lindsay Wheeler Palo Alto OBG Eugene Wilson Palo Alto RNR Robert Wirka Palo Alto CD Kitsada Wudhikarn Palo Alto TTS Catherine Xia Campbell AN Yingding Xu Palo Alto IM Liang Xue Santa Clara IM Rachel Yang San Mateo GS Lindsay Yeh Foster City IM Ming Zhi Mtn View RO Liangxue Zhu San Jose FP

Welcome 51 New MCMS Members Monterey County Medical Society

Name City Specialty Brian Aguilera Salinas OBG Nadine Aldahhan Salinas FP Jennifer Bautista Salinas IM Adam Bolour Salinas FP Brunel Bredy King City FP Russell Brunet Salinas FP Rolando Cantos Salinas PD Peter Chandler Salinas OBG Patrick Chen Salinas IM Chelsea Chung Salinas FP Adam Cotton Salinas FP Richard Cuadros Salinas OBG Alex Di Stante Salinas GS Guillermina Erni Salinas PD Chirag Gandhi Salinas FP Jaime Gonzalez Salinas FP Sergio Gonzalez Salinas FP Gary Gray Salinas FP Charles Harris Salinas FP Steven Harrison Salinas FP Richard Heiner Salinas OBG Amir Helali Castroville FP Judy Honegger Salinas OBG Robert Hostetter King City FP Sir Cedric Ibanez Salinas ID Amanda Jackson Soledad PEM

Name City Specialty Imad Kafilmout Salinas OBG Robert Kurtz Salinas P Melissa Larsen Salinas OBG Lawrence Lenz Los Banos OBG Michelle Liamidi Salinas OBG Caleb Liem Salinas OBG Warren Nishimoto Salinas GP Oguchi Nkwocha Castroville FP Joanna Oppenheim Salinas FP Barron Mark Palmer Salinas ORS Bob Peng Salinas OBG Minerva Perez-Lopez Salinas FP Rebecca Raymond Salinas FP Robert Revers Salinas END Carla Rosal Salinas FP Suzanne Rosen Salinas FP Vivek Rudrapatna Monterey IM Omeed Sani Salinas IM Michael Sepulveda Salinas IM Tara Tenney Salinas FP Marc Tunzi Salinas FP Trinh Vu Carmel UC Sharon Wesley Monterey FP Victoria Williams Santa Cruz FP Jon Yoshiyama Salinas FP

* - Board Certified | US - Unspecified NOVEMBER/DECEMBER 2013 | THE BULLETIN | 49

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MEDICAL SUITES • GILROY

First class medical suites available next to Saint Louise Hospital in Gilroy, CA. Sizes available from 1,000 to 2,500+ sq. ft. Time-share also available. Call Betty at 408/848-2525.

DOWNTOWN MONTEREY OFFICE FOR SUBLEASE

Spacious, recently remodeled, excellent parking, flexible terms. Call Molly at 831/644-9800.

PRIME MEDICAL OFFICE FOR LEASE • SAN JOSE

Excellent location. Westgate area. 1,584 sq. ft.

West Valley Professional Center, 5150 Graves Ave. Suite 2/stand-alone unit. Private office, reception area, exam rooms with sinks. Available 2/1/11. Call owner at 408/867-1815 or 408/2217821.

OFFICE FOR RENT • SAN JOSE

2395 Montpelier Dr #5, San Jose 95116. Rent $2,000 per month. Lease required. Owner pays

WRITE A BOOK? • • • •

Consultant, Editor, Ghostwriter Award-Winning Author 15 Years, Many References Literary Agent

Marcia Rosen MarciagRosen@gmail.com www.creativebookconcepts.com www.Mrosenconsulting.com 831/884-5490

triple net and monthly H/O dues. Two doctors set up. Three examination rooms. Approximately 1,100 sq. ft., furnished or unfurnished, adequate parking, walk to Regional Med Ctr. Close to X-Ray and lab. Previous tenant doctor retired. Call Marie at 408/268-2040.

MEDICAL OFFICE SPACE TO SHARE • SUNNYVALE

Convenient location. One large private office plus one exam room, shared waiting room and front office. Newly built, total 1,280 sq. ft. Available now. Please call 408/438-1593.

MEDICAL OFFICE SPACE FOR LEASE

Lease: Approximately 1,900 sq. ft. Free standing building zoned medical. Turn key. Marble entry. Street front. Six treatment rooms. Prestigious physician’s office with balcony. Highway 85 at DeAnza Blvd. Call 408/996-8717.

MEDICAL OFFICE SPACE FOR LEASE/ SALE • SAN JOSE

Luxury modern 1,300 sq. ft. turn-key office with minor surgery OR. Prime Good Samaritan/Bascom Avenue at Highway 85 location in multispecialty building. Interior amenities and terms negotiable. Email am.1960@yahoo.com.

PERFECT SATELLITE OFFICE • MTN VIEW

Beautiful medical office across from Palo Alto Medical Foundation. Professional office with vaulted ceilings, new interior, digital x-ray, natural light, and Wi-Fi. Trained receptionist to schedule patients, make reminder calls, collect paperwork and insurance info. Rent exam room one to five days per week, excellent office – low overhead. Call 650/814-8506.

MEDICAL/DENTAL/PROFESSIONAL OFFICE SUITE • SALINAS

Second story of professional building across from SVMH. Private balcony. Freshly painted and carpeted, ready for occupancy. 1,235 sq. ft. at $1.25/sq. ft. Rent is $1,544/month. Contact Steven Gordon at 831/757-5246.

EMPLOYMENT OPPORTUNITY OCCUPATIONAL MEDICINE PHYSICIANS • PRIMARY CARE, ORTHOPEDICS, & PHYSIATRY

Our occupational medical facilities offer a chal-

50 | THE BULLETIN | NOVEMBER/DECEMBER 2013

METRO MEDICAL BILLING, INC. • • • • • •

Full Service Billing 25 years in business Book Keeping ClinixMIS web based software Training and Consulting Client References

Contact Lynn (408) 448-9210 lynn@metromedicalbilling.com Visit our Website www.metromedicalbilling.com lenging environment with minimal stress, without weekend, evening, or “on call” coverage.

We are currently looking for several knowledgeable and progressive primary care and specialty physicians (orthopedist and physiatrist) interested in joining our team of professionals in providing high quality occupational medical services to Silicon Valley firms and their injured employees. We can provide either an employment relationship including full benefits or an independent contractor relationship. Please contact Rick Flovin, CEO at 408/228-0454 or email riflovin@allianceoccmed.com for additional information.

INTERNAL MEDICINE PHYSICIAN NEEDED

We are looking for an internal medicine physician for our multi-specialty group. Please email your CV to kaajhealthcare@gmail.com.

FOR SALE MEDICAL OFFICE SPACE FOR LEASE/ SALE • SAN JOSE

Luxury modern 1,300 sq. ft. turn-key office with minor surgery OR. Prime Good Samaritan/Bascom Avenue at Highway 85 location in multispecialty building. Interior amenities and terms negotiable. Email am.1960@yahoo.com.

WANTED CRYOSURGICAL UNIT

GYN office needs working cryosurgical unit.

Call Linda at 408/370-1311.

Medical Space Available

State of the Art Medical space available to sublet on Bascom & White Oaks. Up to 3 Exam Rooms with shared common areas. Ideal for primary care or specialist.

For more information, please contact Davina at 408-369-4210

Legacy Wealth Advisors

3803 S Bascom Ave Suite 200, Campbell, CA 95008

Managing the reserve investment accounts of the Santa Clara County Medical Association (SCCMA) and the Bureau of Medical Economics (BME) since 2000 1900 The Alameda Suite 510 San Jose, CA 95126 P: (408) 452-7700 F: (408) 452-7470 Email: Info@lwallc.com

Wealth Management

Legacy offers a broad range of wealth management services to SCCMA and MCMS physician members and their families. Such services include: • Financial Planning, Risk Management, Educational & Retirement Planning Projections • Liquidity Management and Cash Flow Analyses • Estate Tax and Charitable Planning • Existing Portfolio Analysis • Design and Implementation of Investment Strategies

Member Savings!

Legacy offers a one-hour complimentary financial planning check-up to Association members (this is a $500 savings). For more information, please call Lawrence Pizzella at (408) 452-7700 or email lawrence@lwallc.com

www.lwallc.com

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 51

THIS IS NOT A TEST Trial Lawyers have begun an all- out assault

on MICRA, California’s landmark tort reform law.

Join the Fight Today! Every dollar contributed to CALPAC goes directly to protecting MICRA, ensuring that your doors stay open.

Visit www.cmanet.org/micra or call 916.444.5532 for more information.

52 | THE BULLETIN | NOVEMBER/DECEMBER 2013

member benefits

Now Is the Time for a New Dental Plan!

It’s Open Enrollment time for the Association/Society-sponsored Group Dental program. This plan is designed to help you, your family, and your employees minimize the out-of-pocket expense of regular dental care.

This program helps you maximize your out-of-pocket savings by using network dentists, but also allows you to use any dentist you like and receive lower benefits. Following are many valuable benefits that can save you money: • Annual Benefits of $2,000 per person for dental care, using network providers ($1,500 if you use non-network providers).

• D uring Open Enrollment only, members may join as an individual or as a group with your employees.

• Low calendar year deductible of $50 per person ($100 per calendar year maximum for families).

• Pay no deductible on oral exams, x-rays, and routine cleanings.

Open Enrollment period ending on January 1, 2014.

Call a Client Advisor at 800/842-3761 for more information. Or visit www.CountyCMAMemberInsurance.com to download a brochure and application.

Remember, the Open Enrollment period is available once per year. To be eligible for coverage, applications must be received during the special

SCCMA & MCMS PHYSICIANS RECEIVE

50% OFF ADVERTISING RATES

Increase Your Referrals!

The Bulletin. This official magazine of the Santa Clara County Medical Association and Monterey County Medical Society is published bi-monthly and distributed to over 3,700 physicians.

The deadline to participate is NOW! Space is limited.

Contact Pam Jensen today: 408-998-8850 or pjensen@sccma.org NOVEMBER/DECEMBER 2013 | THE BULLETIN | 53

Help Create an AIDS-Free Generation Include routine HIV testing for all patients, regardless of their risk status, starting at age 13.

HIV screening is recommended for all patients in all healthcare settings. Persons at high risk for HIV infection should be tested at least annually.

For information or to view a video on how to incorporate routine testing into your practice, please scan the QR code or visit http://bitly.com/ bundles/prxinc/2.

54 | THE BULLETIN | NOVEMBER/DECEMBER 2013

We Celebrate Excellence – Corey S. Maas, MD, FACS CAP member and founder of “Books for Botox®” community outreach program, benefitting the libraries of underfunded public schools

800-252-7706 www.CAPphysicians.com

San Diego orange LoS angeLeS PaLo aLTo SacramenTo

For over 30 years, the Cooperative of American Physicians, Inc. (CAP) has provided California’s finest physicians, like San Francisco facial plastic surgeon Corey Maas, MD, with superior medical professional liability protection through its Mutual Protection Trust (MPT).

Physician owned and physician governed, CAP rewards excellence with remarkably low rates on medical professional liability coverage – up to 40 percent less than our competitors.

CAP members also enjoy a number of other valuable benefits, including comprehensive risk management programs, best-in-class legal defense, and a 24-hour CAP Cares physician hotline. And MPT is the nation’s only physician-owned medical professional liability provider rated A+ (Superior) by A.M. Best.

We invite you to join the more than 11,000 preferred California physicians already enjoying the benefits of CAP membership.

Superior Physicians. Superior Protection.

NOVEMBER/DECEMBER 2013 | THE BULLETIN | 55

BULLETIN THE

Address service requested

Official magazine of the Santa Clara County Medical Association and the Monterey County Medical Society

700 Empey Way, San Jose, CA 95128-4705

PRSRT STD U.S. Postage PAID San Jose, CA Permit No. 503

PROUD TO BE ENDORSED BY THE MONTEREY COUNTY MEDICAL SOCIETY AND SANTA CLARA COUNTY MEDICAL ASSOCIATION

NORCAL Mutual is owned and directed by its physicianpolicyholders, therefore we promise to treat your individual needs as our own. You can expect caring and personal service, as you are our first priority. Contact your broker or call 877-453-4486 today. Visit norcalmutual.com/start for a premium estimate.

A N O R C A L G R O U P C O M PA N Y