ACCMA Bulletin Nov/Dec 2022

BULLETIN ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION

Serving East Bay physicians since 1860

Edmon Soliman, MD, Installed as ACCMA President

Highlights from this issue: • • • • • • • •

ACCMA to Congress: Stop Medicare Cuts

What’s New with HIPAA Legislative Highlights

ACCMA Annual Meeting in Photos

Get Involved: Leadership Opportunities

Physician Burnout Report Med Mal Risks with Independent Contractors Ending Homelessness

November/December 2022

Celebrating Independent Physicians

More than 12,500 California physicians rely on CAP to protect their practices every day.

At the Cooperative of American Physicians (CAP), we celebrate you—the independent and solo practitioner who keeps healthcare personal. We are here to support you with exceptional medical malpractice coverage supplemented by a host of outstanding risk management and practice management services, so you can stay focused on what’s important—patient care.

For over 40 years, CAP has delivered financially secure medical malpractice coverage options and practice solutions to help California physicians realize professional and personal success.

Find out what makes CAP different.

Scan the QR code to see how much you can save on your medical malpractice coverage

CAPphysicians.com 800-356-5672 MD@CAPphysicians.com

Medical professional liability coverage is provided to CAP members through the Mutual Protection Trust (MPT), an unincorporated interindemnity arrangement organized under Section 1280.7 of the California Insurance Code.

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ACCMA EXECUTIVE COMMITTEE Edmon Soliman, MD, President Albert Brooks, MD, President Elect Irene Lo, MD, Secretary-Treasurer Robert Edelman, Immediate Past President COUNCILORS Lisa Asta, MD Eric Cain, MD Eric Chen, MD Rollington Ferguson, MD Harshkumar Gohil, MD James Hanson, MD Terry Hill, MD Shakir Hyder, MD Alexander Kao, MD Irina Kolomey, MD Steve Lee, MD Terence Lin, MD Kristin Lum, MD Nimisha Mishra-Shukla, MD Aileen Murphy, DO Kiran Narsinh, MD Ross Pirkle, MD Stephen Post, MD Jeffrey Poage, MD Thomas Powers, MD Richard Rabens, MD Steven Rosenthal, MD Suresh Sachdeva, MD Jonathan Savell, MD Sonia Sutherland, MD Clifford Wong, MD Sijie Zheng, MD CMA & AMA REPRESENTATIVES Patricia L. Austin, MD, AMA Delegate Mark Kogan, MD, CMA Trustee, AMA Alternate-Delegate Suparna Dutta, MD, CMA Trustee Katrina Peters, MD, CMA Trustee

BULLETIN ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION

Serving East Bay physicians since 1860

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News & Comments

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PRESIDENT’S PAGE Serving with Humility and Reverence

By Edmon Soliman, MD, ACCMA President

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ACCMA 154th Annual Meeting in Photos

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Physician Burnout Rate Spikes to New Height By the American Medical Association

November/December 2022 | Vol. LXXVIII, No. 6

YOUR ADVOCACY 11 ACCMA Leadership Opportunities

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2023 ACCMA Council Pictorial

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Tackling Major Issues at the 2022 House of Delegates

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Legislative Session Ends: Major Policy Wins

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IN YOUR PRACTICE 14

What’s New with HIPAA

By David Ginsberg, PrivaPlan Associates

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Your Med Mal Risk with Independent Contractors

By Margaret Martin and Lee McMullin, Cooperative of American Physicians

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New Members

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Council Reports

Ending Homelessness in Alameda County

By Scott Coffin, Alameda Alliance for Health

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In Memoriam

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ACCMA STAFF Joseph Greaves, Executive Director Griffin Rogers, Director, Napa Solano Medical Society David Lopez, Director of Advocacy and Governance Meghan Arthurs, Director of Community Health Jennifer Mullins, Assoc. Director of Education & Events Alejandra Hinojosa, Marketing & Communications Manager Christine Maki, Administrative Assistant

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ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION 6230 Claremont Avenue, Oakland, CA 94618 Tel: 510/654-5383 Fax: 510/654-8959 www.accma.org

REDUCE – REUSE – RECYCLE Printed in the U.S.A. with soy inks on paper stock certified by the Forest Stewardship Council.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

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NEWS & COMMENTS

RETENTION BONUSES: APPLY NOW

In an effort to stabilize and retain California’s health care workforce and recognize the sacrifices health care workers (HCW) have made over the course of the pandemic, Governor Newsom signed into legislation a bill which authorizes HCW retention bonuses. Physicians who provide patient care in hospitals or work as a member of the patient care team during the qualifying work period (July 30-October 28, 2022) will be eligible for a $1,000 bonus. The application submission period is open from November 29 to December 30. Independent/solo physicians will need to register with DHCS.

PHYSICIAN PAYMENT SCHEDULE

On November 1, the Centers for Medicare & Medicaid Services (CMS) released the calendar year (CY) 2023 Medicare Physician Payment Schedule (MPS) and Quality Payment Program (QPP) final rule. Visit bit.ly/3UIcT1X for a summary from the American Medical Association and visit bit.ly/3V6loUl for a specialty impact table that includes the 3% cut which without Congressional action is scheduled to start January 1.

NEW COMMERCIAL MANAGED CARE PLAN CONTRACTS

DHCS announced the results of its first ever competitive MediCal managed care procurement, which according to DHCS will redefine how care is delivered and which commercial payors will participate in California’s Medi-Cal managed care program beginning in 2024. All Medi-Cal managed care plans (MCP) statewide—including public plans and Kaiser Permanente— will also have to meet the new and enhanced MCP contract requirements when the new contract goes into effect on January 1, 2024. Visit DHCS.ca.gov for more information.

INFLATION REDUCTION ACT SUMMARY

CALIFORNIA DATA EXCHANGE FRAMEWORK

On July 5, CalHHS published the Data Exchange Framework, intended to support health information exchange between all health and human services organizations throughout California.

By law, physician practices and medical groups must comply with the requirements of the framework by January 31, 2024 (2026 for smaller practices). CalHHS is developing a process to collect and manage DSA signatures. By January 31, 2023, the Data Exchange Framework data sharing agreement will be executed by the following entities: General acute care hospitals, physician organizations and medical groups, skilled nursing facilities, health service plans and disability insurers, Medi-Cal managed care plans, clinical laboratories, and acute psychiatric hospitals. Available resources: CMA webinar (visit bit.ly/3tz0bqf) – at minute 13:10 Mr. David Ford gives an overview of the timeline of who will transition into this data framework; fact sheet from CMA (visit bit.ly/3TFW5qP).

PRIOR AUTHORIZATION REFORM BILL MOVES TO SENATE

The U.S. House of Representatives unanimously passed the Improving Seniors’ Timely Access to Care Act (HR 3173) which provides comprehensive reform of the Medicare Advantage prior authorization process by streamlining the health plan bureaucracy to help Medicare patients get the care they need, when they need it. The bill has reached the Senate. ACCMA strongly supports this bill which would reduce administrative burdens and improve access to care.

CALIFORNIA LAUNCHES ABORTION.CA.GOV

As part of Governor Gavin Newsom’s pledge to make California a sanctuary for people seeking abortions, a publicly funded website was launched to promote the state’s abortion services,

The Inflation Reduction Act (IRA) of 2022 was enacted into law in August. What does it mean for physicians? The IRA authorizes Medicare to negotiate drug prices with pharmaceutical manufacturers, is estimated to reduce high-priced drug costs by up to 40%, caps annual drug price increases to the rate of inflation, caps seniors annual out-of-pocket costs at $2,000, extends the Affordable Care Act (ACA) premium tax credits through 2025, and addresses climate change partly through grants to reduce carbon emissions.

PHYSICIAN SUICIDE AWARENESS AND PREVENTION RESOURCES

September 16 is National Physician Suicide Awareness Day (#NPSADay), a reminder and a call to action to make time to talk – and to act – so physicians’ struggles don’t become mental health emergencies. Tragically, physicians have one of the highest suicide rates of any profession, and the past two and a half years of the COVID-19 pandemic have taken a further toll on physicians’ mental health. The ACCMA was saddened to learn recently of another death by suicide in our local medical community. Although help is available, many physicians are not aware. Find more wellness resources on page 19.

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ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

MEMBERSHIP RENEWAL: GET 15% OFF YOUR DUES

The 2023 Dues Statements were recently mailed out to your “preferred” address on file. All members who renew before December 31st receive a 5% discount on membership dues. For those who agree to commit to being a member for the next three years, you can receive 15% off your membership dues each year.

Sponsoring medical groups can also receive discounts of up to 15% on dues.

If you did not receive your invoice, it may mean that you need to verify and/or update your contact information. We want you to receive the information you need in a timely manner. Please email accma@ accma.org or call (510) 654-5383 if you did not receive a dues statement, or if you would like to take advantage of these discount opportunities. Thank you for helping us to better serve you - and thank you for being a member!

NEWS & COMMENTS

listing clinics, linking to financial help for travel and lodging and letting teenagers in other states know they don’t need their parents’ permission to get an abortion in the state.

Abortion.ca.gov also includes a map showing the 166 abortion clinics statewide.

CALIFORNIA PHYSICIANS TO BE ELIGIBLE FOR FEDERAL LOAN FORGIVENESS

The U.S. Department of Education has released the final rule on the national overhaul of the broken Public Service Loan Forgiveness Program (PSLF). Included in the rule is the specific fix sought by the California Medical Association (CMA), so that all eligible California and Texas physicians can participate in the program. The PSLF program was intended to provide loan forgiveness to individuals who commit to community service for 10 years by working full time (30 hours/week) in non-profit organizations, such as non-profit hospitals/clinics.

Unfortunately, the program’s implementing regulations were narrowed to require physicians to be “directly employed.” As a result, physicians in our nation’s two largest states were inadvertently excluded because state laws in California and Texas prohibit hospitals from employing physicians. The final rule now ensures that physicians in all 50 states have equal access to loan forgiveness. Applications will open in July 2023 under the new rules, which are retroactive for the last 10 years of work in public and private non-profit hospitals and clinics.

REPORT SHOWS WORSENING OVERDOSE EPIDEMIC

The AMA issued its 2022 Overdose Epidemic National Report, which showed a worsening epidemic and called for an all-hands approach—physicians, policymakers, public health experts, educators, faith leaders and employers—to help save lives. The report highlighted that while physicians and other health care professionals have decreased opioid prescribing by nearly 50% nationally since 2012, used state prescription drug monitoring programs (PDMP) more than 1.1 billion times in 2021, and have increased prescriptions for medications to treat opioid use disorder and naloxone—more than 107,000 Americans died of a drug-related overdose in 2021, mainly due to illicitly manufactured fentanyl, methamphetamine, and cocaine. Visit end-overdose-epidemic.org for more information.

RULES ON INFORMATION BLOCKING

In April 2021, the Office of the National Coordinator for Health Information Technology’s (ONC) rules on information blocking went into effect. Information blocking is defined as practices that are likely to interfere with, prevent, or materially discourage the access, exchange, or use of electronic health information (EHI). Physicians, hospitals, electronic health record vendors, health information exchanges, and health information networks (also known as “Actors”), are all subject to ONC’s regulations. Since April 2021, information blocking requirements have been focused on a narrow subset all EHI. However, as of October 6, information blocking requirements shift to the entire set of EHI. Physicians will be responsible for the access, exchange, or use of the full EHI requirement.

VACCINATION RATES IN CHILDREN REMAIN LOW

Physicians and other providers of pediatric services are urged to remain vigilant in making a strong recommendation for COVID-19 and influenza vaccination to protect children and those around them. While most cases among children are mild, COVID-19 can be serious—attributed to over 122,000 hospitalizations and 1500 deaths among children in the US. Fall and winter well-child checks, acute care visits and walk-in hours are good opportunities to immunize patients against COVID-19 and influenza, which can help prevent disease spread during this time when we are seeing a surge in RSV and other respiratory infections. Approximately 58% of children 5-17 years of age and only about 10% of children in California younger than 5 years of age have received their first doses of COVID-19 vaccine. Rates of influenza vaccination of children and adolescents also remains extremely low.

MEDICAL STUDENTS: GRANTS UP TO $2,500

The Physicians for a Healthy California (PHC) MedStudentsServe program is accepting applications for its 2023 grant cycle. The MedStudentsServe grant funds medical student organizations to support educational, advocacy, community service, and outreach programs that enhance the health and well-being of California’s communities. Applications are due by January 17. Visit PHCdocs.org/Resources/MedStudentsServe for more information.

BLUE SHIELD’S NEW PAYMENT MODEL FOR SPECIALTY CARE

Blue Shield of California is launching a new value-based, shared savings payment model for specialty care physician practices.

The program aims to transform how specialty care services are delivered by shifting away from traditional fee-for-service to value-based care in an “episode of care” arrangement.

Practices who join the program would have direct financial incentives via shared savings for improved outcomes for specialty services, with no downside financial risk to the practice.

Blue Shield is initially launching the program for orthopedic, maternity and gastroenterology services. To qualify for the program, you must participate in the Blue Shield commercial PPO network.

SAVE THE DATE!

The California Medical Association (CMA) will host its annual Legislative Advocacy Day on Wednesday, April 19, 2023, at the SAFE Convention Center in Sacramento. Attendees will have the opportunity to discuss health care with legislators at the Capitol. This unique event is free of charge to all CMA members.

Plan to join more than 500 physicians, medical students and resident members in educating legislative leaders as champions for patients and the practice of medicine. To RSVP, call 510-654-5383 or email rsvp@ accma.org.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

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HEALTHY CHECKOUT

Characteristics Payment System CharacteristicsofofaaRational RationalMedicare Medicare Payment System Simplicity, relevance, alignment, and predictability, for physician practices Simplicity, relevance, alignment, and predictability, for physician practices and the Centers for Medicare and Medicaid Services (CMS).

and the Centers for Medicare and Medicaid Services (CMS).

Ensuring financial stability and predictability

Ensuring financial stability and predictability

• Provide financial stability through a baseline positive annual update reflecting inflation in practice costs, and • Providereplace financial stability through a baseline positivetoannual update reflecting inflation in practice costs, and eliminate, or revise budget neutrality requirements allow for appropriate changes in spending growth.

eliminate, replace or revise budget neutrality requirements to allow for appropriate changes in spending growth.

• Recognize fiscal responsibility. Payment models should invest in and recognize physicians’ contributions in

• Recognize fiscal care responsibility.

Payment models should in and recognize physicians’ contributions providing high-value and the associated savings and qualityinvest improvements across all parts of Medicare and in the health care system care (e.g.,and preventing hospitalizations). providing high-value the associated savings and quality improvements across all parts of Medicare and the health care system (e.g., preventing hospitalizations).

• Encourage collaboration, competition and patient choice rather than consolidation through innovation, stability, and reduced complexity by eliminating need for physicians choose between retirement, selling • Encourage collaboration, competition andthe patient choice rathertothan consolidation through innovation, their practices or suffering continued burnout. stability, and reduced complexity by eliminating the need for physicians to choose between retirement, selling

their practices or suffering continued burnout.

Promoting value-based care

value-based care to patients, rather than administrative activities–such as data entry–that •Promoting Reward the value of care provided may not be relevant to the service being provided or the patient receiving care.

• Reward the value of care provided to patients, rather than administrative activities–such as data entry–that

• may Encourage so practices and systems can redesigned and continuously refined to provide highnot be innovation, relevant to the service being provided orbe the patient receiving care.

value care and include historically non-covered services that improve care for all or a specific subset of patients • Encourage innovation, so practices and systems can be redesigned and continuously refined to provide high(e.g., Chronic Obstructive Pulmonary Disease, Crohn’s Disease), as well as for higher risk and higher value care and include historically non-covered services that improve care for all or a specific subset of patients cost populations.

Disease, Crohn’s Disease), well as for higher riskofand higher • (e.g., OfferChronic a varietyObstructive of paymentPulmonary models and incentives tailored to the as distinct characteristics different

cost populations.

specialties and practice settings. Participation in new models must be voluntary and continue to be • Offer a variety of paymentpayment modelsmodel and incentives tailored to the distinct of different incentivized.

A fee-for-service must also remain a financially viablecharacteristics option.

specialties and practice settings. Participation in new models must be voluntary and continue to be

• incentivized.

Provide timely, actionable data.

Physicians need timely access to analyses of their claims data, so they can A fee-for-service payment model must also remain a financially viable option. identify and reduce avoidable costs. Though Congress took action to give physicians access to their data, they still do not receive timely, actionabledata. feedback on theirneed resource useaccess and attributed costs Medicare.

• Provide timely, actionable Physicians timely to analyses ofintheir claims data, so they can Physicians should be held accountable for the costs they identify and reduce avoidable costs. only Though Congress tookcontrol actionortodirect. give physicians access to their data, they still not receive feedback on their resource use andquality attributed costs Medicare.

• do Recognize the timely, value ofactionable clinical data registries as a tool for improving of care, withintheir outcome Physicians should befeedback held accountable only for the costs they control or direct. measures and prompt on performance.

• Recognize the value of clinical data registries as a tool for improving quality of care, with their outcome measures and prompt feedback on performance.

Safeguarding access to high-quality care • Advance health equity and reduce disparities. Payment model innovations should be risk-adjusted and Safeguarding access to high-quality care recognize physicians’ contributions to reducing health disparities, addressing social drivers of care, and tackling health inequities. Physicians need support as they care for historically marginalized, higher risk, hard to reach or • Advance health equity and reduce disparities. Payment model innovations should be risk-adjusted and sicker populations.

recognize physicians’ contributions to reducing health disparities, addressing social drivers of care, and tackling

• health Support practicesPhysicians where theyneed are by recognizing that thefor high-value caremarginalized, is provided byhigher both small inequities. support as they care historically risk, practices hard to reach or and large systems, and in both rural and urban settings. sicker populations.

• Support practices where they are by recognizing that the high-value care is provided by both small practices and large systems, and in both rural and urban settings.

© 2022 American Medical Association. All rights reserved. 22-708552:052422

Characteristics of a Rational Medicare Payment System

PRESIDENT'S PAGE

Serving with Humility and Reverence

by Edmon Soliman, MD

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y spouse and I recently had the opportunity to visit with my parents while attending the CMA House of Delegates meeting in Southern California. I had a chance to sit down with my father as he recounted the story of how our family emigrated from Egypt in 1974 – a story I had heard many times and have retold to our children. I was five years old then, and as I matured, I recognized the risk and the sacrifice of leaving the familiarity and safety of a home country to seek better lives, not for oneself, but for your children in a foreign land known for its promise of freedom and opportunity.

I am sure that is a very common story of immigration in this country, but it motivated me over the years and decades. It motivated me to focus on my studies. It carried me through college (Calculus, Physics, and dreaded Organic Chem…). That story, our story, inspired me to medical school and then through the long hours of hazing that we call residency, until I landed with the Permanente Medical Group, where this former 5-year-old kindergartener (who didn’t know a word of English) could now live out his dream of being a doctor. And to join a group like the ACCMA and be able to lead it – even just for a year – will be one of the highlights of that dream.

As I take the helm as your ACCMA President, I am excited to continue working with my fellow ACCMA physicians to define and defend “our lane” as we represent physicians from all specialties and practice types across our two counties.

From promoting vaccinations to railing against tobacco products, from advocating for improved geriatric care and increased access to reproductive health care to raising awareness about the broad health consequences of racism and climate change. Collectively, we are the voices of a respected community of experts guided by our shared oaths, and by evidence-based practices of quality and safety for those who entrust us with their medical care. We influence health care policy, and we support physicians through

advocacy to ensure the viability of physician practices and promote the health of our communities.

In the year ahead, our profession will face many challenges.

Already, in fact, the ACCMA is working together with the CMA, AMA, and countless other medical associations to urge Congress to stop a 4.42% Medicare cut that would cripple physician practices and irreparably harm access to care for Medicare seniors.

Due to a confluence of statutory and budget neutrality payment cuts, lack of inflationary updates, significant administrative burdens, and fiscal uncertainties physician practices are facing related to the pandemic, the Medicare payment system is on an unsustainable path. We are urging members of Congress to support H.R. 8800 (Bera), the Supporting Medicare Providers Act of 2022, which would stop the 4.42% of the cuts related to budget neutrality adjustments in the Medicare Fee Schedule. Please lend your voice to this effort by calling on your members of Congress to support H.R. 8800. Visit accma.org for the latest updates and contact information.

We are also urging Congress to make the investments needed to reform the Medicare payment system permanently.

Physicians simply cannot afford to operate under the current payment system. Congress must reform the Medicare payment system to make it simpler, more reflective of real-world practice costs, and more predictable for both physicians and CMS. The AMA, CMA, and others have developed guiding principles for permanent reforms that will drive our advocacy efforts for a longterm permanent fix.

This is one of many advocacy issues we will address in the year ahead and beyond. I am both humbled and honored to be asked to serve as the ACCMA’s President for 2023. I have the singular privilege of becoming part of the history of this organization while forging a path to our future. I hold this organization in such continued on page 10

Call on Congress to Stop the Medicare Cuts! Visit accma.org/Issues/ Medicare-Payment-Cuts for the latest updates and contact information ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

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NEWS & COMMENTS

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The ACCMA would like to recognize our 2022 Annual Meeting Sponsors

The ACCMA would also like to acknowledge the contributions of the following groups: TPMG Diablo TPMG East Bay TPMG Greater Southern Alameda Area St. Rose Hospital Medical Staff Alameda Alliance for Health Alameda Hospital Alameda Health System Sinkler Miller Medical Association Eden Medical Center

2022 ANNUAL MEETING

ACCMA 154th Annual Meeting

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he ACCMA held its 154th Annual Meeting at the Claremont Hotel in Berkeley on Friday, November 4th. Over 150 ACCMA members, their families, and distinguished guests attended this year’s meeting. Highlights included the installation of the 2023 ACCMA officers: Edmon Soliman, MD, FACP (President), Albert Brooks, MD (President-Elect), Irene Lo, MD (SecretaryTreasurer)—and recognition of Doctor Robert Edelman’s tremendous leadership as ACCMA President in 2022. The event also featured guest speaker, Keena Turner, four-time Super Bowl

champion for the San Francisco 49ers.

All proceeds from the ACCMA Annual Meeting benefit the ACCMA Medical Student Scholarship Program, which supports summer research by medical students in the UC Berkeley/ UCSF Joint Medical Program (JMP) who are engaged in community-based health projects. The ACCMA extends its appreciation to everyone who was able to make this year’s festivities such a success. We hope you can join us for next year’s event on Friday, November 3, 2023. Save the date!

Clockwise from left: Guest speaker and Super Bowl champ Keena Turner leads a post dinner stretch; Mr. Turner with Drs. Edmon and Sonika Soliman; Drs. Sharon Drager, Aileen Murphy, and Irene Lo; guests enjoying being back together in person.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

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2022 ANNUAL MEETING

Clockwise from left: Guests sharing a laugh together over dinner; Dr. Soliman honoring the ACCMA Presidents who have served during COVID, Drs. Robert Edelman, Katrina Peters and Suparna Dutta; local physicians from Epic Care; Dr. Soliman bestowing the honorary Past President’s gavel on Dr. Edelman.

PRESIDENT'S PAGE (continued from page 7)

high esteem, and I accept this honor with deep gratitude.

Because the real support first comes from home, I would like to thank my family, notably my parents, Efrayem and Sameea Soliman, and parents-in-law, Nitin Shah and Daksha Shah. Most importantly, I would like to thank my beautiful and multitalented wife, Sonika, without whose enduring support (and patience), I would not be where I am now. She is my strongest advocate both privately and publicly. A physician herself, she paused her full-time career shifting to per-diem to raise our two wonderful children, of whom we are very proud, while taking care of EVERYTHING so I could continue in my career and medical practice, doing the

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work she knows I love to do. She is one of the most generous and selfless people I know.

I would also like to thank my mentors, supervisors, and coaches. As I have said before, everyone needs a “Yoda.” They have taught me and demonstrated both the art and the science of medical practice, as well as the value and virtue of leadership as the highest expression of service. Finally, I would like to thank our Medical Society, the ACCMA, my peers the Physician Councilors, and the ACCMA staff for their support, faith, and confidence in me. You have entrusted me with this leadership role, and I embrace it with humility and reverence.

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

ACCMA LEADERSHIP OPPORTUNITIES

ACCMA Leadership Opportunities

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hrough ACCMA and CMA, physicians lead and improve the practice of medicine to better patients’ lives and the community’s health. The most important way you can get involved is by being a member: your membership dues enable us to fight for you, the issues you care about, and create a healthy practice environment for you and your patients. Simply put, without your membership, we would not exist. Thank you for your membership!

Beyond membership, there are a wide range of opportunities for members to get more involved in supporting our work. We currently have several ACCMA Leadership Opportunities that are open to members. We invite you to join us!

JOIN THE ACCMA COUNCIL The Council serves as the elected governing body of the Association and establishes the policies of the ACCMA, assumes fiduciary responsibility for successful operations, and represents the profession of medicine in the local community and beyond.

Members of the Council also serve as members of the ACCMA’s delegation to the House of Delegates. The Council meets four times per year in-person at ACCMA Headquarters; dinner is provided. A Zoom option is available for those who are unable to attend in-person.

The ACCMA Council is comprised of representatives from the various geographic districts around the East Bay as well as the ACCMA Officers. Please see page 13 for current vacancies.

JOIN THE ACCMA/DISTRICT IX DELEGATION TO THE CMA HOUSE OF DELEGATES The ACCMA/District IX Delegation represents the ACCMA within the House of Delegates (HOD). This includes attending the CMA HOD meeting in-person over a weekend in late October (for 2023, it will be October 20-22 in Los Angeles) with expenses reimbursed and participating in the virtual (online) yearround resolutions process. In addition to attending the in-person HOD meeting, the Delegation meets approximately quarterly via Zoom to consider individual resolutions submitted through the year-round process and other related business.

JOIN AN ACCMA COMMITTEE ACCMA committees are responsible for developing many of the ACCMA’s policies and programs that assist physicians and improve the quality of medical care in our community. Hundreds of ACCMA members currently serve on ACCMA committees

Outgoing ACCMA President Dr. Robert Edelman is presented a plaque from the ACCMA Council in honor of his service by incoming President Dr. Edmon Soliman.

– it’s a great way to get engaged, connect with colleagues, solve problems, and create solutions for the betterment of the medical profession and the patients we serve. Visit accma.org/Leadership/ ACCMA-Committees and apply online before December 1 to serve on an ACCMA committee in 2023. Applications are being accepted for the following committees: • CME Committee • Community Health Committee • Credentials Committee • Emergency Committee • Health Equity Task Force • Legislative Committee • Medical Services, Technology, and Quality of Care Committee • Membership and Communications Committee • Physician Leadership Committee • Physician Wellbeing Advisory Committee NEW ACCMA COUNCILORS ACCMA would like to welcome the following new members to the ACCMA Council: • District 3 (Southwest Contra Costa) Councilor: Aileen Murphy, DO, General Surgeon continued on page 25

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2023 ACCMA COUNCIL

2023 ACCMA COUNCIL

President Edmon Soliman, MD

President-Elect Albert Brooks, MD

Secretary-Treasurer Irene Lo, MD

Immediate Past President Robert Edelman, MD

District 1-A Kiran Narsinh, MD

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District 3-A Ross Pirkle, MD

District 3-B Kristen Lum, MD

District 3-C Eric Chen, MD

District 3-D Aileen Murphy, DO

District 3-E Jeffrey Poage, MD

District 4-A Nimisha Mishra Shukla, MD

District 4-B Irina Kolomey, MD

District 5-A Eric Cain, MD

District 5-B Shakir Hyder, MD

District 5-C Terrence Lin, MD

District 6 Clifford Wong, MD

District 7-A Thomas Powers, MD

District 7-B Steven Rosenthal, MD

District 8 Stephen Post, MD

District 9 Suresh Sachdeva, MD

District 10-A James Hanson, MD

District 10-B Terry Hill, MD

District 10-C Sijie Zheng, MD

District 10-D Richard Rabens, MD

District 10-E Rollington Ferguson, MD

District 11-A Alexander Kao, MD

District 11-B

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District 10-F Steve Y. Lee, MD

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

Lisa Asta, MD

District 12-A Jonathan Savell, MD

2023 ACCMA COUNCIL

2023 ACCMA COUNCIL

District 12-B Harshkumar Gohil, MD

District 2 – Alternate Eric Alexander, MD

District 3 – Alternate A Michael Stein, MD

District 3 – Alternate B Stacey Hunt, MD

District 3 – Alternate C Colin Mansfield, MD

District 3 – Alternate E Kenneth Grullon, MD

District 4 – Alternate A Zahora Nicola Ally, MD

District 5 – Alternate A Jeffrey Stuart, MD

District 5 – Alternate B Gautam Pareek, MD

District 5 – Alternate C Basil Besh, MD

District 6 – Alternate Qaiser Niaz, MD

District 7 – Alternate A Chao Ho, MD

District 10 – Alternate A Katrina Saba, MD

District 10 – Alternate B Warren Strudwick Jr., MD

District 10 – Alternate C Gary Goldman, MD

District 10 – Alternate E Renee Fogelberg, MD

District 11 – Alternate A Rohini Naronha, MD

District 12 – Alternate B Sundeep Nayak, MD

CMA Trustee Suparna Dutta, MD

CMA Trustee Katrina Peters, MD

AMA Delegate Patricia Austin, MD

District 7 – Alternate B Renee Wachtel, MD

District 11 – Alternate B Judith Stanton, MD

AMA Alternate Mark Kogan, MD

District 12 – Alternate A Leena Mehandru, MD

District 1: Crockett, El Sobrante, Hercules, Pinole, Richmond, Rodeo, San Pablo District 2: Concord, Martinez, Pleasant Hill District 3: Alamo, Lafayette, Moraga, Orinda, Walnut Creek District 4: Antioch, Brentwood, Byron, Clayton, Oakley, Pittsburg District 5: Fremont, Newark, Union City District 6: Castro Valley, Dublin, Hayward District 7: San Leandro, San Lorenzo District 8: Alameda District 9: Danville, Diablo, San Ramon District 10: Oakland, Piedmont, Emeryville District 11: Albany, Berkeley, El Cerrito, Kensington District 12: Livermore, Pleasanton

Vacancies District 1-B – Vacant District 1 – Alternate A District 1 – Alternate B District 3 – Alternate D District 4 – Alternate B District 8 – Alternate District 9 – Alternate District 10 – Alternate D District 10 – Alternate F

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

13

HIPAA UPDATES

What's New with HIPAA

By David A. Ginsberg, President, PrivaPlan Associates, Inc.

T

here may be significant changes to the HIPAA regulations released in the next few months, based upon a Notice of Proposed Rulemaking released by the Office for Civil Rights almost two years ago.

Included in the proposed changes are reductions to some of the barriers for patient access or transfer of their own Protected Health Information (“PHI”). For example, while HIPAA has always allowed a patient the opportunity to inspect or review their protected health information, there has been confusion or lack of clarity as to whether the patient should be allowed to take a photograph of a paper or electronic record. The proposed rule clarifies that it is permissible for a patient to take a photograph of their own PHI. Of course, patients should never be left alone with their PHI when they are at your office; they should be chaperoned or supervised while inspecting their PHI in paper or electronic form.

The next change is not significant for covered entities and physicians in California. It reduces the maximum time to provide access to PHI from 30 days to 15 days. However, this time frame has been the California law for quite some time. Under the proposed rule, requests by patients to transfer their electronic PHI to a third-party can be limited to only the electronically maintained health information that is contained in an electronic health record. This is an important upgrade that helps to align access and transfer requests to the 21st Century CURES Act Information Blocking Rule which allows patients the right to request transfer of “electronic health information” (EHI) to a third-party. In making this clarification the regulation is specifying that the totality of the information you are required to release is the ePHI maintained in an EHR. Other proposed changes include requiring physicians and other covered entities to provide an individualized estimate of the fees for providing a patient with a copy of their own PHI. This is in addition to the long-standing requirement for charging the patient a reasonable cost-based fee.

The next proposed change is a requirement for patients to direct the sharing of their PHI maintained in an EHR among covered entities. For example, if you are using EPIC, the instance of EPIC that you participate with may be supplied to you by a regional hospital system or by a third-party organization. Within these EPIC instances, provider A can see provider B’s patient EHR notes. This is known as “break the glass”. The proposed regulation gives patients additional power and rights over the direction of 14

that sharing of information. This could potentially create additional burden on medical practices to ensure that they are gathering and documenting the sharing information.

Another change requires physicians to respond to certain records requests from other providers when the patient has directed those entities to do so. But hasn’t this has always been the case? It has; however, we continue to see instances where medical practices or hospitals demand a copy of a written authorization from the patient before releasing PHI to another physician who has a treating relationship with the patient. This has always been incorrect under HIPAA, but the rulemaking is designed to clarify your obligation to release information or have information released when the patient has made such a request.

Other changes include: • Eliminating the requirement to obtain a written acknowledgment of receipt of the HIPAA notice of privacy practices.

• Permitting HIPAA covered entities to disclose PHI to avert a threat to health or safety when harm is seriously and reasonably foreseeable. The current HIPAA language states that you are allowed to disclose information to “prevent or lessen a serious eminent threat to the health or safety of a person or the public”. This change makes it simpler to provide information, especially to governmental authorities or public health officials.

• Broadening the ability to make certain uses and disclosures of PHI based on the physician or provider’s good faith belief that it is in the best interest of the individual. This will go a long way to simplifying release of information for patients who are incapacitated (to family members or other caregivers) without being able to obtain an authorization, based upon the good faith belief by the healthcare provider. Of course, it will be important to document why you believe this to be the case.

• The addition of a minimum necessary standard exception for individual care coordination and case management regardless of whether the activities constitute treatment or healthcare operations. Why is this important? Since the publishing of the Privacy Rule in 2003 and the subsequent HIPAA omnibus rule of 2013, care coordination and case management are more frequently conducted especially for chronic diseases.

There is confusion in the physician community whether the continued on page 16

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

HOUSE OF DELEGATES

CMA Tackles Physician Workforce and Health Care Reform at House of Delegates

T

he California Medical Association (CMA) recently convened its 151st annual House of Delegates (HOD) meeting in Los Angeles.

Over 300 California physicians debated and outlined a policy agenda on major issues that have been determined to be the most important issues affecting members, the association, and the practice of medicine. The association also installed its new officers, including new CMA President Donaldo M. Hernandez, MD, an internist and hospitalist from Santa Cruz.

The major issues the delegates focused on this year were: • Physician Workforce: Our state is facing a physician shortage that has reached crisis proportions, and the COVID pandemic has placed additional pressure on an already strained system. Expanding the physician workforce so that every patient has timely access to affordable, quality care is one of CMA’s top priorities. And as California continues to grapple with longstanding workforce challenges, the Dobbs decision is creating new workforce challenges, particularly for medical students and residents in states that restrict or ban

•

•

abortion services.

Health Care Reform: In 2019, the Healthy California for All Commission was formed and charged with developing a plan to move our state towards a unified financing system for health care delivery. In January 2020, the CMA Board of Trustees established a Health Care Reform technical advisory committee to review and refine the association’s health care reform policies. The TAC developed a set of principles to ensure that any health care reforms will deliver high quality, affordable and evidence-based care to all. CMA’s commitment to universal access remains steadfast.

Mental Health: Over the last five years, the California has committed to investing billions of new dollars into improving mental health services for all Californians across all delivery systems. The scope of these investments is sweeping, and implementation of many of the initiatives, along with growing the state’s mental health workforce, will take years to accomplish. continued on page 16

Clockwise from left: CMA HOD gathered in L.A.; Dr. Steve Una addresses the HOD; hundreds of physicians from across California participated; Dr. Steve Lee speaks as the Young Physician Section Assembly; Dr. James Hanson testifies on behalf of the ACCMA; Dr. Albert Brooks getting jiggy at the annual gala.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

15

HOUSE OF DELEGATES

(continued from page 15)

The final actions of the House of Delegates, including newly established policies and newly elected officers, are now posted at cmadocs.org/hod-2022.

If you have any questions, please do not hesitate to contact Mr. David Lopez, ACCMA Director of Advocacy and Governance, at dlopez@accma.org or by phone at 510-654-5383.

THANK YOU Thank you to the following members for representing the ACCMA District IX Delegation at the CMA HOD Meeting: Deepu Bindal, MD Steve Lee, MD Albert Brooks, MD Terence Lin, MD Arthur Chen, MD Myngoc Nguyen, MD Eric Chen, MD Thomas Powers, MD Kathleen Doo, MD Suresh Sachdeva, MD Robert Edelman, MD Jonathan Savell, MD Harshkumar Gohil, MD Edmon Soliman, MD James Hanson, MD Thomas Sugarman, MD Christina Hopson, DO Steven Una, MD Pauline Hynhn, MD Renee Wachtel, MD Irina Kolomey, DO Clifford Wong, MD Arden Kwan, MD Sijie Zheng, MD Thank you also to the following ACCMA members who represented other delegations: Christopher Chen, MD, EMOS Suparna Dutta, MD, CMA Board of Trustees Terry Hill, MD, Administrative Practice Forum Jeffrey Klingman, MD Very Large Group Forum Katrina Peters, MD, CMA Board of Trustees Katrina Saba, MD, Very Large Group Forum

From top to bottom: Dr. Thomas Sugarman providing testimony; Dr. Arthur Chen also testifying; Delegates applaud the contributions of CMA outgoing President Dr. Robert Wailes.

HIPAA UPDATES (continued from page 14) current HIPAA definitions of treatment or healthcare operations support release of PHI in these situations. This change clarifies that a provider is allowed to release such information.

In conjunction with the above, the definition of healthcare operations itself has been broadened to cover care coordination and case management.

Clarification related to the armed forces and their ability to use or disclose PHI to all uniform services as part of their

•

•

healthcare.

While the final rule may or may not include all of these changes (or may modify them further), they collectively represent the most significant changes in a decade. As of the publication of this article we are not certain whether the proposed rulemaking will be published. There is some speculation that it will occur before the end of 2022. For further information, please access the on demand webinar at bit.ly/3TIZ02c.

Visit pathlms.com/medical-society for all the latest educational CME opportunities from ACCMA 16

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

LEGISLATIVE WINS

Legislative Session Comes to an End

A

s the 2021-22 legislative session came to a close, Governor Gavin Newsom acted on a number of important bills supported and sponsored by the California Medical Association.

Below are some of the health care bills that Governor Newsom signed: • SB 245 (Gonzalez) – Eliminates cost-sharing for abortion and abortion-related services regardless of a patient’s insurance type.

• SB 1419 (Becker) – Provides physicians the opportunity to respect patient privacy and wishes when releasing health Information.

• SB 1473 (Pan) – Requires health plans and insurers to cover therapeutics approved or granted emergency use authorization by the federal Food and Drug Administration (FDA) – to treat COVID-19 or any other disease that the Governor has declared a public health emergency – regardless of the provider’s network status.

• AB 32 (Aguiar-Curry) – This bill guarantees all visits via telehealth, including audio-only, continue to receive payment parity in relation to in-person visits for equivalent services across all plan-provider contracts.

• AB 852 (Wood) – Exempts low volume prescribers from California’s e-prescribing requirements.

• AB 1636 (Weber) – Preserves the integrity of the medical profession by ensuring physicians convicted of sexual assault with a patient lose their license with no ability for reinstatement.

• AB 1666 (Bauer-Kahan) – Enacts legal protections from civil and criminal liability to the extent possible for clinicians that provide abortions to patients who reside in other states with hostile abortion laws.

• AB 2098 (Low) – Seeks to provide the Medical Board of California with clear authority to discipline a physician for unprofessional conduct if they disseminate or promote COVID-19 misinformation or disinformation.

• AB 2260 (Rodriguez) – Requires the installation of trauma bleeding control kits in newly constructed public and private buildings.

We want to thank ACCMA members for all your efforts throughout this entire legislative cycle. Making phone calls, sending emails, engaging in social media, and especially meeting with legislators makes a big difference in the legislative process.

ACCMA and CMA couldn’t have done this without your efforts.

We look forward to your continued advocacy efforts on behalf of the medical profession to protect access to high quality health care.

If you have any questions, please do not hesitate to contact Mr. David Lopez, ACCMA Director of Advocacy and Governance, at dlopez@accma.org or by phone at 510-654-5383. Once again, thank you!

PROTECTING PATIENT SAFETY In response to CMA and ACCMA advocacy efforts, Governor Newsom vetoed AB 2236 (Low), which would have authorized optometrists to perform several surgical procedures on a patients’ eyes that require the use of a scalpel or an injection and “anterior segment lasers,” if they met specified education and training requirements that were far inferior to the requirements that ophthalmologists must meet. As part of the advocacy efforts, the ACCMA sent a letter to Governor Newsom highlighting several of the discrepancies in the bill, such as the proposed requirement for an optometrist to complete only 43 surgical procedures on live patients in their training compared to the 133 surgeries an ophthalmology resident would complete of just three surgical procedure types. Ultimately, optometrists should be trained sufficiently to ensure they may safely and independently perform these procedures. Governor Newsom’s veto of AB 2236 will protect patients from lifethreatening consequences.

Join us in Sacramento on April 19th, 2023 for CMA Legislative Advocacy Day to discuss health care policy issues and lobby legislators. Email rsvp@accma.org to save your spot.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

17

NEWS & COMMENTS

(continued from page 8)

FEBRUARY 24-25, 2023 — LOS ANGELES, CA UCLA Luskin Conference Center

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Xavier Becerra The 25th U.S. Secretary, DHHS

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Stephen Swensen, MD, MMM Senior Fellow, IHI; Former CQO and Director of Leadership and Organization Development, Mayo Clinic

Christine Sinsky, MD Vice President of Professional Satisfaction, American Medical Association

Paul DeChant, MD, MBA CEO/Principal, Paul DeChant, MD, MBA, LLC and Burnout Symposium Co-Chair

StopHealthcareBurnout.com

Presenting Sponsor:

PHYSICIAN BURNOUT REPORT

Physician Burnout Rate Spikes to New Height By the American Medical Association

T

he burnout rate among physicians in the United States spiked dramatically during the first two years of the COVID19 pandemic, according to a newly published study in Mayo Clinic Proceedings. Researchers found that 2020 marked the end of a sixyear period of decline in the overall rate of work-induced burnout among physicians. By the end of 2021, after 21 months of the COVID-19 pandemic, the physician burnout rate spiked to a new height that was greater than previously monitored by researchers.

While the worst days of COVID-19 pandemic are hopefully behind us, there is an urgent need to attend to physicians who put everything into our nation’s response to COVID-19, too often at the expense of their own well-being,” said AMA President Jack Resneck Jr., M.D. “The sober findings from the new research demand urgent action as outlined in the AMA’s Recovery Plan for America’s Physicians, which focuses on supporting physicians, removing obstacles and burdens that interfere with patient care, and prioritizing physician well-being as essential requirements to achieving national health goals.”

The new physician burnout research builds on landmark studies conducted at regular intervals between 2011 and 2021 by researchers from the AMA, Mayo Clinic and Stanford Medicine.

Together, these studies found the overall prevalence of burnout among U.S. physicians was 62.8% in 2021 compared with 38.2% in 2020, 43.9% in 2017, 54.4% in 2014, and 45.5% in 2011. Each study consistently demonstrated that the overall prevalence of occupational burnout among physicians were higher relative to the U.S. workforce.

The COVID-19 pandemic exacerbated many of the drivers of physician burnout. Research has shown that due to COVIDrelated stress, 1 in 5 physicians intend to leave their current practice within 2 years.

The AMA’s ongoing work to mitigate physician burnout, as exemplified by the Recovery Plan for America’s Physicians, strives to attack the dysfunction in health care by removing the obstacles and burdens that interfere with patient care. Visit accma.org/ Wellness and click on the Wellness Resources drop-down to find tools, information, and resources from ACCMA and AMA to help rekindle a joy in medicine.

The AMA continues to work on every front to address the physician burnout crisis. Through our research, collaborations,

ACCMA SUPPORTS PHYSICIAN WELLNESS ACCMA members have access to support services through the ACCMA: • Therapy Sessions: ACCMA members can meet one-on-one with therapists for up to four sessions at no charge. Both physicians and medical residents can take advantage of this ongoing program. The ACCMA has developed a list of vetted mental health professionals who are available to meet with physicians for mental health consultations.

• Confidential Peer Support: Members of the ACCMA Advisory Committee on Physician Wellbeing are available to provide immediate peer support at no cost. Call (510) 6545383 or send an email to wellbeing@accma. org​to request this confidential service.

• Online Education and Resources: ACCMA Wellness Resource library contains available physician wellness on demand webinars, TedTalks, podcasts, websites, articles, and books for physicians to explore.

• The Bay Area Physician Wellness Collaborative: Join fellow wellness leaders charged with "fixing the physician burnout problem" and receive expert guidance, tools and resources, and a forum for sharing experiences and best practices. Using a group coaching model, the Collaborative provides a highly structured road map to make substantive changes over a three-year period that can fundamentally change your organization's practice environment and help restore joy to the practice of medicine.

Visit www.accma.org for more information.

advocacy and leadership, the AMA is working to make the patient‐ physician relationship more valued than paperwork, preventive care the focus of the future, technology an asset and not a burden, and physician burnout a thing of the past.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

19

NEW MEMBERS

Travis Gaujot Bias, DO, FAAFP, MPH, Family Medicine, 3M TPMG Antioch

Joanne Po-yee Kong, DO Family Medicine

Sarah E Michael, MD Internal Medicine

Patricia Nicole Lee, MD Neurology

Gilbert Tetteh, MD Emergency Medicine

Matthew Allen De Niear, MD Ophthalmology

Aaron Michael Murphy-Crews, MD Internal Medicine

Sarah-Bianca Gabrielle Dolisca, MD Obstetrics and Gynecology

Sonny Truong Nguyen, MD Internal Medicine

Paul Yukio Wada, MD Internal Medicine

Melissa Julie-Anne Perez, MD Obstetrics and Gynecology

TPMG Berkeley Lawrence Kong Low, MD Pathology TPMG Fremont Quan Chen, MD Emergency Medicine Ruchika Sunil Chhibar, MD Nephrology Katya Isabel De Souza, MD Emergency Medicine Nitisha Hiranandani, MD Family Medicine Neda Najmi, MD Radiology TPMG Hayward Heather Christina Lee, MD Pediatrics

Jonathan Steve Phuong, MD Radiology Brittany Sabina Rush, MD Psychiatry Danielle Nichole Sanders, MD Anesthesiology Icelini Stavers-Sosa, MD Psychiatry Schuyler R Tong, MD Pediatrics Lana Dee Verkuil, MD Ophthalmology Liz Bingyi Wang, MD Urology Aleea Saffiyah Zamani, MD Psychiatry Lynn Qilin Zhang, MD Neurology TPMG Pinole

TPMG Livermore Jessica Elaine Keenan, DO Pediatrics

Christopher Ray Zamani, MD Family Medicine TPMG Pleasanton

TPMG Oakland Tiffany Jing Yih Au, MD Emergency Medicine

Susan Rose Hsu, MD Family Medicine

Jesse Max Berman, MD Radiology

Fiona Hoo Yeun Kim, MD Opthalmology

Lea Bornstein, MD Pediatric Hospital Medicine

Irene Roy-chowdhury, DO Family Medicine

Andrea Chai, MD Internal Medicine Abhay Sharad Dandekar, MD Pediatrics Jessica Hwei-Jay Fan, MD Neurology Veronica Gonzalez, MD Obstetrics and Gynecology Ned Douglas Kletz, MD Psychiatry Yoon Young Ko, DO Family Medicine

TPMG Richmond

TPMG San Leandro Nestor Amaranto Agbayani, Jr., MD Emergency Medicine Faizan Iqbal Ahmad, MD Internal Medicine Sarabeth Marie Copos, MD Emergency Medicine Fanny Huynh Du, MD Neurology Ronald Ferrer Espinosa, DO Internal Medicine Amar Kantipudi, MD Emergency Medicine Nandan Keshav, MD Radiology Christopher Kurt Lipinski, MD Internal Medicine Carrie Chen Lo, MD Pediatrics Priyal Yogesh Patel, MD Hospitalist Fatima Siddiqui, MD Psychiatry TPMG Union City Thoa Kim Ha, MD Obstetrics and Gynecology TPMG Walnut Creek Kapil Anand, MD Hospitalist Marie Johanna Boller, MD Obstetrics and Gynecology Eugenie Frances Como, MD Emergency Medicine Anoop Kaur Khalsa, MD Pediatrics

Samuel Benjamin Backus, MD Pediatrics

Joshua Andrew Lee, MD Emergency Medicine

Angelo Julio Chavez Guerrero, MD Family Medicine

Mehrdad Ali Mansouri, MD Hospitalist

Rand Michael Dadasovich, MD Internal Medicine

Robert Matthews, MD Nuclear Medicine

Aditya Singh Gill, MD Ophthalmology

David Graff Nathanson, DO Internal Medicine

Clint Michael Kraus, DO Family Medicine

Anish Hitesh Patel, MD Internal Medicine Phuc Duc Tran, MD Hospitalist

Join the ACCMA at www.accma.org/membership/join-now

20

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

REDUCING MALPRACTICE RISK

Your Med Mal Risk with Independent Contractors

By Margaret Martin and Lee McMullin, Cooperative of American Physicians (CAP)

T

he Cooperative of American Physicians (CAP) is pleased to share a recent “Case of the Month,” exploring the legal doctrines1 and rules that could seriously impact your liability exposure if you hire independent contractors.

In brief, we are specifically talking about the physician, physician assistant (PA), nurse, or nurse practitioner (NP) that classify as an independent contractor (IC) rather than an employee, often for tax purposes. There is a plethora of entangled issues involving a blend of legal doctrines1 that may affect what and how you present your ICs to the public, as the following case history demonstrates. First, we need a little understanding of some terms that affect what we’re about to talk about: ostensible agent, vicarious liability, and the ABC test.

The first term, “ostensible agent,”2 is described by Cornell Law as “…one where the principal has intentionally or inadvertently induced third persons to believe that such person was its agent although no actual or express authority was conferred on him as agent...” A classic example of the ostensible doctrine in action is the independent contractor physician encountered by a patient in the emergency room or urgent care setting where the patient looks to the hospital or urgent care center for treatment. The patient goes to the emergency room for services and accepts whichever physician is assigned to his or her case. Should issues arise over quality of care, the healthcare facility may be held responsible for the actions of that contractor.

Next, we will briefly touch on “vicarious liability.”3 Under vicarious liability, an employer can be held responsible or liable for the acts of his or her employees or agents. This doctrine is also known as respondeat superior,4 which in Latin means “let the master answer.”

Lastly, we have the “ABC test,”5 under California’s independent contractors (IC) rule. The ABC test was created by a California Supreme Court decision6 to define whether a person is really an IC or an employee, regardless of how you equate them for tax purposes. In California, under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions: • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work; and

•

The worker performs work that is outside the usual course of the hiring entity’s business; and • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

It remains to be seen how these rules will churn through judicial evolution on ICs and their application to a medical practice.

However, for now the rules are here to stay. Be aware of the rules and their effects on your practice as the following case illustrates.

A 29-year-old female presented to an Urgent Care Center with complaints consistent with those of the flu. The patient was seen by Dr. X, an independent contractor with the Urgent Care Center. The patient received a steroid injection, Tamiflu, and prescription for a NSAID. The patient was discharged home with the usual admonitions: Return to the center if symptoms persist/ worsen or go to the emergency room (ER).

Six days later, the patient presented to an ER with persistent flu-like symptoms. A thorough workup was performed, and the patient was admitted to the hospital with a diagnosis of sepsis, UTI, and pneumonia. The patient was discharged home two days later with significant improvement but subsequently filed a lawsuit against Dr. X and the Urgent Care Center.

In the complaint, the patient (now plaintiff) asserted causes of action for medical negligence and negligent hiring and supervision under both ostensible and vicarious liability theories. In essence, the plaintiff claimed that the Urgent Care Center owner/ operator should not have hired Dr. X or allowed him to work unsupervised at the time she was treated. The plaintiff discovered that Dr. X had a medical board accusation filed against him and contented that the Urgent Care Center should have fired Dr. X after learning about this accusation (the accusation was not patient care or clinically related). The owner/operator of the Urgent Care Center understood that the disciplinary action involving Dr. X had nothing to do with the practice of medicine and decided not to take action to terminate their contract with Dr. X. The owner/operator of the Urgent Care Center and the plaintiff eventually resolved this matter informally prior to trial/ arbitration. Had the Urgent Care Center remained in the case, it could have been held liable for the patient’s injuries. Absent an continued on page 22 ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

21

REDUCING MALPRACTICE RISK

(continued from page 21)

acknowledgement by the patient of the independent nature of the providers on duty, i.e., Dr. X, the Urgent Care Center could have been held liable under an ostensible agency theory if Dr. X was found negligent in his treatment of patient.

Insofar as the issue of agency to which our “Case of the Month” alludes – what factors may have weakened the Urgent Care Center’s argument that Dr. X was an independent contractor, not an agent? There were no posted signs, documents, conditions of admissions, or otherwise at the Urgent Care Center to indicate the providers on duty, regardless of license class, i.e., physician, PA or NP, were independent contractors and not employees of the Urgent Care Center. Had the patient been provided with this information when she was seen by Dr. X, the nature and degree of the Urgent Care Center’s involvement in this lawsuit may have been different.

The moral of the story - to reduce your liability for independent contractors: • Post proper signage stating which providers are independent contractors.

• Have patients sign an acknowledgement that the provider(s) they may see are not your employees. Hospitals accomplish that under its “conditions of admission.” You should have a similar tool.

• Credential your independent contractors to show your due diligence in evaluating license status, claims history, medical

•

board actions, etc., similar to a hospital’s credentialing process for its medical staff.

Consult a healthcare attorney on agency issues, as ignorance can take you places wisdom will never lead you.

As a leading provider of superior medical malpractice coverage in California for more than 40 years, CAP remains committed to providing physicians with secure and affordable protection and relevant practice and risk management resources, like these case studies, to help them run safe and successful practices. CAP is a proud supporter of the AlamedaContra Costa Medical Association. To learn more about becoming a CAP member, please call 800-356-5672 or email MD@CAPphysicians.com.

Professional liability coverage for CAP Members is provided through the Mutual Protection Trust pursuant to Ins. Code section 1280.7.

NOTE 1 https://www.law.cornell.edu/wex/doctrine 2 https://www.law.cornell.edu/wex/ostensible_agent#:~:text=The%20 %E2%80%9C....

3 https://www.shouselaw.com/ca/personal-injury/vicarious-liability/#:~:tex....

4 https://en.wikipedia.org/wiki/Respondeat_superior 5 https://www.contractscounsel.com/b/california-independent-contractor-laws 6 https://www.labor.ca.gov/employmentstatus/abctest/

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ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

Locum Tenens Permanent Placement Voice: 800- 919- 9141 or 805-6 41-9141 FAX : 805- 641 -914 3 jnguyen@ t r acyzw eig.com w w w.t r acyzw eig.c om

ALAMEDA ALLIANCE

Taking Steps Toward Ending Homelessness in Alameda County By: Scott Coffin, Alliance CEO

A

lameda Alliance for Health (the Alliance) is proud to serve over 330,000 children and adults in Alameda County. In this edition, you will read about the state’s efforts to tackle homelessness and what the Alliance is doing in partnership with local organizations to ensure that Alliance members have access to housing resources that will ultimately lead to better health outcomes.

Research studies have shown that homelessness is linked to enormous health inequities such as shorter life expectancy, higher mortality rates and greater use of hospital services. In California, on any given day, more than 150,000 people experience homelessness – resulting in adverse social conditions that exacerbate poor health outcomes. In our local community of Alameda County, according to the 2022 Homeless Point-In-Time (PIT) Count, 9,747 individuals were found to be unhoused, representing an increase of 1,725 individuals or 22% from 2019. Over the last few years, many local, regional, and state efforts have focused on finding solutions that will assist some of the most vulnerable people in our communities. That includes the Department of Health Care Services’ (DHCS) Housing and Homeless Incentive Program (HHIP) which began earlier this year and will continue through December 2023. HHIP aims to improve health outcomes and access to whole person care services by addressing housing insecurity and instability as a social determinant of health for the Medi-Cal population. Along with other Medi-Cal managed care plans throughout the state, the Alliance is participating in the HHIP, which allows the network of Alameda County safety net providers to earn significant funding to build capacity and to keep more people housed.

In partnership with Alameda County Health Care Services Agency (HCSA) and Anthem Blue Cross, the Alliance recently submitted an investment plan to the State of California, that was informed and supported by Alameda County’s Continuum of Care (CoC) program – which works to rehouse individuals and families experiencing homelessness. As part of the investment plan, the Alliance will invest approximately $26.5 million over the next 12-24 months to local efforts focused on addressing homelessness and housing insecurity. The investment plan includes

targeted funding that will lead to minimizing housing gaps for Alameda County Medi-Cal members. Over the next year, the Alliance will allocate funding through community-based organizations to build capacity for housing, recuperative care, and community supports designed to meet the social needs that impact the health of Medi-Cal members. The funding will also support operating funds to help make housing units for our highest need members, increase the number of medically frail beds for members with high medical needs and impairments who are experiencing homelessness, and assist with coordination efforts that will increase successful transitions into recuperative care, and maximize the use of available resources.

Additional investments include significant funding to support permanent housing opportunities for older, medically frail, individuals who are experiencing homelessness and partnering with local organizations to support capacity building efforts for housing units dedicated to serving our members. To better understand the landscape of our local unhoused community, the Alliance is supporting the 2024 Alameda County PIT Count that will enhance efforts to get a deeper understanding of the health needs of people experiencing homelessness. Our partnership with the Alameda County’s Health Care for the Homeless program is expanding to better support the Street Health Program – which provides outreach and engagement, health care services, and connections to available housing resources to residents throughout the county. Investments are being made to improve data infrastructure, and to support programs and interventions that focus on populations that are disproportionately experiencing or at risk of homelessness.

Throughout the development of this effort, the Alliance has aligned with the strategic priorities of our local Continuum of Care, including the Alameda County Health Care Services Agency’s Home Together 2026 Community Plan – with the goal of improving and addressing health outcomes for Alliance members. We will also continue to align with additional Alliance initiatives, work on building our capacity and partnerships to connect our members continued on page 25 ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

23

COUNCIL REPORTS

MAY 12, 2022

Doctor Edelman introduced and welcomed Ms. Christine Maki, who ACCMA recently hired as Administrative Assistant.

Doctor Edelman introduced the guest speakers, Doctor Shannon Udovic-Constant, Chair of the CMA Board of Trustees and a former member of the ACCMA; and, Mike Steenburgh, VP of Membership, Marketing and Component Relations.

Doctor Udovic-Constant and Mr. Steenburgh spoke about the MICRA Modernization Act (AB 35), which was a negotiated compromise in lieu of a ballot initiative that would have eviscerated MICRA. The Council approved the following appointments: • Doctor Sundeep Nayak as Alternate Councilor for District 12 • Doctors Aileen Murphy and Gautam Prasad as Alternate Delegates to the CMA House of Delegates representing ACCMA/District IX. • Doctor Ingrid Roseborough as ACCMA’s representative to the CMA Solo and Small Group Practice Forum.

The Council reviewed and approved the following recommendations from the ACCMA Executive Committee, and received a report regarding the ACCMA Executive Committee Planning Retreat, which was held March 4-6, 2022: • Recommendation 1: That ACCMA develop a virtual educational program for members about relative value units (RVU) management and offer it as a member benefit to help members understand and better manage RVUs in a manner that also supports work life balance.

• Recommendation 2: That ACCMA study effective communications strategies used by other professional associations for engaging nonmembers to join and through the Membership and Communications Committee identify actionable strategies that can be implemented by ACCMA to increase awareness and recruitment of nonmembers.

• Recommendation 3: That ACCMA survey members to learn more about social media use, and utilize this information to inform a revitalized social media strategy that reaches both members and nonmembers and results in increased awareness, engagement, and membership.

• Recommendation 4: That ACCMA recommend that ACCPAC decline a request to consider supporting candidates running for Alameda County District Attorney.

• Recommendation 5: That ACCMA, using existing physician wellness grant funds through the ACCMA Community Heath Foundation, engage a physician to serve as a director of the Bay Area Physician Wellness Collaborative to create the curriculum/trajectory, leverage existing resources, provide direction to the project, and direct quarterly convenings.

• Recommendation 6: That ACCMA convert the 2023 Physician Leadership Program to a scholarship model that will be open to all ACCMA members to apply and evaluate the sustainability of maintaining the program as a scholarship program after 2023 in light of available grant and sponsorship funds.

• Recommendation 7: That ACCMA engage CMA to

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manage membership dues billing on behalf of ACCMA. Recommendation 8: That ACCMA execute the lease renewal for its current office space and begin to evaluate alternative office spaces in the likely event of relocation within the next several years.

The Council approved a recommendation from the ACCMA Finance Committee to maintain the current annual dues base rate of $385 for the 2023 calendar year.

•

SEPT 8, 2022

Doctor Edelman presented a memento of gratitude to Ms. Mae Lum, Deputy Director, who is retiring from the ACCMA effective September 9, 2022.

Doctor Edelman presented a framed award on behalf of UCSF to Doctor Scott Zeller, recipient of the 2021 Elliott J. Royer Award for Psychiatry. Doctor Edelman noted that Doctor Zeller is nationally known for his pioneering work in psychiatric emergency care in developing what is known as the “Alameda Model,” developed during his time as chief of psychiatric emergency services at John George Psychiatric Hospital.

Under his leadership, the center was transformed from a traditional ward where restraints were common into one that treats patients in a more supportive, living room like setting. Doctor Zeller has led similar transformational efforts around the country. The ACCMA nominated Doctor Zeller for the award and the Council congratulated Doctor Zeller on his accomplishment.

The Council received a presentation from Dustin Corcoran, CMA CEO, regarding the legislative passage of AB 2236, a bill that would significantly expand the scope of practice of optometrists allowing them to perform surgical procedures without sufficient training to do so. It was noted that the ACCMA sent a letter to the Governor urging his veto.

The Council approved a recommendation from the Executive Committee to contribute $100,000 to the Community Health Foundation in support of current and future community health projects under the auspices of CHF. The Council approved the Finance Committee’s recommendation to approve the proposed budget for FY 2022-23, which commences October 1, 2022. The budget includes projected revenue of $1,745,321 against projected expense of $1,731,950, resulting in net operating income of $13,371.

The Council received information about focus groups that ACCMA is conducting that are focused on improving engagement and communications with physicians who are less engaged in ACCMA activities. ACCMA is also working with new external partners to improve communications and marketing capabilities over the next year. These activities are part of implementing the ACCMA success plan.

The Council received information about AB 1278, which requires physicians to provide notice to patients about the federal open payments database. Members of the Council requested information about how this would be implemented and what requirements would be imposed on physicians.

The Council received information about the upcoming November general election

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

ACCMA LEADERSHIP OPPORTUNITIES

• •

District 4 (East Contra Costa) Alternate Councilor: Zahora Nicola Ally, MD, Radiation Oncologist District 5 (Southern Alameda County) Councilor: Eric Cain, MD, Orthopedic Surgeon ACCMA COMMITTEES: RECENT ACTIVITIES

The ACCMA Health Equity Committee met on September 15 and discussed the possibility of launching a new community health collaborative focused on reducing health disparities in our community. The Committee provided positive feedback about the concept and requested to see data on inequities to help focus the efforts of such a collaborative project model. The committee plans to explore disparities in both Alameda and Contra Costa Counties. The committee also discussed the Oakland City Council resolution declaring racism a public health threat and discussed practical strategies that ACCMA can offer to assist the City is acting upon the resolution in a meaningful way.

The ACCMA Medical Services, Technology, and Quality of Care Committee met on September 20 and discussed legislative strategies for protecting California physicians from civil and criminal liability related to performing medication abortions for patients residing in states with restrictive abortion laws. The Committee also received an update on the California Data Exchange Framework and requested more information about compliant EMR systems, and discussed challenges for expanding access to medication assisted treatment and buprenorphine for opioid dependent patients.

The ACCMA Advisory Committee on Physician Wellbeing met on October 6 with a guest presentation

ALAMEDA ALLIANCE (continued from page 23)

to needed housing services and build upon existing priorities that have been established by our local community. While we know these efforts are a tremendous undertaking for safety net leaders, we remain committed to addressing housing insecurities through a variety of partnerships across Alameda County, purposed to improve the health and well-being of all residents.

• •

(continued from page 11)

District 10 (Oakland) Councilor: Steve Lee, MD, Hematologist/Oncologist District 11 (Berkeley) Councilor: Lisa Asta, MD, Pediatrician

from a physician coach who discussed the benefits of coaching, the pathways to becoming a physician coach, and the distinctions between coaching and cognitive behavioral therapy. The committee also discussed the topic of physician suicide and the response to a recent physician suicide at Highland Hospital.

The ACCMA Membership and Communications Committee met October 18 and reviewed the results of the most recent annual ACCMA membership survey, which highlighted differing views of and engagement with ACCMA based on age range and mode of practice. The Committee also received updates on work that ACCMA is undertaking to improve the effectiveness of communications and gather insights about members through a series of focus groups. The Committee reviewed recently published information outlining the range of engagement opportunities available to ACCMA members.

The ACCMA Finance Committee met on October 25 and received an update on the ACCMA Investment Portfolio from our investment advisor. ACCMA maintains a balanced investment portfolio that has declined in value by about 20% year-to-date, which is slightly better than the benchmark. Despite the poor performance of the market, the ACCMA is very financially healthy with strong operating margins and ample reserves.

ABOUT ALAMEDA ALLIANCE FOR HEALTH Alameda Alliance for Health (Alliance) is a local, public, notfor-profit managed care health plan committed to making highquality health care services accessible and affordable to Alameda County residents. The Alliance provides health care coverage to over 310,000 low-income children and adults through National Committee for Quality Assurance (NCQA) accredited Medi-Cal and Alliance Group Care products.

Explore opportunities to get involved in advocacy, ways to stay informed, and resources for personal and professional development at accma.org/GetInvolved.

ACCMA BULLETIN | NOVEMBER/DECEMBER 2022

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IN MEMORIAM

RONALD MASAHIKO SATO, MD (1944-2022) passed away peacefully on September 20, at Kaiser Permanente San Leandro Medical Center. Born in 1944 to Ronald Minoru and Beatrice Mitsue Sato and raised in Pauoa Valley in Hawaii, Dr. Sato attended Roosevelt High School, the University of Hawaii, and the Yale School of Medicine. He thereafter completed his plastic and reconstructive surgery training at Stanford University, later serving on Stanford’s teaching faculty. His burn fellowship was completed at the University of Texas Health Science Center at Dallas. Dr. Sato also served as medical director of the burn centers at Santa Clara Valley Medical Center and Doctors Medical Center in San Pablo, as well as chief of staff at Doctors Medical Center. Living and working in the Bay Area for most of his career, Dr. Sato practiced exclusively in burn/wound care and reconstructive surgery for over 50 years.

His contributions to medicine extended beyond the immediate community via his participation in Interplast (now called ReSurge International) as a faculty member, board member and provider for humanitarian surgery trips to help children in under-resourced areas in Latin America and Africa. Patients, colleagues, friends, and family experienced “Dr. Ron” as

compassionate, generous, and humble despite his remarkable talent and wit. Dedicating every aspect of his professional and personal life to fulfilling his call to patient care, he supported the entire healthcare team as well as his patients. Survivors include sister Christine Sato (Richard Lightner) of Hawaii and daughter Taitt Sato Vigus, son-in-law Devon W. Vigus, and cherished grandson Zane W. Vigus of California. Dr. Sato was preceded in death by his parents. He was a member of the ACCMA for one year.

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UNDERSTANDING WORK RVUs CALCULATION & COMPENSATION

Work RVUs aim to measure and compensate for a physician’s productivity but fail to account for insurance payor reimbursement rates or collections revenue. Still, WRVUs are increasingly becoming the compensation method of choice for hospital foundations, universities, and medical groups. It is crucial that physicians learn how to calculate WRVUS if joining an organization or being acquired, as well as understand the compensation methodologies, how to negotiate dollars per WRVU, and how to monitor the recordation of WRVUs for accurate compensation.

AVAILABLE ON DEMAND bit.ly/3puf7nt

This series consists of three 20-25 minute segments: SESSION 1

SESSION 2

SESSION 3

CALCULATING RVUS: MEASURING PRODUCTIVITY

NEGOTIATING RVUS: COMPENSATION AND BONUSES

MONITORING RVUS: FORMULAS AND CONTRACTS

SPEAKER: DEBRA PHAIRAS Debra Phairas, President Practice & Liability Consultants, LLC, has assisted physicians/groups to calculate WRVUs and hospitals with compensation formulas, and has been an expert witness in cases involving compensation and WRVUs. www.practiceconsultants.net Please contact ACCMA Associate Director of Education and Events, Jennifer Mullins, at jmullins@accma.org with any questions.

26

ALAMEDA-CONTRA COSTA MEDICAL ASSOCIATION BULLETIN

COUNCIL REPORTS

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