Letter to Editor
Times Union
February 12, 2024

As surgical leaders dedicated to ensuring access to care for all New Yorkers, we are compelled to respond to the ongoing conversation around expanding liability in wrongful death lawsuits. By vetoing the most recent iteration of the Grieving Families Act — a well-intended but fundamentally flawed proposal — Gov. Kathy Hochul showed herself as a true leader who is focused on protecting our communities and our health care system. While we acknowledge the potential benefits of updating the law, our primary concern lies in the way the bill was written and the unintended consequences that follow from such broad and subjective language. And while Hochul vetoed the bill last year, it will likely come up again in 2024.
 
Engaging Milliman Inc., a top actuarial firm, the medical community showed that this legislation will result in a daunting 40 percent increase in medical professional liability insurance costs. With New York state already burdened by some of the nation’s highest insurance premiums, this bill posed a severe threat to our health care system. Milliman’s findings were further supported by the state’s own Division of Budget, which estimated a staggering $214 million increase in medical liability expenses for state-supported hospitals alone.

As written, the vetoed bill overreaches and goes far beyond similar laws in other states and lacks essential guardrails. As conversations continue, our physician community stands ready to collaborate with policymakers to develop a more balanced approach that promotes justice without jeopardizing the stability of our health care system. We thank Hochul for vetoing this detrimental legislation and safeguarding access to care.

Dr. Jacob Moalem, FACS, is the president of the New York Chapter of the American College of Surgeons. Dr. Anthony Vine, FACS, is vice president of the chapter.

The New York Chapter continues to advocate on behalf of surgeons and their patients by partnering with the Medical State Society of NY and specialty societies to share its concerns and supports for several proposals found in this year's Governor's Budget. Below is an at-a-glance of the issue. Visit our website to see all of the legislative proposals we are following.

•  Elimination of Physician Right to Bring a Claim Dispute to IDR Process
  There is a proposal within Part H of the Governor's Executive Budget Health & Mental Hygiene bill that would eliminate the right of physicians to bring a claim dispute to the Independent Dispute Resolution (IDR) process for various public health insurance plans.  The Chapter signed onto a joint letter opposing the prohibition to bring out of network Medicaid Managed care payment disputes to IDR.
  

• Include Telehealth Payment Parity in Governor's Budget
  The COVID-19 public health emergency triggered a significant, and necessary shift in how patients receive health care, with telemedicine becoming an essential lifeline for patients to consult with their physicians. It did not, however, replace the need for face-to-face visits. The law for payment parity is scheduled to expire on April 1, 2024. The Chapter signed onto a joint letter urging the Governor to make the telehealth payment parity law permanent for all physicians.
  

• Repeal of Prescriber Prevails in the Budget
  The Governor's budget includes a proposal that will repeal of the authority of physicians and other qualified prescribers to make a final determination regarding medication prescribed to individuals covered under Medicaid Fee-for-Service and Medicaid Managed Care, commonly referred to as “prescriber prevails.”  The Chapter signed on to a joint letter opposing the advancement of this proposal.
  

The New York State legislature has recently passed legislation that promises to bring about significant changes in liability regulations. While the bill's intentions are commendable, concerns have been raised by the medical community regarding its potential impact on the healthcare system.

The approved legislation, although well-intended, poses certain challenges that need to be carefully evaluated. One of the primary concerns raised by the medical community is the potential increase in costs, which may prove to be unsustainable in the long run. Physicians and smaller healthcare facilities, in particular, could face financial difficulties in sustaining their operations under these new regulations.

It is crucial to strike a balance that maintains access to quality healthcare while mitigating the financial burden on healthcare providers. This requires an in-depth analysis of the legislation's implications and the identification of potential solutions that address the concerns of all stakeholders involved.

As the approved legislation broadens liability in the healthcare sector, it is imperative to carefully consider its impact on the industry. Ensuring access to quality healthcare remains paramount while finding viable solutions to address the financial challenges faced by healthcare providers. The ongoing dialogue between policymakers, medical professionals, and other stakeholders is crucial in achieving this delicate balance.

Learn more about the legislation and its implications.

The incorporation of Artificial Intelligence (AI) in the healthcare industry has been a hot topic in recent years. With advancements in technology and the increasing availability of data, AI has the potential to greatly improve patient care and outcomes. However, as with any new technology, some concerns and challenges need to be addressed.

In this insightful article by The Doctors Company and TDC Group, they delve into the past, present, and future of AI in healthcare. They aim to provide valuable insights for healthcare providers on how to navigate this rapidly evolving landscape.

The Potential of AI in Healthcare:

AI has shown great promise in areas such as diagnosis and treatment planning. Through machine learning algorithms and predictive analytics, AI has the ability to augment the expertise of healthcare professionals, leading to more accurate and efficient care.

Addressing Concerns and Challenges:

While the potential benefits of AI in healthcare are vast, healthcare providers must exercise caution and diligence. The article emphasizes the importance of carefully integrating AI into medical practices and ensuring that ethical considerations and patient privacy are prioritized.

As the healthcare industry continues to embrace technological advancements, AI holds significant promise for improving patient care and outcomes. However, healthcare providers must navigate this evolving landscape with caution and diligence. The article by The Doctors Company and TDC Group serves as a valuable resource, offering insights and guidance for healthcare providers looking to incorporate AI into their practices.

To learn more about the intersection of AI and healthcare, read the full article by The Doctors Company and TDC Group.

For more information regarding ACS State Affairs Policy Priorities in your state, please contact Catherine Hendricks, State Affairs Manager, at chendricks@facs.org.

STATE AFFAIRS WORKGROUP

Arnold Baskies (NJ); Ali Kasraeian (FL); Kevin Koo (MN); and Kelly Swords (CA). The Workgroup will play a critical role in identifying state advocacy priorities, setting new policy objectives, and evaluating state advocacy grant applications among other duties.

 ACS STATE AFFAIRS PRIORITY ISSUES

• Trauma System Funding & Development
• Cancer Prevention, Screening, and Testing
• Insurance & Administrative Burden
• Professional Liability
• Criminalization of Physician Care
• Access to Surgical Care
• Health Equity

IN THE NEWS

10 Most Frequent Malpractice Allegations
Beckers provided the most common reasons physicians face professional liability allegations, according to Medscape’s 2023 “Physicians and Malpractice Report.”

1.     Failure to diagnose or a delay in diagnosis: 35% 
2.     Complications from treatment or surgery: 27% 
3.     Failure to treat or delayed treatment: 22% 
4.     Poor outcome or disease progression: 20% 
5.     Wrongful death: 15% 
6.     Patient suffered an abnormal injury: 10% 
7.     Errors in medication administration: 3% 
8.     Improperly obtained or lack of informed consent: 3% 
9.     Failure to follow safety procedures: 2% 
10.  Poor documentation of patient instruction and education: 2%

LEGISLATIVE TRACKING

To view a complete list of bills ACS State Affairs is tracking, visit our online State Legislative Tracker.

NEW YORK

A 8117 – Licensure

Introduced by Assemblymember Michaelle Solages (D), A 8117 provides for a $2,000 fine and license suspension if they fail to disclose their probationary status; the cause of the probation; the length of the probation and the end date; any practice restrictions placed on the licensee; and the address and telephone number of the licensee’s state board. The bill was introduced and referred to the Assembly Higher Education Committee.

Last year, the New York state legislature passed a bill to expand the types of damages awardable in wrongful death actions which would result in a dramatic increase in professional liability insurance premiums. Although the bill was vetoed by Governor Kathy Hochul, new versions of the bill, A. 6698 and S. 6636, were introduced without adequately addressing the concerns physicians raised about the previous legislation. If signed into law, these bills would increase professional liability insurance premiums by nearly 40%. 

We believe this legislation may have unintended consequences that could impact patient care, medical practitioners, and the overall quality of our healthcare system.

The New York Chapter of the American College of Surgeons is working with the Medical Society of the State of New York and other physician organizations, to ensure legal remedies for grieving families.

To make a significant impact, we are participating in a series of coordinated contacts to the Governor's office on October 4th and October 27th. 

• Call the Governor 's Office: 518-474-8390, press option 1 to voice your concerns.
  
  
• If you are unable to call, we've created an email message for you to modify and send to the Governor.

Resources:

• NY Chapter ACS Fact Sheet
• MSSNY Talking Points

Members of the ACS are invited to attend the in-person only Annual Business Meeting of Members on Wednesday, October 25, at Clinical Congress in Boston, Massachusetts.

Activities will include reports from College leadership, presentation of several awards, and remarks from the newly installed President-Elect. 

The Office of Professional Medical Conduct (OPMC) has oversight of complaints about physicians, physician assistants and specialist assistants and monitors practitioners who are subject to orders of the State Board for Professional Medical Conduct. 

Some physicians have reported being contacted by scammers. 

These individuals pretend they are from the DOH, identify a threat to their professional license such as a suspension and then place pressure to act immediately to resolve the threat with monetary compensation.

Proceed with extreme caution. Here are some suggestions from MSSNY:

1. DOH never asks for credit card payment over the telephone or a wire transfer from a retail establishment such as Western Union.
   
   
2. Please secure all personal and financial information in response to unexpected requests and reach out to someone you trust to discuss further.
   
   
3. A legitimate contact from DOH will include contact information so you can respond to phone calls or letters; contact information for the DOH; a complete return mailing address; a specific explanation for why it was sent and an explanation of your rights.
   
   
4. Contact information for the Office of Professional Medical Conduct can be located on the DOH website at health.ny.gov/professionals/doctors/conduct/contact.htm .
   
   
5. If you have been contacted by a spammer, please report it to local law enforcement or the Federal Trade Commission.

(shared from MSSNY Pulse )

Federal IDR Initiation Fee of $150 Proposed for 2024
This week, the Departments of Health and Human Services (HHS), Labor, and the Treasury proposed a rule setting forth the fee for the federal Independent Dispute Resolution (IDR) process at $150 per party for CY 2024 – compared to $50 in CY 2022, and a proposed level of $350 in CY 2023, which was the subject of a District Court order.

Congressional Hearing Puts Spotlight on Flawed Federal IDR Implementation
This week, the US House of Representatives’ Ways and Means Committee held a widely attended hearing on the Implementation of the No Surprises Act.  Both Republican and Democratic Members emphasized the law must be implemented as Congress intended, and expressed dismay over challenges associated with implementation, and unintended consequences on patient costs and access to care

The Centers for Medicare & Medicaid Services (CMS) released proposed rules for 2024 that could have implications for surgeon payment, inpatient versus outpatient procedures and coding, and more.

See how the ACS responded.