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Vol. 9, No. 3 · May 2005 · Editor: Martha L. Golar, Esq.
· JALBCA’S March Program on the Medicare Modernization Act · Recent News Articles · Kingsbrook Jewish Medical Center -- JALBCA April Program · BCERF Regional Cancer and Environment Forum · JALBCA and City Bar Fund's Cancer Advocacy Project · Calendar of Events
JALBCA’S March Program on the Medicare Modernization Act On March 1, 2005, JALBCA presented a program focusing on legislative policy as it pertains to oncology and health issues. The featured speaker was Joseph S. Bailes, M.D., Past President of the American Society of Clinical Oncology (ASCO), a leading oncology organization with approximately 23,000 members. Dr. Bailes has worked extensively with government policy makers, including legislators and government agencies such as the National Institutes of Health (NIH) and the National Cancer Institute (NCI), as well as the Food and Drug Administration (FDA). Dr. Bailes described the health policy landscape as it pertains to breast cancer, as largely colored by Medicare policy. As the largest provider of oncology-related healthcare services, the reimbursement and coverage policies set by Medicare have tremendous impact on the entire healthcare industry. Private carriers often adopt Medicare policies, particularly concerning coverage and payment. Therefore, the standards set by the Federal Center for Medicare Services (CMS), which is under the auspices of the Department of Health and Human Services, has a rippling effect on health policy. Consequently, the Medicare Modernization Act (MMA) has had a profound effect on the delivery of cancer-related services and will essentially cause a restructuring of some freestanding cancer centers, according to Dr. Bailes. One of the major factors both in the past and going forward, is how Medicare pays for actual chemotherapy. The average wholesale price (AWP) was traditionally the benchmark by which individual oncologists were paid for chemotherapy. The oncologist was not paid for the cognitive part of oncology care, meaning all the “thinking” that goes into the doctor-patient visit and additional contacts to support the patient through chemotherapy. In essence, Medicare traditionally paid for the “activity” part of oncology care, rather than all of the other elements involved in the care of the patient. Under recent developments, including those pursuant to the MMA, oncologists are being paid for the cost of the drugs, as opposed to the more generous average wholesale price, and they are supposedly being paid for the cognitive portion of care. However, Dr. Bailes indicated that some insurance carriers are taking advantage of paying the doctor the lower rate for chemotherapy and, at the same time, not paying them for the cognitive aspects of treatment. By way of history, Medicare found it easier to pay for pharmacological treatments rather than the other aspects of care. As for the physicians, receiving payment based on the average wholesale price created enough of a profit margin to pay for patient care not subject to traditional coverage. Reimbursement was on a “resource-based” model, taking into account what tangible treatments were provided to patients. In the mid 1990’s, with the advent of supportive care drugs, chemotherapy treatment became more commonplace in the outpatient setting. This took chemotherapy out of the hospital and into the private offices. However, the regulatory scheme concerning physician reimbursement did not change, as it continued to reward pharmaceutical interventions, as opposed to all of the other aspects of care. Compounding the problem, chemotherapy drugs administered orally were typically not covered. Once MMA was passed (with an effective date of January 1, 2006), major adjustments were made, to render payments which realistically reflect the care provided. Part of the plan is to bring the Medicare costs of chemotherapy down to levels which reflect the cost of acquisition. Dr. Bailes cautioned that, according to Medicare estimates, the total reduction in payment for cancer services tied to the change in chemotherapy reimbursement will cause a drop in payment of approximately $200,000,000 between 2004 and 2005—hitting free-standing cancer centers the hardest. Since approximately 85% of Medicare beneficiaries receive cancer treatment in the outpatient setting, the changes under MMA will have tremendous impact. Dr. Bailes commented that the average oncology practice now consists of less than four oncologists—however, these smaller practices are unlikely to survive with the change in reimbursement under Medicare. In essence, adjusting payment to fit the reality of the marketplace (by reimbursing for chemotherapy more accurately) and at the same time, reimbursing for cognitive aspects of oncology care, will likely cause a net loss to outpatient cancer providers. Patients may end up traveling farther if there are fewer free-standing cancer centers; and there may be a shift of patients to outpatient hospital centers, from the private offices, if oncology costs are not covered realistically. The bottom line, according to Dr. Bailes, is that when MMA becomes effective January 1, 2006, reimbursement is expected to drop by approximately 25% to free-standing cancer centers—which is all tied to dropping the reimbursement rate for chemotherapy to reflect acquisition cost as opposed to the traditional “inflated” average wholesale price. The modest increase in reimbursement for cognitive services provided by the oncologist will apparently not compensate for the dramatic decrease in oncology reimbursement. Dr. Bailes thought that the pharmaceutical industry will still be committed to clinical trials and drug development, as the incentives still remain for those activities. There are approximately eighty “NCI-designated” comprehensive cancer centers in the country, ten of which are exempt from the prospective payment system under Medicare—including Memorial Sloan Kettering Cancer Center. Thus, most of the comprehensive cancer centers nationally will feel the anticipated impact from the change in Medicare reimbursement. RECENT NEWS ARTICLES Preserving Fertility in Breast Cancer Patients A report in the April 11 issue of the Journal of Clinical Oncology described a combination therapy of a hormone used for in vitro fertilization plus chemotherapy that may help women freeze more eggs before undergoing chemotherapy, without promoting the growth of breast cancer. The combination consisted of Tamoxifen and Letrozole to stimulate ovulation without promoting cancer growth. Cautious oncologists indicate that the numbers in the study were small and the follow-up brief, so that it is not possible to say anything definitive about the safety of the procedure. Dr. Kutluk Oktay conducted the study. Dr. Oktay is director of the fertility preservation program for Reproductive Medicine and Infertility at New York Presbyterian Hospital/Weill Cornell Medical Center in NYC. NY Federal Courts Reject Charity Care Claims A Federal court in the Southern District (SDNY), has rejected federal and state law claims asserted against New York-Presbyterian Hospital (involving three consolidated claims) alleging that it violated its obligations to provide medical care to poor and uninsured patients at reduced rates. This finding is consistent with the decisions of other Federal courts which have reviewed similar claims. Federal law does not allow uninsured individuals to sue to force non-profit hospitals to provide a certain amount of reduced-cost or “charity care.” Federal courts, however, have often refused to exercise jurisdiction over state law claims in similar suits, and have dismissed these claims without prejudice to refiling in state court. The SDNY court rejected the claims based on the hospital’s exemption under Section 501(c)(3) of the Internal Revenue Code and rejected the Federal law claims under the Emergency Medical Treatment and Labor Act and Fair Debt Collection Practices Act. Claims arising under NY’s General Business Law, prohibiting deceptive practices, and claims for unjust enrichment and constructive fraud, were also dismissed. (See Kolari v. New York-Presbyterian Hospital, S.D.N.Y., No. 04 Civ. 5506, 3/29/05.) Kingsbrook Jewish Medical Center -- JALBCA April Program On April 8, 2005, JALBCA, in conjunction with the Kingsbrook Jewish Medical Center (KJMC), presented a program entitled “Breast Cancer Update: Are You At Increased Risk?” The program focused on the women of central Brooklyn, and covered concerns about the risk among African American women and women of Ashkenazi Jewish heritage (with possible genetic predisposition). On behalf of JALBCA, Hon. William Thompson and Hon. Ellen Spodek addressed the importance of bringing the message of early detection to all women with particular emphasis on African American women and women of Ashkenazi ancestry with possible genetic risk factors. Judge Thompson explained the purpose behind the formation of JALBCA, and its mission, and Judge Spodek provided additional personal anecdotes to emphasize the need for women to obtain annual mammograms. She urged the audience not to be dissuaded by fear and suggested not going alone for a mammogram. Past-President Barbara Ryan moderated the program and she advised the audience of written materials, which were distributed by JALBCA at the event, regarding rights of New Yorkers, under the external appeals statute, to challenge adverse insurance determinations based on medical necessity.  Left to right: Barbara Ryan, Esq., Hon. William Thompson, Hon. Ellen Spodek The program opened with welcoming remarks by KJMC’s Director of Government and Community Relations, Harry Schiffman, followed by presentations by Ferdinand Zizi, President of the Brooklyn Research Foundation for Minority Health, and Peter Scaminaci, Radiology Administrator at KJMC. Mr. Scaminaci discussed KJMC’s efforts with The Brooklyn Breast Health Partnership and the services available at the medical center, including the availability of digital mammography. Mr. Zizi described his organization’s programs in conjunction with KJMC, which include multi-bilingual health educators. He emphasized that all women are qualified for their free breast cancer screening programs and that the organization has assisted many immigrants, regardless of their legal status. The panel also noted the work of Sharsheret, a not-for-profit organization located in Teaneck, New Jersey, which links young Jewish women in their fight against cancer. Sharsheret reports that the lifetime risk for breast cancer among women carrying a BRCA 1 or BRCA 2 mutation may be as high as 50-80%, and the proportion of hereditary breast cancer is higher among Jewish women of Ashkenazi descent. Although not all carriers of the genetic mutations will develop breast cancer, it is noteworthy that one in forty (1:40) individuals (male and female) of Ashkenazi descent reportedly carries an altered BRCA 1 or BRCA 2 gene, as compared to one in three hundred forty-five (1:345) in the general population. For more information visit Sharsheret’s web site at www.sharsheret.org. According to the American Cancer Society (ACS), about 5-10% of breast cancer cases are hereditary as a result of genetic mutations. The most common known gene changes are those of the BRCA1 and BRCA2 genes. A study published in 1997 reported that Ashkenazi Jewish women who carried one of three “BRCA” mutations showed a significant risk of developing breast cancer by age 70. ACS also reports that breast cancer is the most common cancer among African American women—although the incidence rate of breast cancer is about 17% lower in that population, as compared to white women. However, ACS reports that breast cancer death rates for African American women have risen sharply. As of the year 2000, African American women had a 32% higher death rate from breast cancer, as compared to white women. Also of concern is the increase in the incidence of breast cancer in African American women under the age of 40. For more information, visit the ACS website at www.cancer.org. BCERF Regional Cancer and Environment Forum Cornell University’s program on Breast Cancer and Environmental Risk Factors (BCERF) is holding a forum on Friday, June 10, 2005, from 10 am to 3 pm. The forum will be held at the Cornell Cooperative Extension Dutchess County Farm and Home Center, 2715 Route 44, Millbrook, NY. The all-day program will focus on the following topics: emerging water contaminants in the United States and NYS, NYS volatile organic compounds exposure registry—health outcome surveillance for exposed populations, local issues, and community environmental needs assessment for obesity prevention and breast cancer risk reduction in a rural area. For further information or to RSVP, contact Carmi Orenstein at (607) 255-1185 or by e-mail: cso1@cornell.edu. JALBCA and City Bar Fund's Cancer Advocacy Project During the last year, JALBCA provided a grant to the Cancer Advocacy Project (CAP) of the Association of the Bar of the City of New York Fund, Inc., which focuses on three areas: employment discrimination law, insurance law, and access to public benefits. In addition, the project provides volunteer attorneys who assist with simple wills, stand-by guardianships, powers of attorney and other documents which help cancer patients plan for their future needs. In its progress report, CAP advised JALBCA that during the period December 2004 through March 2005, it accomplished the following: reached 317 cancer survivors directly providing education and information on available assistance, provided education and training to over 167 healthcare advocates and providers on financial and other resources available to cancer survivors, provided 78 clients with direct legal assistance on insurance and healthcare related issues, and assisted 21 clients with employment discrimination issues. Calendar of Events SHARE (SELF-HELP FOR WOMEN WITH BREAST OR OVARIAN CANCER) 1501 Broadway, Suite 704A NY, NY 10036 www.sharecancersupport.org 212.719.1204 MEMORIAL SLOAN-KETTERING CANCER CENTER Post-Treatment Resource Program Educational Forums 1275 York Avenue, Room M107 NY, NY 10021 www.mskcc.org 212.717.3527
ADELPHI NY STATEWIDE BREAST CANCER Hotline & Support Program Adelphi University School of Social Work Garden City, NY 11530 www.adelphi.edu/nysbreastcancer/index.html 800.877.8077
JALBCA does not endorse the content or efficacy of any workshops or programs listed in the Calendar of Events; listings are for informational purposes only, so that our readership is aware of current offerings. |
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