UTTAAHHPHYSICIAAPRILN | MAY 2021

2021 LEGISLATIVE SESSION

REPORTpage 6

PHYSICIAN ASSISTANT WHEN IT COMES TO  HEALTHCARE PROVIDER WELLNESS BILLS - IN A NUTSHELL INVESTING, IS BIGGER, BETTER? IN THE TIME OF COVID & BEYOND page 18 page 20 page 24 utahmed.org Trust the specialists. Helping physicians reach their financial goals since 1993.

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Editorial Board Entrust your financial goals Wallace Akerley, III, MD to an organization dedicated Brian J. Moench, MD Karen M. Radley, MD to physicians. At UMAFS, Daniel R. Faber, MD Carissa S. Monroy, MD we understand the unique circumstances of school loans, Staff Chief Executive Officer insurance needs, career Michelle S. McOmber, MBA, CAE changes, family and retirement Features Managing Editor & goals. Take your financial V.P. of Communications Mark Fotheringham needs to the specialists. 6 2021 Legislative Session Report Editorial Office Call us for a no-cost financial  By Mark Brinton, JD – UMA General Counsel and Director of Government Affairs and Utah Medical Association analysis today. Michelle S. McOmber, MBA, CAE – UMA CEO 310 East 4500 South, Suite 500 , Utah 84107-4250 Phone: (801) 747–3500 Fax: (801) 747–3501 18 Physician Assistant Bills - in a Nutshell E-mail: [email protected] By UMA CEO Michelle S. McOmber, MBA CAE Publisher Mills Publishing, Inc. 20 When it Comes to Investing, is Bigger, Better? President By Ryan Bladen, CFP® Vice President, UMAFS Dan Miller Office Administrator Cynthia Bell Snow 24 Healthcare Provider Wellness in the Time of COVID and Beyond Art Director Jackie Medina By Lawrence M. Lewis, MD, Christopher R. Carpenter, MD, Randall Jotte, MD & Evan Schwarz, MD Graphic Design Ken Magleby, Patrick Witmer Sales Staff Paula Bell, Dan Miller, Paul Nicholas

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Cover Photo Credit: Photo licensed by Ingram Image. Design by Patrick Witmer PRESIDENT’S MESSAGE

and yet interfaces with all of our subspecialty associations. It makes financial sense to invest in UMA and AMA, in addition to your subspecialty societies. Your dues are an investment in your reputation as a physician, your revenue stream, and representation in legislative and budgetary matters. We need you, and you need UMA.

The COVID-19 pandemic has shown improvement in case numbers and outcomes, and we are grateful for your PRESIDENT’S support of the community and patients. UMA is concerned to see that these positive trends continue. As the mask MESSAGE mandate ends (on April 10) courtesy of BY SHARON R.M. RICHENS, MD, UMA PRESIDENT our conservative state legislature, we are also concerned with vaccine hesitancy. Governor Cox has done a terrific job in hank you for all you’ve done to your elected officials have local offices supporting the effort to vaccinate the support the house of medicine easily accessible to you, their staffers state. Please pitch in by encouraging T and one another throughout in those offices are knowledgeable patients to be vaccinated and offering to this tough legislative session. We in many of the healthcare issues, answer any questions if they haven’t had owe a great debt of gratitude to and they are usually willing to meet a chance to get their vaccination(s) yet. In Michelle McOmber and our staff, who with you in their office. You need not our office, we have a patient handout with have represented us well. Medicine travel to Washington D.C. to “make the phone numbers and websites for local is under attack from many angles, a difference” and it really does make appointments with both the hospital and including scope of practice battles, a difference when you show up. This health department, as well as eligibility malpractice, regulatory burdens and grass roots lobbying will become criteria, which is now all Utahns over 16 reimbursement. Your participation in increasingly important as the new years of age. the lobbying and legislative process Biden administration seeks to mold helps keep medicine healthy and health care policy throughout 2021. (It’s There is a silver lining in a pandemic year. vibrant in Utah. Please keep in touch true, the work is never done… and the Patients are reading more about health with your elected leaders at both the world is run by those who show up.) care and asking very good questions. state and federal level, as healthcare Your patience with patients, and your and our communities continue to Please keep up with your membership. encouragement of their curiosity with evolve. If you are interested in a greater Encourage your friends and colleagues referral to reputable sources of evidence- level of participation, the legislative to do the same. We have a considerable based medicine, are wonderful ways to committee and leadership positions flux in membership and rely upon practice medicine and improve public are wonderful opportunities. Your membership and resultant dues to health. Physicians and nurses have individual communications with maintain a presence in government, regained a bit of their patina with the your own local elected officials and and to provide services to members. The realization that we go where needed, committee leaders helps us collectively UMA has a valuable gestalt that can’t be when needed, regardless of risk. too. For federal issues, remember that matched by subspecialty associations, Regardless of your specialty or practice

4 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. PRESIDENT’S MESSAGE

setting, please teach by example, and drive from his Provo college campus to elected officials, and to the press with encourage the autodidacts among our St. George to make that happen. Healthy editorials, throughout the legislative patients. When they look unsure, tell college students are finally eligible to be process, and through the winter them what you would do if they were vaccinated (hooray! and thank you Gov. COVID-19 surge and current groundswell family, and what you yourself are doing. Cox!) This will make it safer for them to toward vaccination and herd immunity. visit with grandparents and get back to We’re in the 9th inning—may we finish Besides your patients, please look to, graduation parties and weddings. safe and strong(er). and open up to, your family and friends. The last member of our family will be Again, thank you, each and every one of Sharon R.M. Richens, MD vaccinated Thursday, but he will have to you, for reaching out to UMA, to your UMA President

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2021 LEGISLATIVE SESSION REPORT BY MARK BRINTON, JD – UMA GENERAL COUNSEL AND DIRECTOR OF GOVERNMENT AFFAIRS AND MICHELLE S. MCOMBER, MBA, CAE – UMA CEO

he past legislative year—and (appointed to take Dan Hemmert’s do regardless of training and education. the 2021 legislative session in seat after Gov. Cox selected Dan to Your UMA legislative team strives to T particular—was significantly lead the Governor’s Office of Economic inform and influence the legislators, but shaped by the Covid-19 pandemic, which Development). , MD your voice to your legislators (identify in turn, was the focus of much of the (retired Ob-Gyn, Ogden) was appointed to yourself as a constituent and include your past legislative year. Six special sessions replace Rep. LaWanna Shurtliff who passed home address) is often critical to balance were held in the legislative cycle. And away unexpectedly in December. the input they receive on these issues. an extensive series of legislative interim meetings convened over the prior nine A couple of new physician spouses Legislative actions often come up with months, with most legislators and were elected to the legislature: Rep. very little notice. A vote may be scheduled essentially all witnesses, lobbyists, and is married to James for the next day, so physicians need to members of the public participating via Bennion, MD (occupational medicine, respond promptly to these calls. When electronic meeting connections. UMA SLC VAMC) and Rep. is physicians respond to a Call to Action, CEO Michelle McOmber, MBA, CAE, married to Cynthia Owens, MD (peds, legislators know that physicians are and UMA VP of Communications Mark SLC). Physician spouses continuing in concerned and watching the actions of Fotheringham already reported on the service are Sen. (Provo) and their own representative or senator. You myriad issues the UMA worked on before Rep. Jennifer Dailey-Provost (Salt Lake as a constituent can be very powerful in and in preparation for the session in City). Many other legislators are family your influence. prior issues of the Utah Physician. members and other friends of medicine. Your message can be even more powerful In the end, the Legislature passed 503 Aside from COVID and lobbying differently if you get to know your legislators and bills, fewer than prior recent sessions, but this session, the session was slightly support them in their elections. You can it included many bills just as significant unusual in the number of bills UMA fought develop a good relationship by serving to medicine and public health as previous against and called on you to oppose. UMA as county or state party delegates. It’s years, if not more so. issued Calls to Action to enlist your help important to help good individuals run for with these very difficult and very hard- office by contributing money, sponsoring The 2021 legislature welcomed five new fought bills. Legislators receive thousands fundraising events at your home, or talking senators and 15 new representatives of emails from many constituencies with delegates, friends, and neighbors about elected last November or appointed asking them to vote for or against certain supporting these candidates. We greatly since the election. UMA physicians and bills. Many of these emails are on issues appreciate those physicians who take the Representatives , of importance to physicians and patients time to respond and contact their legislators. MD, (anesthesiologist, Draper), Stewart but are from the other side of the issue. Barlow, MD (a UMA past president, ENT, This is especially true when mid-level or We sincerely thank all of you who do run Fruit Heights) and Ray Ward, MD (family unlicensed providers want to expand their for office, contribute money to UMPAC, practice, Bountiful) continued their service scope of practice. The Utah Legislature and participate in the political process. in the legislature. Michael Kennedy, MD, is very much for de-regulation and The political process takes money and JD, (family practice, Alpine/Lindon) re- “competency,” although that is not defined, contributing to UMPAC helps us help joined the legislature as a senator after so this includes wanting to do away with those candidates who are friendly to the having served as a representative 2013-2018 licensing or expanding what everyone can House of Medicine.

6 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

The bills that were particularly in the West, which allow “full practice” COVID-19 ICU utilization is under 15%; important to physicians and patients are where Utah only allowed “reduced and 3) at least 1,633,000 prime doses of a discussed below. practice,” according to their national COVID-19 vaccine have been allocated to the organization. Their bill as introduced, state. One exception allows public health MIDLEVEL PRACTITIONER however, would have gone far beyond safety measures in K-12 schools to continue SCOPE OF PRACTICE BILLS the practice parameters of some “full until July 1, 2021. Also, the statewide mask practice” states, such as Colorado and mandate is terminated April 10, 2021, SB 27 Physician Assistant Act Nebraska. After extensive negotiations though local health departments (with Amendments (Sen. Curtis Bramble and with the nurse practitioners and approval of the county commissions) may Rep. James Dunnigan); and changes made to the bill, UMA agreed continue local mask mandates and a state SB 28 Physician Assistant Mental Health to drop its opposition to the revised bill. mask mandate for gatherings of over 50 Practice Amendments (Sen. Curtis The statute before passage of this bill people (where 6-foot distancing is not Bramble and Rep. James Dunnigan) required an NP to have a consultation possible) may continue until the public UMA has worked cooperatively with the and referral plan with an experienced health orders are terminated. With a special physician assistant leaders since their NP or a physician for one year if they effective date, the bill went into effect on license category was created by UMA over went into solo practice right out of school March 26. UMA opposed the bill, but the 50 years ago. In fact, the physician assistant or if they owned and operated a pain Department of Health and counties worked program in Utah is the oldest continuously clinic. The final bill that passed this year with the sponsor to put in precautions they accredited program in the western U.S. removes the restriction on pain clinics wanted so while UMA remained concerned The Physician Assistant Practice Act has and requires, before they can prescribe about significant public health decisions been amended and updated in five of the Schedule II controlled substances, that being based on policy rather than science past seven years by the physician assistants nurse practitioners who are in their first or medical considerations, the whole working with UMA. This year the physician year of practice will have to 1) receive legislature approved of the process. PASSED assistants decided to bring forward two board certification from a nationally bills, SB 27, and SB 28, that were initially recognized organization, 2) complete at SB 195 Emergency Response drafted with little regard for the input of least 30 hours of instruction in advanced Amendments (Sen. and UMA and would have radically changed the pharmacology, 3) demonstrate at least Rep. Val Peterson) nature of their practice and have not been seven hours of continuing education on This bill limits the powers of the adopted by any other state. UMA fought prescribing opioids, and 4) participate in Department of Health and local health against the original drafts of the bills and and document a prescribing mentorship departments to issue public health managed to stop them until the PAs agreed with a physician or experienced nurse emergency declarations and orders to negotiate. UMA negotiated with the practitioner for 1000 hours of clinical in several ways and restricts the physician assistants and the bill sponsor experience. PASSED governor and others in their ability to very long and very hard to bring these impose public health restrictions for bills to a place that could be acceptable to COVID-19 BILLS an extended period. The length of time the physicians of the state and provide that an order can remain in place is appropriate, safe care for the patients of HB 294 Pandemic Emergency Powers restricted, orders cannot be extended Utah. Please see the separate article in this Amendments (Rep. and Sen. by being reissued, and the legislature or issue of the Utah Physician (page 18) for the ) a county governing body can terminate essential highlights of the bills. PASSED Although the Department of Health’s public public health orders under a declared health emergency may remain in effect public health emergency. The bill also HB 287 Nurse Practice Act Amendments to receive federal money and distribute provides a process for the Legislature (Rep. Douglas Welton and Sen. Curtis vaccines, with a few exceptions this bill to limit executive emergency powers Bramble) terminates the COVID-19 emergency during a long-term state emergency. Despite (or because of?) our negotiations powers and any COVID-19 public health It prohibits a government restriction with the nurse practitioners the year order under the public health emergencies on the practice of religion unless the before last, they ran this bill to remove declared by the Department of Health and burden is the least restrictive means the practice restrictions they had agreed local health departments once 1) the state’s available to accomplish a compelling to earlier. They pointed to the states COVID case rate is under 191 per 100,000 government interest, among many other surrounding Utah and most of the states people; 2) the statewide 7-day average provisions. UMA opposed the original

utahmed.org APRIL | MAY 2021 7 bill. Many changes were made to the to the bill because of the individual HB 308 COVID-19 Vaccine bill as a compromise between public and public health implications of such Amendments (Rep. health and politics/policy. After much a law. The bill was never referred to a and Sen. Daniel McCay) negotiation and agreement between committee; though it was considered for This bill prohibits a governmental entity different branches of government, the inclusion in other pandemic related bills, from requiring that an individual receive bill PASSED parts of it in concept were added to SB195. a vaccine for COVID-19 as a condition of It was never moved forward. FAILED employment or participation in an activity HB 233 Education Immunization of a governmental entity, including Modifications (Rep. Mark Strong and SB 107 In-person Instruction outside or extracurricular activities or Sen. Michael Kennedy, MD) Prioritization (Sen. and attendance at events the entity sponsors. As introduced, this bill prohibited Rep. Paul Ray) The bill does not allow the governor state colleges and universities from This controversial bill finally passed to waive this prohibition through the requiring a vaccination as a condition after a joint second conference Emergency Management Act. The bill of enrollment or attendance unless committee report of the House will be repealed July 2024 because the the institution also allows medical and and Senate recommended the 7th sponsor believes that the COVID vaccines personal exemptions. This is what is Substitute with an amendment. will have standard FDA authorization already required in K-12 educational The bill requires public and charter by then, rather than the emergency institutions. The bill also prohibited schools, beginning March 22, 2021, use authorization they have now. UMA public and charter schools offering to offer in-person instruction and, explained its strong concerns to the bill remote and in-person learning from not if 2% (schools over 1500 students) or sponsor, who subsequently added these allowing a student to attend in person 30 students (schools under 1500) test exceptions to the vaccine requirement based on vaccine status. After the bill positive for COVID-19, to initiate a ban: the vaccine may be required for was held in committee because of strong test to stay program with supplies and helping with the COVID-19 vaccine or concerns voiced by UMA and others, resources from the Department of for an employee acting in a public health the sponsor amended the bill to allow Health. The test to stay program is to or medical setting and who is required state and local health departments to identify cases of COVID-19 and allow to receive vaccinations to perform their override the bill’s prohibitions to contain students that test negative to continue job. UMA testified against and remained the spread of an infectious disease in-person. In-person instruction can opposed to the bill. PASSED and to exempt institutions of higher be suspended only if the governor, the education from these restrictions for president of the Senate, the speaker UMA SUPPORTED BILLS students “studying in a medical setting.” of the House of Representatives, and The sponsor reported the Utah System the state superintendent of public SB 198 Balance Billing Amendments (Sen. of Higher Education supported his bill instruction jointly agree with the and Rep. ) after the changes. UMA continued to school that the risks of in-person In UMA’s continuing effort to prevent be concerned about politics trumping instruction temporarily outweigh its the passage of bad balance billing health and science. PASSED value. Schools cannot test a student legislation, a bill was passed last year without the consent of the parent. (supported by UMA) requiring providers HB 184 Protection of Personal and Beginning with the fall 2021 semester, to report certain elements of their Religious Liberty (Rep. and the bill also requires the state’s colleges balance billing to the Utah Insurance Sen. Michael Kennedy, MD) and universities to offer at least 75% Department. Congress’s enactment This bill would have prohibited a health of the number of in-person courses on balance billing at the end of last care facility, even during a public health that they offered in 2019-2020 unless year changed the rules and made it not emergency, from preventing a patient enrollment in a school has gone down. meaningful or necessary to collect the from receiving a visit from at least one UMA strongly supports scientifically information. So, UMA worked with the family member (even extended family) or based public health decisions and sponsor to pass this bill to repeal the clergy member at a time and would have opposes decisions based on political reporting requirement. PASSED prohibited any government entity from considerations, so it opposed the taking an action that has the effect of not bill but because of the compromises HB 102 Contraception for Inmates allowing a religious organization to hold between the schools and the legislature (Rep. Jennifer Dailey-Provost and Sen. a service in a church. UMA was opposed the bill PASSED. )

8 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. This bill requires jails to provide SB 161 Mental Health Systems negotiating with the bill sponsor to inmates with the option of continuing Amendments (Sen. Todd Weiler and Rep. lower the nicotine limit allowed in his these medically prescribed methods of ) bill. The DOH agreed to change the rule contraception: an oral contraceptive, In addition to the provisions of SB 41 that proposal to 59 mg/mL to stop the bill. an injectable contraceptive, or an require health plans to provide coverage Because of that agreement, the sponsor intrauterine device (if the other methods parity for mental health services provided of the bill stopped the bill and it died cause the inmate adverse effects). The by telehealth, this bill requires health on the Board. UMA has been working cost is paid by the Department of Health. plans to reimburse these telehealth with many others for years to restrict UMA supported this bill to provide access services at a commercially reasonable the sale of e-cigarettes and liquid with to important medications and devices to rate that is negotiated. Supported by high-nicotine content because it is individuals. Unfortunately, to get the bill UMA, this bill started off providing powerfully addictive. In a Notice of through the legislature, the sponsor had payment parity for these services, but Change in Proposed Rule published to agree to make it a one-year program. this was adamantly opposed by the health March 15, DOH proposed to allow a UMA supports extension of the program insurers. So, UMA worked to have the nicotine concentration up to 59 mg/mL. on an on-going basis. PASSED reimbursement rates be commercially UMA has sent comments against the new reasonable and negotiated. The bill proposed rule and will testify against it. HB 117 Vaccine Reporting also prohibits DOPL from denying a For reference, the European Union only Requirements (Rep. Ray Ward, MD, healthcare provider’s license application allows 20 mg/mL of nicotine in their and Sen. Michael McKell) or renewal solely for participating e-cigarette products. FAILED As introduced, this bill would have in mental health or substance abuse required vaccine providers to register treatment. The bill requires payment SB 192 Medical Cannabis Act with the Utah Statewide Immunization of certain mental health and substance Amendments (Sen. Evan Vickers and Information System (USIIS) and report use treatment if the plan provides Rep. Francis Gibson) the vaccines they administer. It would behavioral health services. And finally, Among many other changes this bill also have allowed schools to provide the bill changes the assumptions in the makes in the state’s medical cannabis immunization records to USIIS. Despite legislative budget process to increase law, mainly for the convenience of the the public and individual health benefits beginning point for funding for Medicaid processing and for the Department of of this bill, there was so much opposition mental health services on an on-going Agriculture, the bill does several things to mandating records of immunizations basis. PASSED of interest to physicians. It requires that a whole series of changes were made the electronic verification system, to water down the bill and it still was SB 134 Tobacco Regulation which is the state’s system for tracking voted down in the Senate committee Amendments (Sen. Curtis Bramble medical cannabis recommendations and hearing. FAILED and Rep. Francis Gibson) dispensing, to communicate medical This bill would have made several cannabis dispensing information to the SB 41 Mental Health Access Amendments changes to the regulation of the sale of controlled substance database. This way, (Sen. Luz Escamilla and Rep. Stewart e-cigarette products. The Department of any prescriber treating a patient and Barlow, MD) Health (DOH) proposed a rule in January checking the CSD will be aware of all This bill requires health plans to to prohibit the sale of manufacturer controlled substances the patient may reimburse for medically necessary sealed e-cigarettes and liquids with over be taking, including medical cannabis. treatment of mental health conditions 36 mg/mL of nicotine after January 1, Revocation of a medical cannabis card provided through telehealth if the 2022. UMA helped push for these rules will also show up in the CSD. The bill treatment is covered through in-person to limit the nicotine these products. allows a qualified medical provider to services and it is appropriate to provide Because of that rule, tobacco/e- advertise that they are a QMP. The bill via telehealth. UMA participated in cigarette manufacturers pushed for also clarifies the information that a QMP drafting this bill and in putting in a bill to allow 75mg/mL of nicotine must provide if they intend that the appropriate parameters. UMA supported in manufacturer sealed e-cigarettes. pharmacy determine directions of use this bill to improve better reimbursement The sponsor of this bill did include and dosing guidelines to a patient instead for and access to mental health services. increasing fines for violation and raising of doing it themselves. UMA participated PASSED. Note: special effective date, this the tax on e-cigarettes, but it was not in drafting the language of this bill and bill went into effect March 26, 2021. enough. UMA opposed the bill and was pushed for the information from the

utahmed.org APRIL | MAY 2021 9 FEATURE

medical cannabis electronic system to be BILLS UMA OPPOSED, benzodiazepine that is written for longer included in the CSD. UMA supported the THEN WORKED TO CHANGE than 30 days. The bill requires a prescriber bill. PASSED OR DEFEAT who issues a high-risk prescription first to check the controlled substance SB 170 Consumer Protection for HB 231 Fetus Transport Restrictions database to see if the patient has any Cannabis Patients (Sen. Luz Escamilla (Rep. ) currently active high-risk prescriptions and Rep. Ray Ward, MD) As introduced, this bill would have made from other prescribers. If the patient Current law requires a physician to it a crime to transport or arrange for already has a high-risk prescription in take 4 hours of training to become a transport outside the state miscarried the database, the prescriber must contact qualified medical provider (QMP) to be or aborted fetal remains for any purpose all other prescribers who have issued the able to recommend medical cannabis to other than burial. UMA strongly opposed patient current high-risk prescriptions a patient. Among many other changes this proposal and contacted the sponsor and then document in the medical record this bill makes to the state’s medical to explain the important medical that contact and the reason “the patient cannabis program, it allows physicians purposes for which fetal remains may needs multiple high-risk prescriptions who have not taken the qualified medical need to be sent to another state, such as, from different practitioners.” The provider training to recommend medical for medical testing, analysis, evaluation, contacting and documenting must be cannabis to a few of their patients. They or research, and that current health done in a timely manner but may be after may recommend to no more than 15 of systems, labs, and insurance companies issuing the prescription. As originally their patients at any time. If they exceed frequently work across state lines for proposed, the bill would have made 15 patients at a time, they must become these purposes. The sponsor began to violation of its rules unprofessional a qualified medical provider. These respond to our concerns, and we tried conduct. UMA was successful in having providers are called “limited medical to work out a solution for both the that part removed. PASSED providers.” The bill also requires QMPs sponsor’s concerns and UMA concerns, to report to Department of Health the but ultimately the sponsor decided not to HB 202 Health Care Consumer fees they charge a patient for a medical push the bill forward during this session Protection Act (Rep. Norman Thurston cannabis recommendation. It requires because of UMA concerns. FAILED and Sen. Kirk Cullimore) the 3.5 hours of continuing education on This bill is the successor to a bill last year controlled substances that is required HB 15 Controlled Substance that UMA opposed for going too far and of all controlled substance prescribers Amendments (Rep. Ray Ward, MD and imposing an unreasonable burden on to include some training regarding Sen. Michael Kennedy, MD) physicians; the bill did not move forward medical cannabis. UMA negotiated This bill makes two changes to controlled last year. The version this year applies extensively with the sponsor and other substance prescribing. First, it eliminates to any individually licensed health stakeholders regarding the provisions the surgery exception to the 7-day limit care provider or any facility licensed of this bill to keep the program focused on prescriptions for Schedule II and to provide health care. It is narrower on responsible, true medical care for Schedule III opiates issued for acute than the bill proposed last year and patients, and ultimately was supportive conditions. Prescribers have been allowed more realistic. This year it includes the of the bill as whole. PASSED to issue prescriptions for up to 30 days language of knowingly and intentionally. for surgery if the patient needed it. In It prohibits a health care provider from HB 363 Medicaid Waiver for New making this change, the sponsor pointed knowingly or intentionally representing Mothers (Rep. Ray Ward, MD) out that second and subsequent 7-day to someone who has health insurance This bill would have directed the prescriptions can be issued if the initial that the provider is contracted with the Department of Health to apply for a 7-day supply was not enough. Also, the person’s insurer if the provider is not. A federal waiver to be able to provide 7-day limit continues to apply only to violation of this law can be enforced by Medicaid coverage for new mothers below acute conditions and not to complex or the Division of Consumer Protection in 200% of the federal poverty level for one chronic conditions documented in the court. There would be an investigation year postpartum. UMA supported the bill medical record. to protect from a patient-said, provider- because evidence indicates that this would said type of incident. The burden of save money and provide better outcomes The second change made by this bill proof would require more than supposed for these mothers. The bill was never applies to a “high risk prescription” which conversation. UMA did not take a referred out of Rules Committee. FAILED is defined a prescription for an opiate or position on the bill this year. PASSED Continued on page 12…

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HB 253 Abortion Amendments (Rep. HB 92 Medical Practice Amendments schedule V can be considered by a Steve Christiansen and Sen. Michael (Rep. and Sen. ) committee made up of prescribing Kennedy, MD) This bill would have prohibited physicians stakeholders and pharmacists, and This bill would have made several from performing “a sex characteristic- unfortunately, the grocery chains that changes to tighten the state’s abortion altering procedure or medically own pharmacies and a senior physician law. It would have imposed a $50,000 unnecessary puberty inhibition procedure” from the Department of Health. If fine per occurrence on a physician who on a patient younger than 18. These a pharmacist gives medication to a violated a provision of the section of procedures were defined to include any sex- patient without a prescriber, they the law requiring informed consent, change surgery as well as administering or will have to report back to a primary information module viewing, 72-hour supplying drugs that would block puberty care physician. At UMA’s request, mandatory wait, etc. It would have or contribute to a potential sex change. This those legislative recommendations changed the content of the information was a highly controversial bill that attracted are to include “statutory changes to module that women must watch before strong opinions on both sides. Under improve patient access to prescribed getting an abortion to include a detailed, current standards of care, no surgery below drugs in the state,” which will include step-by-step description of each step the waist is performed before a patient a discussion of expanded physician of each type of abortion procedure reaches 18 and the only surgery performed dispensing. Recommendations on the used in current medical practice, with on an individual between 16 and 18, is medications within both the dispensing medically accurate visual images of what breast reduction surgery. The bill would of a pharmacist without a prescriber and is happening to the unborn child at each have imposed significant non-medical the dispensing by physicians without step of each type of abortion procedure, constraints on the ability to practice a pharmacist will be given to DOPL. and a high-resolution, 3-dimensional medicine in the best interest of patients With these changes, UMA removed its video of an unborn child at 6, 8, 10, 12, and would have been deemed a violation opposition. PASSED 16 and 20 weeks gestation with audio of unprofessional conduct by physicians, so the heartbeat. It would have required a UMA was opposed to the bill. It was voted HB 190 Interstate Compact on Curing woman seeking an abortion to sign an down in House committee. FAILED Diseases (Rep. Norman Thurston and oath under penalty of perjury that she has Sen. Ann Milner) viewed the entire information module. HB 178 Pharmacy Practice This bill would have enacted an interstate It would have required any facility Modifications (Rep. Norman Thurston compact (not yet adopted by any other that treats an abortion complication and Sen. Curtis Bramble) state) that would have offered prize regardless of the reason for the abortion This bill was introduced to greatly expand money for curing diseases, to be financed or medical termination, to report to the the ability of pharmacists to dispense from the money saved by states in the Department of Health the number of without physician prescribing by directly compact from the disease cure. While complications treated, by complication allowing pharmacists to “prescribe” recognized the initial attraction of type. UMA opposed the bill. It was not within very wide parameters. The sponsor the plan, UMA opposed the bill as an referred to a committee. FAILED had worked from a recently passed laws unworkable and unrealistic way to in a few other states and really pushed encourage research to cure diseases that HB 22 Medical Examiner what is happening in Canada with certain could do more harm than good. It passed Amendments (Rep. prescription drugs that he felt should the House but was voted down in the and Sen. ) be available without prescriptions here. Senate. FAILED This bill makes it a crime to give false UMA strongly opposed this proposal, information to the examiner when the pushed back on the bill, and discussed HB 210 Qualifying Conditions for Medical medical examiner is responsible to our concerns with the sponsor. Through Cannabis (Rep. Gay Lynn Bennion) certify the cause of death. Since false negotiations we were able to narrow the This bill would have added opioid use information might inadvertently or bill to allowing only the possibility of disorder as a qualifying condition for unintentionally be provided in those giving post-exposure HIV prophylaxis, medical cannabis for a patient in acute circumstances, UMA persuaded the pre-exposure HIV prophylaxis, smoking pain or in a pain clinic. UMA opposed this sponsor to change the bill to read that an cessation, and naloxone (which is already bill because pain that cannot adequately individual may not “knowingly” give false done), with guidelines and referral be managed by other treatment is already information. PASSED requirements for the pharmacist. a qualifying condition and medical Medicines that are legend drugs or cannabis has not been shown to be an Continued on page 14…

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WilkinsAD_Mar2020.indd 1 4/24/20 10:42 AM FEATURE

appropriate or effective treatment for for the first copy of the record that is physician and to continue to administer substance use disorder and studies needed to support a claim for workers naloxone. The law already required indicate that those who suffer from opioid compensation or social security disability pharmacist to receive special training and use disorder should not be recommended in a calendar year. Providers are required only administer these drugs under the medical cannabis. FAILED. to waive fees for the first request in a direction of a physician. UMA worked to year from an indigent individual (who ensure that pharmacists’ scope of practice SB 76 Controlled Substance Database is at or below the federal poverty level). was not expanded by this bill and that Access (Sen. Todd Weiler and Rep. Paul Ray) Providers may require the individual to the Physician Licensing Board would be This bill provides the Utah Medicaid Fraud provide proof of their status by executing consulted when appropriate in developing Control Unit with access to the controlled an affidavit. Subsequent copies may be the rules to implement this bill. UMA substance database. As introduced, it charged full price. UMA ultimately took supported the amended bill. PASSED would have provided the Unit with wide- no position on the final version of this open access to “fish” for information bill. PASSED FIREARMS BILLS on prescribing. UMA opposed this and convinced the sponsor to narrow the SB 187 Local Education Agency Policies HB 60 Conceal Carry Firearms Unit’s access only to investigating active Amendments (Sen. Amendments (Rep. and Sen. cases since they get this information in and Rep. Norman Thurston) ) a roundabout way now anyway because As introduced, the bill said a public or This bill allows individuals 21 and older of the nature of their investigation. charter school would not be required to carry a concealed firearm in public This means they cannot go on fishing to enforce a COVID-19 public health without a permit—called “constitutional expeditions but can only gain access for order requiring mask wearing on carry.” It was introduced to strong active investigations. With this change school grounds. UMA contacted the support by a large majority of the UMA was neutral on the bill. PASSED sponsor and found that he mainly just legislature. UMA against the bill, pointed wanted the public health authorities out that it would remove the current SB 173 Medical Records Amendments (Sen. to consult with the schools before training required for the concealed carry Karen Mayne and Rep. Nelson Abbott) implementing mask orders. So, UMA permit, which includes a module on This bill began as an effort to let attorneys developed language to accomplish suicide prevention, and that states with representing patients get the patients’ that rather than the approach initially relaxed gun laws have higher rates of medical records at the discounted patient taken by the bill. Although many other pediatric firearm mortality. In response price and was fueled by stories of bills stakeholders got involved and the bill to the concerns raised by UMA and for medical record copies costing in the went through three more substitutes, others, the bill was modified to provide thousands of dollars. Through the work the final bill maintained the ability of funding to the Division of Substance of the UMA and other stakeholders, that the governor, Department of Health, Abuse and Mental Health for suicide effort was blocked. The bill as finally county executive, and local health prevention efforts, though UMA did not negotiated makes various changes to department to issue a public health remove its opposition. There were many the amounts that can be charged for a order, such as a mask requirement, after organizations against this bill, but it was patient’s medical records. The maximum consulting with the schools that would veto proof and the Governor had stated he fee for a request that the records be be affected by it. Consultation would would sign the bill. PASSED delivered in an electronic medium is $150, not be required if the time required regardless of the number of pages. The for it would substantially increase HB 216 Firearms Amendments (Rep. fee for certifying the record as a duplicate the likelihood of loss of life due to an and Sen. David Hinkins) of the original is set at $20; for locating imminent threat. PASSED Under current law, a person can apply for a a patient’s record has been increased concealed carry permit when they turn 21, from $21.16 to $30 per request. For an SB 177 Pharmacy Practice Revisions (Sen. but they may have to wait up to 60 days to electronic record request, the healthcare Evan Vickers and Rep. Paul Ray) get the permit. This bill enables a person to provider shall deliver the records in the Among several other changes to pharmacy apply for a concealed carry permit before electronic medium customarily used by laws, this bill re-worded the statute turning 21, which then becomes valid the provider or in a universally readable that already allowed pharmacists to when they turn 21, so they don’t have to image, such as a portable document administer certain long-acting injectables wait until to get the permit. UMA did not format. Providers may not charge a fee intramuscularly under the direction of a take a position on this bill. PASSED

14 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

OTHER UMA SUPPORTED BILLS HB 265 Pharmacy Software needing counseling to get grant money Amendments (Rep. Rosemary Lesser, from the Division to help pay for these H.B. 81 Mental Health Days for Students (Rep. MD, and Sen. Evan Vickers) things. The bill also changes the coupon and Sen. ) A law was passed last year requiring program for purchasing gun safes (which This bill adds “mental or behavioral prescribers to transmit prescriptions help prevent suicides) to a rebate program. health” of a child to the list of valid excuses electronically to pharmacies beginning UMA supported this bill. PASSED for which a child may be absent from January 1, 2022 (to coincide with the school without being considered truant. Medicare federal law requiring the HB 350 Mental Health Records (Other valid excuses include mental same thing for controlled substances). Confidentiality Amendments (Rep. Steve or physical illness, a family death, an Pharmacy software programs, however, Eliason and Sen. Keith Grover) approved school activity, a health care generally do not have the capability Mental health therapists, psychologists, appointment, and a scheduled family to transfer an unfilled prescription to behavior analysts, and behavior specialists event.) UMA supported this bill for another pharmacy, which they need to are prohibited from disclosing confidential recognizing the importance of mental and be able to do if the first pharmacy cannot communication with a patient without behavioral health for children. PASSED fill the prescription. This is so patients, the express authorization of the patient, if they cannot get a prescription filled at parent or legal guardian of the patient, or HB 116 Student Attendance the first pharmacy they go to, do not have an authorized agent of the patient. This Amendments (Rep. Adam Robertson to go back to the physician for another bill replaces the authorized agent with and Sen. Lincoln Fillmore) prescription to get it filled but it can a person authorized by the patient in a If a student is absent from school for automatically be transferred by the patient written document signed by the patient. a mental or physical illness, this bill or the physician to get the prescription UMA supported this bill. PASSED prohibits the public or charter school transferred to another pharmacy. This from requiring parents to provide bill requires the programs to be able to HB 365 State Agency Realignment (Rep. documentation from a medical make the transfer by July 1, 2024. UMA Paul Ray and Sen. Jacob Anderegg) professional to substantiate the illness. supported this bill. PASSED This bill reorganizes the Department of UMA supported this bill because a Health and the Department of Human physician does not always need to see HB 292 Children’s Health Insurance Plan Services into a new Department of Health (and provide written documentation Amendments (Rep. James Dunnigan and and Human Services. The transition to the parent of) a child who has an Sen. Todd Weiler) begins on the effective date of the bill and illness that might prevent the child from This bill adds treatment for autism ends on July 1, 2022. The transitioning attending school. PASSED spectrum disorder to the benefits of the departments are to develop a written Children’s Health Insurance Program. transition plan for merging the functions HB 259 Lead Exposure Education and UMA supported this bill. PASSED of the departments by December 1, 2021, Testing Amendments (Rep. Stewart with input from interested stakeholders. Barlow, MD, and Sen. HB 336 Suicide Prevention Amendments The Department of Workforce Services This bill directs the Department of (Rep. Steve Eliason and Sen. Michael will take over non-clinical eligibility Health to create a child blood lead Kennedy, MD) for Medicaid and the Children’s Health epidemiology and surveillance program This bill has several different provisions Insurance Program. This is part of the to encourage screening and testing that address suicide. One of the key Governor’s plan to look at state agencies during the first and second year well provisions directs the Division of and find efficiencies. The DOH and the child clinical visits and to promote Substance Abuse and Mental Health to DHS used to be combined and many greater public awareness of the effects create a program to help rural healthcare states combine the two. UMA had no of lead exposure in children and the providers and smaller health systems position on the bill. PASSED availability of free screening and testing. implement a Zero Suicide program that These services are paid for by insurance. involves targeted screening and referral HB 380 Medical Examiner Revisions (Rep. Utah has many children who are exposed to resources. This is similar to programs Ray Ward, MD, and Sen. Derrin Owens) to lead and thus have health problems already running at Intermountain and This bill makes several changes to the associated with that exposure. UMA University Health, which are very helpful. Medical Examiner Act. Of greatest supported this bill. PASSED Another key provision makes it easier for significance to physicians is the change to individuals cleaning up a suicide site and the definition of unattended death. The

utahmed.org APRIL | MAY 2021 15 FEATURE

medical examiner is generally responsible controlled substances to an eligible Until 988 is working in July 2022, for determining and certifying the cause, pharmacy or physician for distribution people in crisis should continue to date, and place of an unattended death, to a medically indigent individual who call the National Suicide Prevention which under current law means the death is a Utah resident. The drug must be Lifeline at 1-800-273-TALK (8255). of a person who has not been seen by a in the original secure packaging and physician or physician assistant within is inspected before being given to the OTHER BILLS UMA FOLLOWED the prior 30 days. The bill changes the patient. The bill would allow individuals OR WORKED ON definition to mean the death that occurs to donate appropriate drugs as well. more than 365 days from when a health It would also allow medically indigent HB 344 Program Eligibility Amendments care professional last examined or treated patients from other states who are being (Rep. Steve Christiansen) the deceased individual for any purpose, treated in Utah to receive these drugs. This bill would have enacted several costly including writing a prescription. This UMA supported the bill. PASSED and significant changes to eligibility for will leave the responsibility for preparing Medicaid and food stamps and would the death certificate more often to the SB 189 Tobacco Retailer Amendments have directed the program to request decedent’s healthcare provider, rather (Sen. Evan Vickers and Rep. Paul Ray) several program waivers of the federal than the medical examiner. The Medical This bill makes several improvements government, which Dr. Examiner’s office asked UMA about to tobacco retailing laws. It significantly testified are likely to be turned down. It parts of the bill and UMA gave input and increases the penalties for selling a tobacco would have directed Medicaid to use private approved the 365 days. UMA supported product, including an e-cigarette, to third-party vendors to assist with verifying the bill. PASSED someone younger than 21. The current law Medicaid eligibility; required frequent has a sunset on tobacco specialty businesses publication of benefit fraud information; SB 83 POLST Order Amendments (Sen. that are within 1000 feet of a public or private required removal of ineligible individuals Jani Iwamoto and Rep. Ray Ward, MD) school (K-12) but were grandfathered. The when the federal restrictions end; required This bill makes a few changes to the businesses had filed a notice of intent to sue annual renewal applications to be entered POLST law. It changes the name of the the state over the sunset. The bill addresses without pre-populating last year’s life with dignity order back to POLST; the issue by waiving the residential distance information for the applicant; prohibited this is an order that gives direction requirement if the businesses relocate away a hospital from making presumptive to health care providers, health care from the school and move to a strip mall. The eligibility determinations for anyone other facilities, and EMS providers regarding bill also prohibits any employee, contractor, than pregnant women and children; barred specific health care decisions for a or patron from coming into the store if a hospital from making any presumptive patient. The bill also authorizes the form they’re younger than 21. UMA supported eligibility determinations for five years if to be signed electronically and authorizes portions of the bill. PASSED it makes three mistakes within one year; the parent, guardian, or surrogates of and several similar provisions relating to the patient to give verbal agreement SB 155 988 Mental Health Crisis SNAP and TANF. UMA opposed the bill. (within certain parameters that allow Assistance (Sen. Daniel Thatcher and The committee hearing this bill voted for authentication of the authorizer) to Rep. Steve Eliason) unanimously to hold it. FAILED the form if it would be too hard for them Last July, the Federal Communications to do it in person or electronically. UMA Commission designated 988 as a nation- SB 39 Hemp Regulation Amendments supported the bill. PASSED wide 3-digit number to connect with (Sen. David Hinkins and Rep. Jennifer suicide prevention and mental health Dailey-Provost) SB 97 Charitable Prescription Drug crisis counselors, to be operational by This bill makes several changes to the Recycling Program Amendments (Sen. July 2022. Later last year Congress passed regulation of industrial hemp products, Evan Vickers and Rep. Merrill Nelson and the President signed a bipartisan which by definition must have less than This bill provides some updates to the bill to create the 3-digit number and 0.3% total THC. The bill includes delta- Charitable Prescription Drug Recycling authorize states to collect a fee to help 9-tetrahydrocannabinol in the definition Program that was instituted in 2016 support the 988 function and services. of total THC; requires industrial hemp and modified last year. Current law This bill appropriates $4 million to help labs to test for THC analogs and prohibits allows physician’s offices, pharmacies, implement and support the 988 system more than 0.3% of any THC analog; nursing care and assisted living facilities and delivery of 988 services in Utah. UMA makes it unlawful to sell, distribute, or to donate legend drugs that are not supported the bill. PASSED transport outside the state under the

16 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

industrial hemp laws any product that CONCLUSION many other bills. The UMA legislative with too much THC; prohibits selling committee considered and took a or using a cannabinoid product that is Thank you to UMA leaders, staff, and position on nearly 150 bills this year. added to an alcoholic beverage or food, involved members for all you do to UMA members can login to the UMA enticing to children, or in smokable support UMA’s legislative efforts. With website and review a more complete list flower; among other things. UMA your help UMA continued to accomplish of bills, under Advocacy. worked with the sponsor to ensure that much for Utah’s physicians and patients it did not relax the forms in which the this year. Thanks also to the members of the product could be sold or otherwise make UMA Legislative Committee and Board psychoactive cannabis (which is under We were disappointed to be unable to of Directors for their dedication in medical cannabis, not HEMP) available hold our traditional Doctor’s Day at the reviewing the bills and developing under this law. PASSED legislature this year. Many physicians UMA positions. We particularly give and spouses have traveled to attend a special thanks to Jim Antinori, MD, SB 53 Behavioral Emergency Services the event year after year. As mentioned who continues to chair the Legislative Amendments (Sen. Daniel Thatcher and above, we greatly appreciate those who Committee, as he has for many years. Rep. Jefferson Burton) took the time to be involved despite We encourage all physicians and their This bill creates a new license for the restrictions and obstacles of the spouses to get involved with UMA in the behavioral emergency services pandemic. We look forward to when we legislative process. We appreciate your technicians and advanced behavioral can meet and work together again in continued support. emergency services technicians under the person with our legislature. Department of Health, as a specialized Note: Unless another effective date is stated EMS professional skilled in responding In addition to the bills discussed and in the bill or it is vetoed by the Governor, to behavioral health issues confronted by explained above, UMA also reviewed the legislative changes adopted in the 2020 EMS staff. PASSED and tabled or took no position on general session go into effect May 5, 2021.

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PHYSICIAN ASSISTANT BILLS - IN A NUTSHELL BY UMA CEO MICHELLE S. MCOMBER, MBA CAE

privileging, or authorization to do—under the written collaboration Senate Bills 27 and 28 introduce several changes to how you document described above. might work collaboratively with physician assistants and require a rigorous path to their independent practice. 5. If a physician assistant has more than 10,000 hours practice experience and works for a healthcare system, physician practice, clinic or other 1. SB 27 removes the delegation of services c. Thephysician or physicians give employer, THAT ENTITY determines agreement that a physician assistant must direction and guidance to the the consultation, collaboration, and have with a physician and changes it to physician assistant. referral that the physician assistant a collaboration for 4,000 hours with one needs to do. The restrictions and or more physicians in one specialty and 3. For a physician assistant who has collaboration and consultation will be for a further 6,000 hours of collaboration fewer than 10,000 hours practice whatever a practice or system decides with a physician or a physician assistant experience, regardless of where it should be. in the same specialty—total of 10,000 they work, this collaboration will hours (5 years) before a physician assistant be established at the practice level 6. If a physician assistant wants to can be independent. That independence (physician practice, clinic, health change specialties, they must gain a is limited to practicing what they have system, etc.) in written policies and further 4,000 hours of collaboration been previously trained and privileged, procedures that describe how this (as defined above) with a physician in credentialed, or authorized to do (“scope collaboration will occur and the that specialty. of practice”). methods for evaluating the physician assistant’s competency, knowledge, 7. Restrictions on independent practice 2. Collaboration is defined as the and skills. (This document determines include the following: interaction and relationship that a their “scope of practice.” If they later a. A physician assistant can only be physician assistant has with one or go out on their own, this establishes independent after 10,000 hours more physicians in which: what they can and cannot do). (as delineated above) in the same a. Thephysician and the physician specialty they have been practicing assistant are cognizant of the 4. An individual physician assistant’s and within their individual scope physician assistant’s qualifications scope of practice is what the physician of practice. and limitations in caring for assistant has been trained and b. A physician assistant practicing patients, and credentialed, privileged, or authorized independently may only provide b. Thephysician assistant, while to do under the collaboration a health care service if it is responsible for the care that the parameters above (with specific appropriate to do outside of a physician assistant provides, consults restrictions listed below). The scope health care facility and if they have with the physician or physicians shall not be more than they have been trained and credentialed regarding patient care, and had the training and credentialing, or authorized to provide it

18 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

independently without physician ii. At least 2,000 hours will be for which the physician assistant supervision. (So, this would restrict in psychotherapy under an has been trained and credentialed, surgery, etc.). experienced psychiatrist or privileged, or authorized mental health therapist; and to perform (same as SB27 8. With three narrow exceptions, iii. Therest of the hours (4,000 information above). physician assistants may not hours) will be completed administer general anesthetics: in collaboration with a 11. A physician assistant specializing in a. Theycan do a certain minimal psychiatrist. Collaboration as mental health care: sedation procedure if the defined in SB27 above. a. may administer a behavioral procedure is within the physician health screening instrument, but assistant’s scope of practice. 10. A physician assistant who meets not perform a psychological or b. Theycan do rapid sequence these requirements will be considered neuropsychological assessment; induction for intubation of a a mental health therapist under and patient if it is within their scope Utah law and be able to practice b. may not administer of practice, they are ACS/ACLS, consistent with the physician neurostimulation or or equivalent certified, and are assistant’s education, experience, and neuromodulation, unless done either directed by a physician or a competence. in a health care facility under the physician is not there to do it. a. A physician assistant specializing supervision of a physician who c. Theycan also administer anesthetics in mental health and working does that work, but may not be in an intensive care unit for the in a healthcare system, clinic, done outside of those parameters. purpose of enabling a patient or other employer is subject to to tolerate ventilator support or the consultation, collaboration, 12. With the additional responsibilities intubation under the supervision and referral responsibilities of the physician assistant licensing of an intensive care physician and if determined by the employer and board for those who want to specialize they are trained to do so. also by the requirements under in mental health care, including statute as delineated above. deciding which academic programs, 9. SB 28 establishes the standards and b. A physician assistant specializing certificates, and residencies meet process for a physician assistant to in mental health and who has the requirements, at least one of the specialize in mental health care. These more than 10,000 hours of physician board members will be are the requirements: practice experience may practice a psychiatrist who has experience a. Obtain and maintain a independently, providing services working with physician assistants. Certification of Added Qualification in psychiatry; b. Complete either an accredited doctorate level academic program, a post-graduate certificate in psychiatric and mental health, Medical Professionals Needed or a post-graduate residency in psychiatry with additional clinical practice or coursework, plus any addition work required by the board; and c. Complete 10,000 hours of clinical practice in mental health. i. At least the first 4,000 hours The Utah State Hospital (USH) is seeking medical professionals willing to provide their services to the pati ents in their facility when that will be under the supervision service is not available in the USH on-campus clinics. of a psychiatrist; Any willing provider should contact Dr. Paul Whitehead, Clinical Director at 801-344-4200.

utahmed.org APRIL | MAY 2021 19 FEATURE

WHEN IT COMES TO INVESTING, IS BIGGER, BETTER? BY RYAN BLADEN, CFP® VICE PRESIDENT, UMAFS

Image licensed by Ingram Image

ust like professional sports teams, Exhibit 1 the stock market has its stars. Over Weight of largest stocks by market capitalization in US stock market, 1927–2019. Jthe last several years, some of those stars have been known by the acronym FAANG (Facebook, Amazon, Apple, Netflix, and Google). Whether due to technological innovation, competitive advantages, or the result of a pandemic during which the economic impact has been unevenly distributed, these companies have exhibited tremendous performance and have amassed a larger percent of the overall market, accounting for over 20% of its value.

While investors may think the current “top-heavy” positioning is unusual, giant been concentrated in a handful of stocks. their top positions for a significant firms atop the stock market is nothing (Exhibit 1) In fact, from 1927 through the amount of time. AT&T was among the new. In 1967, IBM represented about the mid-1960s, the top 10 stocks made up largest two companies for six-straight same portion of the market as today’s more than 25% of its value. decades beginning in 1930. General largest company, Apple (6% vs. 7%, Motors and General Electric ranked respectively). And as you can see in the A breakdown of the largest US stocks by in the top 10 at the start of multiple following chart from Dimensional Fund decade in Exhibit 2 (see page 22) shows decades. IBM and Exxon were also Advisors (DFA), the market has often some companies have even maintained mainstays in the second half of the 20th

20 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession.

FEATURE

Exhibit 2 Largest 10 US stocks at the start of each decade.

century. Hence, concentration of the exhibiting such dominant performance. investors would likely view them as stock market in a few large companies, The researchers at DFA examined the great companies and, as such, safe such as the FAANG stocks in recent years, performance of the 10 largest companies investments –and safer investments is not a new normal; it is old normal. by size over the period from 1927-2019 often exhibit lower expected returns. (Exhibit 3). The following is a summary The types of businesses most prominent in of their findings: While it remains impossible to predict the market have varied through time but which companies will outperform the they have often been on the cutting edge of • Over the 5- and 10-year periods market and which will underperform, technology. AT&T offered the first mobile before becoming one of the 10 largest Intel is a recent example of this relative telephone service in 1946. General Motors companies, they outperformed by underperformance after becoming one of pioneered such innovations as the electric 19.3% per annum and 10.0% per the 10 largest companies. The technology car starter, airbags, and the automatic annum, respectively. giant posted average annualized excess transmission. General Electric built upon returns of 29% the decade prior to the original Edison light bulb invention, • Over the 5-and 10-year periods ascending to the Top 10 but, in the next contributing to further breakthroughs after becoming one of the 10 largest decade, underperformed the broad in lighting technology, such as the companies, they underperformed by market by nearly 6% per year. fluorescent bulb, halogen bulb, and the 1.1% per annum and 1.5% per LED. We know, then, that technological annum, respectively. The fact that a small subset of companies innovation dominating the stock market is can account for an outsized portion not a new normal; it is an old normal, too. Of course, this does not mean that of the stock market is not new. And as Another trend attributed to a the largest stocks didn’t perform well companies grow to become some of new normal is the extraordinary over the subsequent five and ten-year the largest firms not just in the US but performance of FAANG stocks, periods, just not as well as the overall around the world, the returns that push leading investors to wonder if they market. These results are consistent them there can be enticing. But stars should expect these stocks to continue with modern portfolio theory, as come and go, and as illustrated, not long

22 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

Exhibit 3 after joining the top 10, have often lagged Annualized return in excess of market for stocks after joining list of 10 largest US stocks, 1927–2019. the overall market over the next 5- and 10-year periods. While past performance is no guarantee of future results, it does serve as a reminder of the importance of having a broadly diversified portfolio that provides exposure to a vast array of companies and sectors. If you would like a second opinion on your portfolio to help ensure proper diversification and allocation based on your time horizon and risk tolerance, please contact UMAFS at 801-747-0800.

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HEALTHCARE PROVIDER WELLNESS IN THE TIME OF COVID AND BEYOND BY LAWRENCE M. LEWIS, MD, CHRISTOPHER R. CARPENTER, MD, RANDALL JOTTE, MD & EVAN SCHWARZ, MD

hysician well-being and the larger topic of healthcare provider well- P being has taken on an increased The root cause of moral injury among physicians is “being sense of urgency during the current “ COVID-19 pandemic. To be sure there has unable to provide high-quality care and healing in the been a unique set of challenges resulting context of health care.” from caring for patients with COVID-19 (Table 1). Early in the pandemic, based on multiple interviews, Shanafelt, et al. ” identified eight frequently cited sources political governance, social connections, beginning medical students begin to fall of healthcare provider anxiety related environment, and insecurity (both below the average of their matched controls to COVID-19.1 The COVID-19 pandemic economic and societal). during medical school and residency and has mostly illuminated the problems remain below population averages among that have been lurking within our PHYSICIAN BURNOUT physicians in practice.8,10 This suggests healthcare system for quite some time. Within this larger framework, work or that it is not an underlying lack of personal It would be misleading to focus solely occupation can be a dominant positive resiliency or psychological well-being on this pandemic crisis as a novel cause factor in achieving and maintaining which leads to excessive burnout among of physician and healthcare provider well-being in that it affects many of the physicians, but rather the circumstances of burnout and dis-satisfaction. The other components, including wealth, their training and practice.9,10 recognition of physician burnout and the health, education, social connections, and quest to improve physician well-being insecurity. The benefits of work in these Physician burnout has been a hot topic predates COVID2,3 and will outlast it. other areas of well-being likely varies based in the international medical literature on one’s exact role in the healthcare system for at least a decade. It turns out that It is impossible to divorce wellness in (technician, nurse, advanced practice the United States is not alone when it the workplace from the overall wellness provider, or physician). Physicians might comes to physician burn-out, and the experienced within a society. Over be expected to benefit in many, if not most, same causes seem to be universally the past two decades much has been of the wellness measures based on their responsible, although the magnitude published regarding how to best define occupation; so why do physicians apparently differs by country (and likely on a more and measure societal well-being and score lower on well-being measurements granular scale by work location).11 The quality of life, along with multiple efforts than other professionals and even non- factors which are most often cited by to develop validated tools to measure professional workers?8 Interestingly, it does physicians as the major contributors it.4-7 These tools advanced beyond the not start out that way. At least one large to job dis-satisfaction and burn-out previous simplistic model which equated study found that persons about to begin are: administrative burden, excessive wellness solely with national wealth and medical school suffer less from burnout bureaucratic tasks, insufficient time gross domestic product, to one that was and have higher quality of life scores to complete tasks, spending too many complex and multidimensional. This across all tested domains when compared hours at work, and lack of respect.12-14 model includes material living standards to age and education matched controls Although the electronic health (income, wealth), health, education, in the general population.9 These better record is a significant contributor to personal activities (including work), than average quality of life scores among burnout, its relative importance is

24 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

age-dependent, with only post-World That factor is fear; fear of contracting the priority. There was also an unprecedented War II “baby boomers” rating it in the disease and fear of spreading it to loved cooperation among various departments top three causes.13 An overarching theme ones.1, 17 Those of us in healthcare have seen and services to meet this once-in-a- summarized by a paper from the Agency unique changes in practice during this lifetime challenge, but as overall patient for Healthcare Research & Quality pandemic, from decreasing availability of volumes and revenues decreased, and (AHRQ) is that chaotic environments, consultations to segregating admissions it appeared that the wave of illness was low control over work pace, and an by COVID-19 testing. We have also seen waning, these efforts and attitudes were unfavorable organizational culture were alterations in off-work behavior, with not sustained. When the third (and by strongly associated with burnout and many healthcare workers isolating in far most devastating) wave hit, it felt as intent to leave practice (AHRQ).14 basements, garages, or trailers rather than though there was little appetite to redouble going home and exposing their family to the efforts that had been put in place to Hospitals and medical centers (whether possible infection.18 Although physicians suppress the first wave. As a tsunami academic, public, or private) have become in general recognize that they can contract of patients inundated our emergency increasingly aware of the problem of disease from their patients, this pandemic departments and hospitals, a familiar physician burnout. The answer many has been vastly different. The response of feeling of chaos, time pressure, and lack organizations initially embraced to this healthcare administrators and managers of control over our workplace descended. growing threat was to offer mindfulness regarding the very real fear factor during These of course, are well known to and resiliency training.15 West et al. this pandemic is one of the universal be associated with dissatisfaction found that mean physician resiliency lessons regarding clinician burnout we can and burnout,14 but many have begun scores were significantly higher than learn from COVID-19. We have seen how postulating that the real underlying cause those of the general population, and expressions of appreciation from patients, of physician burnout, particularly in the although higher resiliency scores were the public, and health administrators time of COVID-19, is something more associated with less burnout, there were can inoculate to some extent against the egregious: “moral injury.” This relatively still high burnout rates even among those overwhelming fatigue of caring for a recent idea has been elevated to the fore by with high resiliency scores.16 We do not continuous wave of sick patients, often the ongoing pandemic. The term “moral minimize the benefit of mindfulness and with insufficient personal protection, and injury” was first used in 1981 by Friedman resiliency programs, as they can help constantly having to fill shifts for those to describe a psychological condition to promote well-being. However, such that have been taken from our ranks by found in post-Vietnam war veterans.22 It individually initiated measures must be disease or quarantine. A recent Canadian was further explored in a wider array of part of a larger effort to 1) improve work survey of emergency physicians showed war veterans by Litz, et al. in 2009.23 Litz conditions, 2) allow more autonomy, that physician burnout remained stable described moral injury in the veterans 3) promote a culture of respect and during the first 10 weeks of the pandemic he was seeing as “a wound that can occur cooperation, and 4) make employee and acknowledged that expressions of when troops participate in, witness or satisfaction a measured quality indicator patient gratitude and renewed purpose fall victim to actions that transgress their (AHRQ).1, 14, 15 Relying solely on resiliency were important factors for maintaining most deeply held moral beliefs.” Diane training as a solution to burnout brings physician wellness.19 But we have also Silver, in a 2015 article describing the H.L. Mencken’s quote to mind: “For every seen that expressions of appreciation epidemic of post-traumatic stress disorder complex problem there is an answer that are hard to sustain. We have seen how that Litz and others were treating among is clear, simple, and wrong.” lack of commitment, if not resistance, by Afghanistan and Iraqi veterans, wrote many to undertake the steps required to that moral injury is “a deep soul wound HOW COVID HAS control the pandemic20 and the reluctance that pierces a person’s identity, sense of CONTRIBUTED TO BURNOUT of healthcare administrators to maintain morality, and relationship to society.”24 Our struggle with identifying and fixing their workforce in the face of financial The first reference I could find regarding the underlying causes of burnout and losses have demoralized our frontline moral injury in healthcare workers was dissatisfaction in the clinical practice caregivers.21 Initially there was a concerted in an opinion piece by Talbot and Dean of medicine may be at least partially St. Louis metropolitan-wide effort to in 2018.25 In this piece they attempt to informed by the ongoing COVID-19 streamline processes and to provide explain the difference between the source pandemic. However, there is a unique space and resources to care for COVID-19 of moral injury in war veterans and those factor which has emerged with COVID-19. patients. This was given the highest in healthcare workers. They suggest that

utahmed.org APRIL | MAY 2021 25 FEATURE

the root cause of moral injury among burnout during this critical time is required The National Academy of Medicine and physicians (and I dare say among other by the general population as well. A recent the Agency for Healthcare Research healthcare providers as well) is “being survey of more than 2,300 physicians found and Quality also have some wellness unable to provide high-quality care and that 80% identified lack of population recommendations for clinicians, which healing in the context of health care.” They compliance with masking and social are likely to be helpful if they can be go on to say that the failure “to consistently distancing protocols as the single greatest implemented.14,26 Self-care, taking breaks, meet patients’ needs has a profound cause of frustration to them.28 staying connected, and performing impact on physician well-being — this is self-check-ins are among these, but it the crux of consequent moral injury.” We have entered what we hope is the final may be the final recommendation that is phase of this pandemic, with the approval most important to heed: Take the time to The National Academy of Medicine has of highly effective vaccines for general “Honor your service: remind yourself and recently put out a statement entitled use. However, even with this promising others of the important and noble work “Strategies to Support the Health and news, the implementation of vaccination you are doing. Recognize colleagues for Well-Being of Clinicians During the policies has appeared haphazard their service whenever possible.” This has COVID-19 Outbreak” recognizing the and problematic. The best strategy been even more challenging in the time role that “moral dilemmas” are playing in regarding vaccination priority can be of COVID-19. As an example, our Medical exacerbating physician burnout during debated, but the debate should include Staff Association has had to cancel several this pandemic.26 They provide several representatives from the most impacted traditional annual events in which they recommendations for managers and groups and should be transparent. If honor their extraordinary clinicians and healthcare leaders which almost all of us vaccination access across the healthcare scientists for their service. would agree would be helpful, but which workforce will take a month or more, are woefully underutilized currently. The and our frontline workers are seeing a CONCLUSION statement begins with a simple directive: peak in COVID-19 patients right now, Ours is a noble profession, but we must “Provide clear messages that clinicians then putting younger frontline workers be allowed the time and resources to are valued.” The need for this is further (whether they be nurses, technicians, fulfill our obligation to our patients or emphasized in the opinion piece by therapists, environmental services, we take home the guilt of a job poorly Shanafelt et al.1 Based on interviews with security, transportation, trainees, or done. That job has always been to help 69 healthcare workers, they conclude physicians) at the back of the queue, those we can and to comfort those we that “simple and genuine expressions of allowing older providers earlier access, cannot. In the time of COVID-19, there gratitude for the commitment of health even if they have an extremely low is often insufficient time to do either. care professionals and their willingness to exposure risk does not seem equitable. This is not an insolvable problem, but put themselves in harm’s way for patients A more equitable approach may be to it will take determination and grit and and colleagues cannot be overstated.” vaccinate frontline healthcare workers the reimagining of a healthcare delivery But statements without tangible signs of who are exposed daily to known or system that is truly driven by patient- support and care “ring hollow.” The most suspected COVID-19 patients, and within centric outcomes rather than production important way to send a clear message that this group to stratify by risk factors for parameters. As Dean & Talbot conclude: front-line healthcare workers are valued is severe disease, such as age. There are “Physicians must be treated with respect, by supporting them in real actions and in clearly reasons for vaccinating our older autonomy, and [given] the authority to real time. Asking “everyday heroes” to care population as quickly as possible, but make rational, safe, evidence-based, for COVID-19 patients without adequate it makes little sense to delay frontline and financially responsible decisions.”25 PPE is not a show of support or respect. workers, not because they are at high risk If the procurement of adequate PPE is of dying, although there are estimates impossible, then all energy must be focused that there have been nearly 3,000 on developing and implementing the best deaths among healthcare workers as of evidence-based alternatives with honesty November of 2020.28 But rather because and transparency.27 It is not just managers when they get sick or need to quarantine, and healthcare leaders that must step up. the loss can decimate the workforce we -First published in Missouri Medicine The need for real actions to lower physician are relying on for our care.29 (Jan/Feb 2021)

26 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. FEATURE

References 1. Shanafelt T, Ripp J, Trockel M. Understanding com/slideshow/2019-global-burnout- 20. Demoralized health workers struggle as and addressing sources of anxiety among comparison-6011180 coronavirus numbers surge. https://www. health care professionals during the COVID-19 12. AHRQ Views. Khanna G, Bierman AS. latimes.com/world-nation/story/2020-12-11/ pandemic. JAMA 2020;323:2133-2134 Combatting the Burnout Epidemic. Content demoralized-health-workers-struggle-as- 2. Wellness for Emergency Physicians. Eds. last reviewed July 2017. Agency for Healthcare virus-numbers-surge. Accessed 12.22.20 Andrew LB, Pollack ML. American College of Research and Quality, Rockville, MD. 21. Alia Paavola. 266 hospitals furloughing workers Emergency Physicians, Dallas, Tx. 1995  https://www.ahrq.gov/news/blog/ahrqviews/ in response to COVID-19. Becker’s Hospital CFO 3. Improving Working Conditions Reduces physician-burnout.html Report. https://www.beckershospitalreview. Physician Burnout. Agency for Healthcare 13. Medscape National Physician Burnout & com/finance/49-hospitals-furloughing- Research and Quality, Rockville, MD. Content Suicide Report 2020: The Generational Divide. workers-in-response-to-covid-19.html. last reviewed July 2017. January 15, 2020. https://www.medscape.com/ Accessed 12.22.20  https://www.ahrq.gov/funding/grantee- slideshow/2020-lifestyle-burnout-6012460#1 22. M.J. Friedman. Post-Vietnam syndrome: profiles/grtprofile-linzer.html 14. AHRQ Works. Building Bridges Between Recognition and management. Psychosomatics, 4. Eger, R. J., & Maridal, J. H., (2015). A statistical Research and Practice. Physician Burnout. 22 (1981), pp. 931-943 meta-analysis of the well-being literature. AHRQ Pub. No. 17-M018-1-EF July 2017 https:// 23. Litz BT, Stein N, Delaneya E, Lebowitz L, Nash International Journal of Well-being, 5(2), 45-74. www.ahrq.gov/sites/default/files/wysiwyg/ WP, Silva C, Maguen S . Moral injury and moral doi:10.5502/ijw.v5i2.4 professionals/clinicians-providers/ahrq-works/ repair in war veterans: A preliminary model 5. Durand M. The OECD Better life initiative: impact-burnout.pdf and intervention strategy. Clinical Psychology How’s life? and the measurement of well-being. 15. O’ Donnell WJ, Dean W, Talbot SG. In the Review 29 (2009) 695–706 Review of Income and Wealth Series 61, Number burnout epidemic, is mindfulness the 24. Silver D. Beyond PTSD: Soldiers have injured 1, March 2015 DOI: 10.1111/roiw.12156 new opioid? https://www.kevinmd.com/ souls. Miller-McCune.com. Truthout. 6. Costanza R, Hart M, Posner S, Ralberth J. blog/2020/11/in-the-burnout-epidemic-is- September 3, 2011. https://truthout.org/articles/ Beyond GDP: The need for new measures of mindfulness-the-new-opioid.html. Accessed beyond-ptsd-soldiers-have-injured-souls/ progress. The Pardee papers No. 4. 2009. Boston 12.21.20 25. Talbot S, Dean W. Physicians aren’t ‘burning University Frederick S. Pardee Center for the 16. West C, Dyrbye LN, Sinsky C, Trockel M, Tutty out.’ They’re suffering from moral injury. Study of Longer-Range Future. M, Nedelec L, Carlasare LE, Shanafelt TD. STAT July 26, 2018. https://www.statnews. 7. Stiglitz JE, Sen A, Fitoussi JP. Report by the Resilience and burnout among physicians and com/2018/07/26/physicians-not-burning-out- Commission on the Measurement of Economic the general US working population. JAMA they-are-suffering-moral-injury/ Performance and Social Progress. 2009 Network Open. 2020;3(7):e209385. doi:10.1001/ 26. National Academy of Medicine 8. Shanafelt TD, Boone S, Tan L, et al. Burnout jamanetworkopen.2020.9385 Website. https://nam.edu/initiatives/ and satisfaction with work–life balance among 17. Gold, J. We need to talk about the COVID-19 clinician-resilience-and-well-being/ U.S. physicians relative to the general U.S. deaths of healthcare workers. Forbes. clinician-well-being-resources-during-covid-19/ population. Arch Intern Med. 2012;172:1377–1385 Dec.22, 2020. https://www.forbes.com/sites/ 27. Lynch JB, Perica Davitkov P, Anderson DJ, 9. Brazeau CMLR, Shanafelt T, Durning SJ, Massie jessicagold/2020/12/22/we-need-to-talk-about- Bhimraj A, Cheng VC, Guzman-Cottrill J, SF, Eacker A, Moutier C, Satele DV, Sloan JA, the-covid-19. Accessed 12.22.20 Dhindsa J, Duggal A, Jain MK, Lee GM, Liang Dyrbye LN. Distress Among Matriculating 18. RVs 4 MD’s: Healthcare Workers Given SY, McGeer A, Valery Lavergne V, Murad Medical Students Relative to the General Trailers During Pandemic | NBCLA. https:// MH, Mustafa RA, Morgan RL, Falck-Ytter Population. Acad Med. 2014;89:1520–1525. www.youtube.com/watch?v=QR0hZth0UYQ. Y, Sultan S. Infectious Diseases Society of First published online September 23, 2014 doi: Accessed 12.20.20 America guidelines on infection prevention 10.1097/ACM.0000000000000482 19. De Wit K, Mercuri M, Wallner C, Clayton N, for health care personnel caring for patients 10. D yrbye LN, West CP, Satele D, et al. Burnout Archambault P, Ritchie K, Gérin-Lajoie C, with suspected or known COVID-19. among US medical students, residents, and Gray S, Schwartz L, Chan T, for the Network of Clinical Infectious Diseases, https://www. early career physicians relative to the general US Canadian Emergency Researchers. Canadian idsociety.org/globalassets/idsa/practice- population. Acad Med. 2014;89:443–451 emergency physician psychological distress and guidelines/covid-19/infection-prevention/ 11. Medscape Global Physicians’ Burnout burnout during the first 10 weeks of COVID-19: idsa-covid-19-guideline_ip_v1.0.1.pdf,2020 and Lifestyle Comparisons. February A mixed-methods study. JACEP Open 28. ThePhysicians Foundation. 2020 Survey 14, 2019. https://www.medscape. 2020;1:1030–1038. of America’s Physicians: COVID-19 Impact

utahmed.org APRIL | MAY 2021 27 CME CALENDAR

APRIL 2021 Utah Seeks Physician For Deputy State Epidemiologist

7–9/17 H ealth Science Leadership Development Program, The Utah Department of Health (UDOH) is seeking a Online, UUCME (19.0) licensed Medical Doctor with knowledge of surveillance 21 Mindfulness in Medicine, Murray, IHC (4.0) epidemiology and infection prevention and control to fill a critical role as the Deputy State Epidemiologist MAY 2021 providing medical and clinical expertise to the Healthcare Associated Infections/Antibiotic Resistance (HAI/AR) 19 Mindfulness in Medicine, Murray, IHC (4.0) Program, the Disease Response, Evaluation, Analytics and Monitoring (DREAM) program, and the Utah Public JUNE 2021 Health Laboratory (UPHL). This role includes serving as medical director of infectious disease outbreak responses, 7-9 Common Problems in Pediatrics, Online, IHC (13.75) engaging in strategic planning as it relates to infectious diseases, offering guidance on surveillance of reportable OCTOBER 2021 conditions, and engaging with the healthcare provider community on infectious disease topics. 7-9 Ogden Surgical-Medical Society's Hybrid CME Conference, Ogden, OSMS (29.5) For more information, visit www. governmentjobs.com/careers/utah/jobs/3017066/ Links to each of these and other events are available on the UMA deputy-state-epidemiologist-infectious-diseases website at https://www.utahmed.org/wcm/_PhysicianSupport/ CME_Calendar.aspx

CME SPOTLIGHT

Title: Suicide Prevention and resources in suicide screening and risk assessment/triage, When: On-demand Webinar brief evidence-based interventions to reduce suicide risk, Where: Online at cme.utahmed.org skills in communicating with patients at risk of suicide, and an Provider: UMA Foundation increased understanding of available resources. CME: 1 AMA PRA Category 1 Credits™ Following this activity, participants should be able to: Approximately 45 percent of all individuals who die by suicide visited a primary care physician in the month preceding their 1. Describe the epidemiology of suicide. death. Yet according to the Utah Behavioral Health Workforce 2. Identify the warning signs and risk factors for suicide. Suicide Prevention Survey, only 57 percent of physicians said 3. Assess a patient’s suicide risk. they were confident in their skills to help/assist a suicidal 4. Develop a safety plan with the patient. individual. This training will provide physicians with training 5. Access available resources.

The following sites allow you to search databases to locate medical meetings throughout the country

ama-assn.org eMedEvents.com

28 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. CME CALENDAR

Recurring Activities Recurring activities are scheduled at St. Mark’s Hospital, IHC Hospitals, Primary Children’s Medical Center, and the School of Medicine. Contact the sponsor for specific information. For more information on the above listings, please call the provider at the phone number listed below.

List of Sponsors

ACOG American College of Obstetrics and Gynecology, UT PRKA Program of Addiction Research, Clinical Care, Chapter, SLC, 801/747-3500 Knowledge, Advocacy, SLC, 801/585-6667 ACP American College of Physicians, UT Chapter, SLC, SHC Steward Health Care, South Jordan, 801/984-2384 801/582-1565 x2441 TRH Timpanogos Regional Hospital, Orem, 801/714-6505 ACS American College of Surgeons – Email UtahATLS@ UAFP Utah Academy of Family Physicians, SLC, gmail.com for info about ATLS 801/587-3285 ALT Alternative CME, SLC, 801/200-4321 UHLF Utah Healthy Living Foundation, SLC, 801/993-1800 AMA American Medical Association, Chicago 312/464-4761 or 801/712-8831 AUCH Association for Utah Community Health, SLC, UDS Utah Dermatology Society, SLC, 801-266-8841 801/924-2848 UMAF Utah Medical Association Foundation, SLC, CA Collegium Aesculapium, Orem, 801/802-0449 801/747-3500 CM Cine-Med, Woodbury CT, 800-253-7657 UMIA Utah Medical Insurance Association, SLC, 801/531-0375 ESI ESI Management Group, SLC, 801/501-9446 UOS Utah Ophthalmology Society, SLC, 801/747-3500 IHC Intermountain Healthcare CME, SLC, 800/842-5498 USH Utah State Hospital, Provo, 801/344-4265 LVH Lakeview Hospital, Bountiful, 801/299-2546 UUCME University of Utah Continuing Medical Education, OSMS Ogden Surgical-Medical Society, Ogden, SLC, 801/581-8664 801/564-5585 VA VA Center for Learning, SLC, 801/584-2586 PCH Primary Children’s Hospital, SLC, 800/910-7262

The following websites offer online continuing medical education: cme.utahmed.org cmelist.com reachmd.com/programs/ psnet.ahrq.gov/cme ama-assn.org/education-center cms.gov/Outreach-and-Education/Learn/ thedoctorschannel.com/cme/ baylorcme.org Earn-Credit/Earn-credit-page.html freecme.com medscape.org primarycarenetwork.org/ pri-med.com/pmo/OnlineCME.aspx vlh.com emedevents.com/ medicine.utah.edu/cme nejm.org/continuing-medical-education

utahmed.org APRIL | MAY 2021 29 THE PRIVATE EQUITY PLAYBOOK FOR HEALTHCARE M&A BY MARK A. COTTER, ESQ. RAY QUINNEY & NEBEKER P.C

For at least the last decade, health care providers (e.g., closing (taxed at favorable capital gains rates, subject (including evil MBAs acting as holding company physician practices, imaging centers, ambulatory to certain exceptions, plus the 3.8% net investment management) from interfering in a physician’s surgical centers, assisted living facilities) have income tax) vs. (b) compensation paid in the future clinical judgment (doing so would constitute the been the targets of robust merger and acquisition (taxed at less favorable ordinary income tax rates and unlawful practice of medicine). While this provides a (M&A) activity, including by health systems and, in subject to FICA, FUTA, etc.). legal barrier against interference in clinical matters, some cases, acquisitions by insurers seeking vertical from a practical perspective it often falls short integration. More recently, a new player has entered Certain Regulatory Issues and is an unsatisfactory barrier when physicians the fray – private equity-sponsored firms. This article From a health care fraud and abuse perspective are forced to object to “financial” decisions. Well- provides an overview of the goals and objectives of (generally meaning the “wide and deep” regulatory advised physicians will negotiate for sole control private equity investments in health care providers footprint arising from the Ethics In Patient Referrals or veto power (supermajority voting) over clinical and some of the key issues involved in a private equity Act (42 U.S.C. § 1395nn) and related legislation (the decision making (e.g., hiring and firing nurses, acquisition transaction. “Stark Law”), the federal Anti-Kickback Statute, 42 medical directors, etc., clinical protocols and quality U.S.C. § 1320a-76(b), CMS conditions of participation improvement initiatives). This effort seeks to strike a Private Equity – General and coverage and reimbursement rules, anti-markup balance between (a) profit motives of the Fund (or the For purposes of this article, “private equity” refers to rules, etc.), careful structuring is required to assure subsequent owner once the Fund exits its investment) a broad range of pooled investment vehicles (funds) that the transaction and resulting venture, where its and (b) physician control over quality of care and the that raise equity capital from multiple investors physician owners are sources of referrals, is compliant best interests of patients. to finance their investment and trading activity in (e.g., no unexcepted Stark Law financial relationships private companies. A typical private equity fund (a with a designated health services provider). Conclusion “Fund”) will seek to “exit” its portfolio companies We can be certain that the trend of private equity (e.g. sell to other private equity buyers, strategic Rollover Equity – The Good, the Bad and the Ugly investments in health care providers will continue, acquirers or take public) in 5-7 years. Depending on A Fund will seek to invest in companies with strong whether as “platform” or “tuck in” acquisitions, its strategy, a Fund may seek a “platform” acquisition management teams and will often require some of and that the resulting networks of affiliated (initial acquisition made as the starting point for the target company’s equity owners, particularly those providers (owned and managed by the same other acquisitions in the same industry/service line, members of the management team who are critical to Fund or its portfolio holding company) will gain where the target has strong management expertise the future success of the business, to “roll over” a portion market strength through collaboration, back office and infrastructure that can be leveraged), followed of their equity such that they will own a minority equity efficiencies with respect to human resources, by “tuck in” acquisitions of smaller practices which position in either the target company or a higher-tier coding and billing, etc. Those physicians in a later can then realize operational efficiencies. holding company (which holds the target company and career stage will generally have far more interest in other similar acquisition targets).Rollover equity raises pursuing a private equity “exit” transaction, whereas PE’s Laser Focus: All-Important EBITDA and Quality a number of negotiation issues, such as: the trade-off for earlier career physicians is not as of Earnings simple and often causes consternation. In any event, The primary benchmark for a private equity investor is • Whether the rollover equity will be on par (pari the good news is that, at least in the current market “EBITDA” (earnings before interest, taxes, depreciation passu) with the equity interests held by the Fund environment, deal competition between hospitals and amortization) since it provides a useful measure or sit lower (subordinate) in the capital structure and health systems (as strategic acquirers) and of cash flows (historical and anticipated “pro forma” of the target or holding company? private equity funds (as financial acquirers) should future cash flows). For valuation purposes, EBITDA benefit physicians through higher multiples and is multiplied by a negotiated multiple in order • Whether, given the continued service requirement, resulting valuations. to establish an enterprise valuation (which, after the rollover equity will be taxable as compensation deducting liabilities, results in the equity value). Given (ordinary income under IRC §83), the timing of MARK A. COTTER. Mr. Cotter is a its critical importance, EBITDA is closely scrutinized recognition of that income, or whether the rollover shareholder in Corporate, Securities and adjusted to eliminate non-recurring items. equity can be structured on a tax-deferred basis as and Health Care practice groups of a contribution to a partnership? the law firm Ray Quinney & Nebeker “Scrape” and its Impact on Valuation and Taxes P.C. Mr. Cotter has significant At this point, consider just how many physician • The events triggering forfeiture (what if a physician transactional experience with practices have no EBITDA – because they “zero out” is forced out?) and the purchase or redemption respect to the development, financing, syndication, the corporation (or other entity) by paying out all or price upon those events. operation and acquisition of ambulatory surgery substantially all profit as compensation to physicians. centers, including hospital system-physician joint However, EBITDA can be created through financial Generally speaking, careful structuring can result ventured surgery centers. More generally, Mr. Cotter engineering – the target practice will reduce physician in tax-deferral on the rollover equity component of devotes a substantial portion of his practice to health compensation by 20-30% of earnings before physician the transaction. law regulatory and transactional matters in the compensation (this reduction is sometimes called context of physician group practices, ancillary service “scrape” since the acquirer “scrapes” compensation Corporate Practice of Medicine – providers, ambulatory surgery centers, home health, off the top from physicians in order to provide a Profits vs. Patients assisted living facilities, pharmacy and other providers, return on investment). So, from the physician owner Utah’s corporate practice of medicine prohibition is as well as physician-hospital and other provider M&A standpoint, there is an important trade-off: (a) cash at not particularly strong, but does prevent a corporation and joint venture transactions. 30 APRIL | MAY 2021 UTAHStill the GreatestPHYSICIAN Profession. *Advertorial from Ray, Quinney & Nebeker GOOD PEOPLE DRIVE GREAT RESULTS

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WHY YOU SHOULD TRUST THE COVID-19 VACCINE Œ Vaccines do not give you COVID-19. ‘ COVID-19 vaccines have been deemed safe by the None of the vaccines currently available or in development Centers for Disease Control and Prevention (CDC). contain a live virus. The mRNA vaccine contains a Serious or dangerous side effects are extremely rare. “blueprint” for a small (non-living) piece of the virus, which The most common side effects are sore arm, feeling tired, your body will use to build up antibodies against should you headache, body aches, or a mild fever. These side effects ever become exposed to the actual virus. usually last no more than two days. The symptoms are the  There is no evidence vaccines affect fertility or harm an result of the vaccine working to strengthen the immune system. ongoing pregnancy. If you have a history of severe allergic reactions to getting Clinical data available shows no effect on the health of a vaccine, talk to your doctor to see if getting a COVID-19 a pregnant individual or fetus. However, if you get the vaccine is appropriate. COVID-19 virus, complications associated with it can pose a serious risk to pregnancy and the mother’s health. Those ’ The vaccines will let us get back to spending time with who are pregnant and thinking of getting the vaccine should family and friends. discuss their concerns with a physician. The more people who get vaccinated, the more difficult it would be for the virus to infect others and spread the Ž COVID-19 vaccines do not alter your DNA. disease, even to people who are unable to get the vaccine. The mRNA contained in the vaccine does not interact with This is called herd immunity. our DNA in any way. The mRNA is used to act as a blueprint for a small, non-living part of the virus that will be used to Until we can understand if those who received the vaccine help our bodies build up an immune response. That way can spread the virus, you should still wear a face mask when should the virus ever enter our body, our immune system around others, practice social distancing, and frequently can act quickly. wash your hands.  The science behind mRNA vaccines has been around “ The vaccines can offer longer term protection, even if for several years and has been clinically proven to be you have already had COVID-19. safe and effective. People who have had COVID-19 can benefit from the long- Neither science nor safety shortcuts were taken in the term protections from severe complications that can come development of the vaccine. Increased priority, collaboration, with the virus, as it is possible to get reinfected. and funding contributed to its expedited development. ” Even if you are not at increased risk for severe  COVID-19 vaccines do not contain any microchips, complications from COVID-19, getting the vaccine may implants, tracking devices, or other questionable protect others from getting sick. It will also help you substances. return to work or school sooner. COVID-19 vaccines currently available and in development To help stop the pandemic, we will need to use all the tools do not contain any ingredients that have not been already and information available. This includes wearing face masks, used in manufacturing vaccines. The vaccine does not practicing social distancing, staying home when you feel contain any solid implants or fetal tissue. sick, and getting the vaccine if you can.

To learn more about COVID-19 vaccines, visit cdc.gov/coronavirus/2019-nCoV/. www.utahmed.org -original artwork used with permission from Texas Medical Assoc. Medical Texas used with permission from -original artwork