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February 2017 Newsletter
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NAMSAP Quarterly Newsletter 
Volume 10, Number 1
          February 2016

By: Shawn R. Deane, Esq.
Executive Director/COO, ISO Claims Partners
 
Dear NAMSAP Members: 

As President of NAMSAP for 2017, I look forward to working with each and every one of our members, committee members and chairs, advisory council and board members. I also hope to forge new partnerships and solidify existing relationships with the payer community and members of CMS - and to further engage the general public. NAMSAP did some exciting things in 2016, including the development of our advisory council and raising awareness of the opioid epidemic and its intersection in MSAs.
 
A prime objective in 2017 will be to continue to cover high-profile issues in the MSP industry, including impending changes in CMS's re-review process, a potential WCRC change and the evolution of the CRC.  We will also continue our advocacy for common-sense evidence-based approaches to MSAs, promoting 'appropriate' versus 'speculative' care via cost-effective and analytical methodologies.  
 
Another key strategic goal for 2017 is to increase participation from our membership through new and exciting offerings.  In this issue of NAMSAP Advisor, we are excited to announce an exclusive 'members only' discounted subscription to REDBOOK's drug pricing modules as well as the rollout of our new MSCC program.
 
To continue growth in membership, educational programing and professional development opportunities, the 2017 board of directors and committee chairs are reaching out to the greater membership for involvement and ideas.  We need your help to continue to positively influence the evolution of MSP compliance. Below is a description of each committee and its chair/s. We need new volunteers for each committee as we strive to strengthen NAMSAP. 
 
Please contact these individuals to see how you can get involved.

Legislative and Case Law Committee

Erin Collins, Co-Chair
Katie Fox, Co-Chair
The committee monitors and evaluates applicable case law and federal and state legislation and regulatory statutes affecting MSP. The committee informs the membership of such developments and occasionally asks for members to contact public officials.

Education Committee

Shawn Deane, Co-Chair
Tom Spratt, Co-Chair
The committee oversees all NAMSAP educational offerings including the Annual Meeting, Regional Meeting and online education (webinars).
 
Webinar Sub-Committee

Shawn Deane, Chair

The subcommittee organizes online education on topics of interest. Recent webinars include those on ethics, ICD-10, Medicare Advantage Plans, Evidenced-Based Medicine, among others.
 
Annual Meeting Sub-Committee

Gary Patureau, Co-Chair
Michelle Allan, Co-Chair

The subcommittee organizes the annual Annual Meeting and Education Conference each year. This includes planning the educational sessions and networking opportunities.

Communication Committee

Rita Wilson, Chair

The committee oversees all public affairs including Alliance social media, press releases, and the quarterly newsletter.

Membership Committee

Michelle Allan, Co-Chair
Emily Grocoff, Co-Chair

The committee oversees membership recruitment and member benefits and makes recommendations to the Board of Directors for different initiatives to enhance membership such as the Partner Professionals program.
 
Data & Development Committee

Fran Provenzano, Chair

The committee attempts to bring the MSP industry together through data sharing and support for improved service levels.

Evidence Based Medicine Committee 

Amy Bilton, Co-Chair
Gary Patureau, Co-Chair

The committee develops and distributes information grounded in evidence-based medicine, widely accepted best clinical practice, or criterion which can assist MSA and MSP practitioners in their work.
 
Liability Committee

Josh Pettengill, Co-Chair
Rasa Fumagalli, Co-Chair

This committee, established in 2016, seeks to build a suggested framework for Liability MSAs and works as liaison to CMS to advocate NAMSAP's recommendations regarding MSP compliance when settling liability claims.



Working with CMS on opioids and its re-review process and promoting payer participation in NAMSAP are high priorities
 
The board of directors of the National Alliance for Medicare Set-Aside Professionals has elected the following officers for 2017: 
  • President: Shawn Deane, JD, MEd, MSCC, CMSP - assistant vice president of Product Development of ISO Claims Partners
  • Vice President: Greg Gitter, CMSP - president of Legacy Claims Solutions, Inc. (a Gitter Company)
  • Treasurer: Rita M. Wilson - CEO of Tower MSA Partners
  • Secretary: Christine Melancon, RN, CCM, MSCC, CNLCP, CMSP - vice president of Operations for EZ-MSA Services 
"I am honored to be selected to represent NAMSAP as president," said Deane. "We will build upon initiatives launched by last year's outstanding President Gary Patureau and forge new opportunities to improve Medicare Secondary Payer services."

Addressing the opioid epidemic remains a top priority, and NAMSAP will continue its efforts to persuade the Centers for Medicare and Medicaid Services (CMS) to follow its own Part D guidelines when reviewing and approving Workers’ Compensation Medicare Set-Asides (WCMSAs). NAMSAP will also monitor CMS’s selection of a new Workers’ Compensation Review Contractor and the evolution of the Commercial Recovery Center.

“Promoting payer participation in NAMSAP is another high priority,” Deane added. “We are delighted to add Beth Hostetler with Albertsons and Safeway to our board of directors and look forward to better representing the MSP goals for both payers and submitters.”

Other new board members are Amy Bilton with Nyhan Bambrick Kinzie & Lowry and Monica Williams, MWC Associates. 
 
 
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Renaissance Baltimore Harborplace Hotel

Baltimore, MD 
September 27th - 29th, 2017
NAMSAP Negotiated Room rate: $174 

We ask you to make plans now to attend this year's annual conference in Baltimore. The agenda and speakers are outstanding and we hope you take advantage of the best value for training in the business. There is no conference like the NAMSAP conference in this industry. You will receive the latest educational programing in MSA and MSP compliance at a cost that is affordable for all. We will also be proctoring the MSCC exam for those who participate in NAMSAP's MSCC program.
 
Don't forget all of the continuing education opportunities - it makes the conference an incredible bargain.  Please make you plans to support NAMSAP by registering early. 
 
This will be an interesting year for all of us as the national election process unfolds. We have an opportunity to influence how the results of the election will affect MSP compliance in the future. We must be active in the process or we could regret the results. Please register for the annual conference, sign up for a committee and reach out to someone that should be a member of NAMSAP and encourage them to join. This is your organization and we need you to help make it the best alliance it can be.


In February's edition of NAMSAP Advisor, we focus on two key aspects of the opioid crisis.  First, we have an excellent overview from Rasa Fumagalli, looking back on key milestones in the national battle against opioid abuse in 2016, followed by a look ahead to the new battle lines shaping up for 2017.  Next, we have a new author for NAMSAP Advisor, but certainly not a new face for those of us who follow the opioid crisis in workers’ compensation.  Mark Pew, in his article entitled “Cleaning Up the Mess”, provides us with a realistic view of the opioid tapering process in workers’ compensation, emphasizing the importance of involving mind, body and soul to achieve long term success.   Our final article features Dan Anders in his first NAMSAP Advisor contribution.  Dan delivers a comprehensive interview with Doug Holmes, giving us insights into what we can expect in the arena of MSP compliance legislative reform initiatives in 2017.


Many thanks to Rasa, Mark and Dan for sharing their expertise!  


If you have ideas as to content you’d like to see, or would be interested in writing an industry-related article for one of our upcoming newsletters, please contact Rita Wilson, Communications Committee Chair at  Rita.Wilson@TowerMSA.com.



By: Rasa Fumagalli JD, MSCC
      Director of Compliance, NuQuest
 
The nation's opioid epidemic has been the focus of former President Obama's administration. According to the Centers for Disease Control and Prevention (CDC), opioids played a role in 33,091 deaths in 2015. This figure is linked to the use of prescription opioids that are being prescribed for non-cancer chronic pain. Since there is insufficient medical evidence that opioids improve chronic pain, the CDC published guidelines in March of 2016, for prescribing opioids for non-cancer pain. The guidelines recommend the use of non-opioid therapies, such as behavioral or exercise based, whenever possible. If opioids will be prescribed, the lowest effective dose should be prescribed for the briefest period of time. Regular follow up is also needed to ensure that the benefits of the opioids exceed the risks. 

 

 
In addition to the new guidelines, the CDC encourage states to run prescription drug monitoring programs (PDMPs) in order to allow prescribers and pharmacists to better regulate the dispensing of opioids. Several states that have implemented these programs have shown a decrease in certain opioid overdose deaths. These states include Florida, New York, Tennessee and Oregon. 
 
Joining the CDC in the battle to curb opioid abuse is the US Surgeon General, Dr. Vivek H. Murthy. His office launched the "Turn the Tide", nationwide campaign, in 2016 in order to bring awareness to and end the opioid epidemic. Dr. Murthy has stated: "We have to stop treating addiction as a moral failing and start seeing it for what it is: a chronic disease that must be treated with urgency and compassion." This statement signals a significant departure from the way opioid use disorder was previously viewed by many. The campaign also focuses on reaching out to health care providers in order to encourage them to comply with the CDC guidelines for prescribing opioids and serve as leaders in the battle against opioid abuse. Physicians are encouraged to use medication assisted treatment (MAT) when they have identified patients with an opioid use disorder and seek to prevent overdoses. Dr. Murthy and his office have also gone on a nationwide tour to meet with those affected by the epidemic and discuss various effective practices with community leaders. 
 
The Comprehensive Addiction and Recovery Act (CARA) signed into law on July 22, 2016 is yet another weapon in the battle against opioid abuse. It seeks to address the opioid epidemic by providing for the following: expanded prevention of opioid use through education programs, expanded availability of naloxone to law enforcement agencies and first responders, expanded treatment for incarcerated individuals with addiction disorders and expanded disposal sites for opioids in order to prevent them from being misappropriated. The Act also seeks to: develop evidence based opioid and heroin treatment and intervention programs, MAT and intervention demonstration programs and strengthen PDMPs in states. 
 
Although the Act authorizes over $181 million each year in new funding for the program, the funds must come through the regular appropriations process. Given the administration change, the degree of funding is uncertain. There should however be support for it since Representative Tom Price, President-elect Trump's chosen Secretary of the Department of Health and Human Services, voted in favor of the CARA legislation. Vice President -elect Pence similarly expressed his support of treatment and recovery for those addicted to opioids when he, along with 44 other governors in the National Governors Association, signed a compact to address this in July of 2016. 
 
The opioid epidemic is far from over. It can however be managed through the implementation of the CDC guidelines as urged by the Surgeon General in the Turn the Tide campaign. The passage of the CARA Act, with its sweeping directives, further shows a strong commitment of the nation to end the epidemic. 


By: Mark Pew,
      Senior Vice President, PRIUM
 

The management of non-malignant chronic pain is very complex, very individualized, and in some ways trial and error. Prescription opioids certainly have a role in the treatment of acute pain and end-of-life care, but their role in the treatment of chronic pain is much less clear. That is because long-term use often creates compounding side effects such as constipation, dry mouth, drowsiness, sleep disorders, heart rhythm disorders, respiratory depression, lethargy, tolerance, dependence, addiction, overdose, and death. These ever-increasing side effects, which often produce a perceived need for an ever-increasing number of drugs and dosages, create an ever-increasing human cost to the patient and financial cost to the payer. And when it comes to workers' compensation, a barrier to claim closure.

In 2009, the Centers for Medicare and Medicaid Services (CMS) announced the intent to review future prescription drug treatment in workers' compensation Medicare Set-Aside (WCMSA) proposals based on "appropriate medical treatment" as defined by a treating physician. History will show that announcement, formally requiring payers to calculate the lifetime medical expense based on the current treatment regimen, was the official wake-up call to the industry of the human and financial cost of these dangerous and clinically inappropriate polypharmacy regimens. Since then, there has been an ongoing struggle to find the best method to balance the clinical needs of injured employees and the egregious financial cost often associated with their drug therapy.
 
The goals, and corresponding solutions, have evolved over time based on the perceived expectations of CMS via its memos. At first an opinion that the drug(s) were clinically inappropriate was enough for CMS to remove them from the WCMSA calculation. Then it required the treating physician to confirm the drug(s) were inappropriate with an intention to taper. Then it required the drug(s) to at least be in the process of being tapered. Then it required the drug(s) to have been tapered with a track record of no relapse over at least six months. While the solutions have evolved over time based on experience, it really comes down to a single phrase ...
 
#CleanUpTheMess
 
The "mess" is the clinically inappropriate polypharmacy regimens that have caused harm to the health of the injured employees and financial harm to the payers. Cleaning it up is difficult and dangerous.
 
Matt Ganem, a recovering OxyContin and heroin addict, described the withdrawal symptoms as "physical and mental torture, coming undone at the seams, crawling out of your skin, like living in Hell." Neither tapering nor detoxification should be attempted without adequate medical supervision or appropriate safeguards. Every individual has a different response based on the drug regimen, medical condition, body chemistry, and psychosocial considerations so predicting the journey and outcome of the process is extremely challenging.
 
And, tapering is just the beginning of recovery.  The drugs, presumably prescribed to help the injured employee deal with the residual pain and other co-morbid conditions, will need to be replaced by other management mechanisms. Generally classified as coping skills, these are methods by which the injured employee lives with the highest possible function and quality of life. Historically, work comp has not (voluntarily) paid for treatments such as cognitive behavioral therapy, yoga and Pilates, acupuncture, biofeedback, mindfulness, or gym memberships. Often the duration of active treatment like physical therapy or chiropractic care have been constrained by maximum number of visits. The concepts of family support, socioeconomic conditions, and other human factors have historically been ignored. However, that evolution through experience has led to an increased acceptance of the bio-psycho-social model. And that has led to an understanding that in order to reduce/remove clinically inappropriate drugs with some level of certainty that they will not return at some point in the future, the whole person - mind, body, soul - needs to be addressed.
 
Is this approach more difficult and complex? Absolutely. Will this process take more time and possibly require even more patience? Probably. Might this process cost more money up-front? Likely. Will injured employees and/or prescribers always be willing participants? No. Does the overall process require strategy, planned in advance? Yes.
 
But is it the right thing to do? Without a doubt, for both the personal health of the injured worker and the financial health of the employer.
 
Since the advent of the opioid epidemic in the mid-1990s and its direct impact on work comp, the issue has grown in scale, gradually, but steadily. It took many years to reach the crescendo for the entire industry, and the entire country, to say "enough." Now comes the hard part. #CleanUpTheMess.
 
Mark Pew, Senior Vice President of PRIUM, has been focused since 2003 on the intersection of chronic pain and appropriate treatment. That ranges from the clinical and financial costs of opioids and benzos, to the corresponding epidemic of heroin use, to the evolution in medical cannabis. Educating is his job and passion. Contact Mark at mpew@prium.net, on LinkedIn at markpew, or on Twitter @RxProfessor.
 
 

By: Daniel Anders, Esq.
       Chief Compliance Officer, Tower MSA Partners
 
Another unsuccessful effort at passage of WCMSA reform legislation in the recently concluded 114th Congress has not lessened Doug Holmes' drive to advocate for a bill he and his coalition believe will improve the WCMSA review process for claimants, carriers, employers and even CMS.  Mr. Holmes, President of Strategic Services on Unemployment & Workers Compensation, or UWC, has been the leader of a now more than decade long initiative to pass legislation impacting the CMS WCMSA review process.  UWC represents the interests of the business community on unemployment insurance and workers' compensation public policy issues.
 
The most recent UWC drafted bill, introduced in Congress as HR 2649, sponsored by Rep. David Reichert G. [R-WA] and as S 1514, sponsored by Senator Rob Portman (R-OH), called the "Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act of 2015," officially died at the end of 2016.  Nonetheless, in a recent interview, Mr. Holmes emphasized his dedication to working with these same sponsors, who were recently re-elected, to re-introduce a bill in 2017.
While the new bill has yet to be re-introduced, Mr. Holmes indicated it will largely remain the same with some modifications.  The primary elements of the legislation are described below.
 
It creates an exemption from considering future medical in the following cases:
  • Total workers' compensation settlements of $25,000 or less
  • No settlement of future medical or medical is left open
  • The clamant is not a Medicare beneficiary or has a reasonable expectation of becoming a Medicare beneficiary within 30 months.
In regard to the monetary threshold (proposed at $25,000), Mr. Holmes says the purpose here is to exempt "settlements in which future medical is so small that it is not cost justifiable to spend the time to do an MSA."
 
Where an exemption is not applicable, the bill introduces the concept of a Qualified Medicare Set-Aside (QMSA).  As Mr. Holmes states, "a QMSA is intended to enable the parties to a settlement to assure that the settlement meets future medical obligations without going through the WCMSA submission process."  The bill provides that the QMSA will be based on a reasonable projection of Medicare-covered future medical care, but still limited to medical care payable under the state WC law.
 
Mr. Holmes explained that the QMSA inserts a third option, based on the settling parties risk level, for protecting Medicare's interest in future medical.  The three options or levels would be as follows:
  1. Complete a non-submitted MSA or just allocate a portion of the settlement to future medical and "take on the risk yourself."
  2. Complete a QMSA pursuant to the statutory provisions, which, assuming the QMSA was written pursuant to the statutory provisions, "reduces your risk" of Medicare not accepting the QMSA at a later date.
  3. Complete and submit the MSA with CMS approval of the MSA "virtually eliminate risk."
In addition to the QMSA, the bill provides for an optional proportional adjustment for compromise settlement agreements.  Per the bill, parties to a settlement agreement "may elect to calculate the Medicare set-aside amount of the agreement by applying a percentage reduction to the Medicare set-aside amount for the total settlement amount that could have been payable under the applicable workers' compensation law or similar plan involved had the denied, disputed, or contested portion of the claim not been subject to a compromise agreement.  The percentage reduction shall be equal to the denied, disputed, or contested percentage of such total settlement."
 
Mr. Holmes explained how this provision would work in operation: "I have a back injury claim but we have evidence that it was not on the job.  Question as to whether the claim is compensable.  There is no real WC liability.  In such a case, if they claim $100,000, but they settle it for $25,000, you shouldn't have Medicare's interests based upon the $100,000, which is what they do now.  There should be an amount that is more reasonable and consistent with the state WC statutes.  Medicare's proportionate share should be reduced as well."
 
Implementation of a formal appeals process is another primary provision of the bill.  It requires CMS to review a submitted MSA within 60 days and provide an approval or disapproval along with an explanation.  Failure of CMS to do so allows the party submitting the MSA to file an appeal within 30 days directly to an Administrative Law Judge.  If CMS issues a disapproval within the 60-day timeframe then a multi-step appeals process is in place allowing for a reconsideration (with a decision by CMS in 30 days), hearing before an administrative law judge (with a decision by the ALJ within 90 days) and ultimately judicial review before the federal courts.
 
Mr. Holmes explained, "the appeals provision is designed with the stakeholders in mind.   We are worried about timeframes.  We prefer not to have to go to an on the record hearing, but if it is going to a hearing we do not want it hanging for two years waiting for a hearing a settlement that needs to be finalized now.  Just having the right to an appeal has value at assuring an expedited review at the lower level."
 
Besides the right to an appeal, one of the core provisions of the bill is the requirement that CMS abide by the workers' compensation law of the jurisdiction in which the workers' compensation agreement is finalized.  "CMS will have to learn the law of all the states," says Mr. Holmes.  But it makes it easier to finalize the state WC settlement when you have a statutory duty on the part of CMS to follow the state law."
 
The bill also includes an option for direct payment of a CMS approved or QMSA to CMS, but keeps in place self and professional administration.
 
Mr. Holmes advised that CMS has reviewed the bill and provided what is called "technical assistance."  Technical assistance allows Congress to ask a government agency to review and provide expert technical feedback on a bill without taking an official position. It provides Congress with an understanding of how the agency believes the bill will impact current law, regulations and the agency's processes.
 
According to Mr. Holmes, CMS has raised a concern that creating a $25,000 threshold exemption for considering Medicare's interests as well as the other identified exemptions in the bill would result in a negative impact on the Medicare Trust Fund.  In response to this issue, Mr. Holmes advised that the UWC is "working through some numbers from stakeholders and CMS to demonstrate that the exemptions result in minimal impact to CMS."  UWC is also "considering statutory language that would place it in the hands of CMS to determine exclusionary threshold, similar to what was inserted for Section 111 reporting thresholds." 
 
Mr. Holmes refers to the SMART Act provisions which mandate CMS annually determine the cost of conditional payment recovery versus the amount recovered such that CMS is not spending more money to recover than it is actually recovering.  CMS must set in place a minimum threshold for Medicare conditional payment recovery in liability, currently set at $750 and optionally set in place a minimum threshold for Medicare conditional payment recovery in workers' compensation, also currently set at $750.
 
Another concern raised by CMS is that any threshold or exemption for future medical not be explicitly or implicitly considered a threshold or exemption from Medicare conditional payment recovery by CMS.  In response, Mr. Holmes states they are "making sure the definitional terms are clear between future medical and conditional payments in a revised bill."
 
CMS has expressed their concern that requiring CMS to abide by state WC law in the allocating of future medical care could lead to inadequate funding of the MSA.  Mr. Holmes responded that this is one of the core components of the bill and that "the sponsors of the bill understand and support the importance of the language requiring CMS to abide by state law."  Further, Mr. Holmes believes that President Trump's nominee for Secretary of the Department of Health and Human Services, Representative Tom Price, "is comfortable with the idea of the state controlling its own WC settlements."
 
For a Qualified MSA, Mr. Holmes acknowledges that there is a question as to whether CMS is obligated to accept it as appropriately considering Medicare's interest without utilizing the WCMSA Review process.  He compares this provision to filing an income tax return.  "I fill out the form and do what I am supposed to do and go through my due diligence and it is accepted or not accepted based upon whether it is consistent with what the law requires."  "There is no requirement that the IRS review our tax return before it is submitted."
 
Mr. Holmes expects reintroduction of a somewhat modified bill this year.  He believes given the bipartisan support "we are in a good position moving into this Congress to get favorable consideration to the bill."  Besides bipartisan support of the bill, Mr. Holmes pointed to a "very broad based coalition" which is advocating on behalf of its passage.  This includes the American Insurance Association (AIA), the Property and Casualty Association (PCI), the National Council of Self-Insurers (NCSI), a number of self-insured companies and some MSA vendors. 
 
When asked why past attempts at enacting legislation have failed, Mr. Holmes responds that in Congress, "MSP is a small issue compared to larger issues impacting Medicare."  Also, "you have an initial barrier to overcome with the Congressional staff, and that is understanding of MSP and particularly WCMSAs."  Mr. Holmes pointed to sponsors of prior WCMSA reform legislative efforts having left Congress, resulting in the UWC having to start over again with new sponsors of the bill.
 
Despite unsuccessful past efforts, Mr. Holmes remains optimistic of bill passage in 2017.  He believes the bill's provisions requiring "timeliness, certainty of definition, right to appeal, direct payment options and requirements that the applicable WC law will streamline the process of WCMSA reviews and provide a fairer and more reasonable outcome.  This bill gives certainty as to what needs to be done."
 
Mr. Holmes "welcomes the support of NAMSAP members" to advocate on behalf of the bill.  NAMSAP members interested in more information regarding the WCMSA reform legislation or who would like to join the advocacy efforts can contact Doug Holmes at holmesd@uwcstrategy.org or (202) 223-8904. 
 
Note, the NAMSAP Board of Directors has taken a neutral position regarding the UWC's legislative efforts.

 

 

The Evidence-Based Medicine Committee continues to forge ahead in its efforts to reduce our industry's footprint in the opioid epidemic by bringing evidence-based medicine to the handling of opioids in the MSA.  In follow-up to the call to action at our Annual Meeting this year, the Evidence-Based Medicine Committee plans to provide a template argument against the use of long-term opioids for the management of chronic, non-malignant pain for use in WCMSA submissions by its members. 

 
The EBM Committee also plans to follow up with Part 3 of its webinar series on opioids in the MSA, concluding with not only a call to action, but hopefully a legislative update.  Committee members continue to work with CMS and the Surgeon General's office to effectuate change in this area, whether that be through a change in policy or a change in the WCMSA Reference Guide.

If you have any interest in joining the fight, the Evidence-Based Medicine Committee generally has monthly calls on the third Monday of the month.  Given the President's Day holiday, the next call will be February 27, 2017 at 3:00 p.m. Eastern time.  Please e-mail Lisa@namsap.org to request your name be added to the Committee list and receive updates and e-mails.


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