Medical groups and health lawyers are calling on the government to give hospitals more time and clarity as they hustle to report how they spent governmental pandemic assistance money by an approaching deadline.
The delta variant has hit an already overburdened health-care workforce hard, with hospitals losing money and staff leaving the industry at a time when theyâre needed most.
The more than $120 billion distributed via the Provider Relief Fund supports those âon the front lines who have experienced lost revenues and expensesâ due to the Covid-19 pandemic, a spokesperson for the Health Resources and Services Administration, part of the Department of Health and Human Services, said.
But regulations around how the money would be distributed, spent, and accounted for have changed several times since the pandemic began. The revisions have been difficult to keep track of, even though some of the changes and increased flexibility have benefited providers, health lawyers said.
HHS recently offered providers subject to a Sept. 30 reporting deadline a 60-day grace period as part of an announcement that the department would release $25.5 billion additional funds to providers.
The deadline used to be 30 days after a provider received payments, but in June, the HHS pushed it back to 90 days. While the HHS still recommends that hospitals comply with the Sept. 30 deadline, it will not penalize hospitals that donât during the grace period.
The grace period, while helpful, still wonât solve the many problems providers are facing related to the pandemic assistance fund, said Claire Ernst, director of government affairs for the Medical Group Management Association.
âElective procedures are starting to get canceled again,â Ernst said. âTheyâre losing staff that they canât retain.â The reporting deadline âis just an additional burden to worry about and theyâre just too busy trying to treat patients,â Ernst said.
Providers including hospitals, nursing facilities, and childrenâs hospitals are eligible for pandemic assistance funding if they care for patients âwith possible or actual cases of Covid-19,â and have expenses and lost revenues due to the pandemic, according to HRSA.
The providers that received more than $10,000 in one of four payment periods need to report how they spent their assistance funds, and how much revenue they estimate they lost due to the pandemic. Providers are subject to different deadlines based on when they received money, and providers receiving money in multiple payment periods need to report multiple times. Sept. 30 is the earliest deadline, which about 126,900 providers must meet because they received more than $10,000 from April-June 2020, an HRSA spokesperson said.
The current deadline is the result of prioritizing âmaximum flexibility for recipients and strong program integrity and safeguards for the use of taxpayer dollars,â an HRSA spokesperson said.
How much time it takes a hospital to report depends on their size and how proactive they were about holding onto financial statements, said Mark Polston, a health-care partner at King & Spalding. Many hospitals that âwere probably not ahead of the curb in setting up those accounting systemsâ are now âplaying catch up trying to go back and determine what expenses they had and whether or not they fit into the coronavirus expense bucket or not,â he said.
Inputting the information into the portal itself should take just a few hours, said Jed Roebuck, a Chambliss Bahner & Stophel PC shareholder.
But preparing to report the informationâincluding performing accounting work, consulting with legal counsel, and staying on top of changes in regulationsâcan take âhundreds of hours,â said Chad Mulvany, vice president of federal policy for the California Hospital Association.
Thatâs why the MGMA is advocating for extending the reporting deadline to March 2023. Collapsing the four separate deadlines into one cumulative dateâthe same date the last group of providers needs to report spending byâwould save providers who received funding in multiple periods from having to report it for each period.
The guidelines have some âgray areasâ which make it difficult to make sure providers are interpreting them the same way HHS will, Polston said.
For example, it can be difficult to figure out what justifies as a Covid-19-related expense. âIf you need to purchase a ventilator in order to provide ventilating assistance to Covid patients, thatâs an obvious expense relating to the coronavirus,â Polston said. Estimating how many mask or gown purchases were related to Covid-19 is harder.
HHS has a website with fact sheets, guides, and question and answers, as well as a provider support line for specific questions.
The HHS âis committed to helping providers understand the reporting requirements so that they may complete their reports successfully,â the HRSA spokesperson said.
Providers could be audited after they report how they spent the money. Hospitals should âkeep their receipts,â should they need to justify their methodology to an auditor, said Joanna Hiatt Kim, vice president of payment policy and analysis for the American Hospital Association.
Providers who fail to submit a report by the end of the grace period will have to return ârelevant fundsâ within 30 days, the HRSA spokesperson said.
The grace period may help some providers who are still working on their reporting, or who have been impacted by âextreme and uncontrollable circumstancesâ such as Hurricane Ida, the AHA wrote in a Sept. 24 letter to HRSA Acting Administrator Diana Espinosa.
But announcing it so soon before the deadline isnât likely to have much of an impact on most providers, Roebuck said.
What would help is more funding, Mulvany said. The $25.5 billion, while much appreciated, âdoesnât cover the need nationally.â Hospitals are paying inflated wages to keep staff, particularly nurses, which is becoming âunsustainable,â Mulvany said.
Hospital groups like the AHA are also advocating for more time to use their funding. The deadline to spend the money given out in the first round was June 30, but the AHA said that extending the deadline until the public health emergency ends would be more reasonable.
Although the deadline has now passed, âitâs definitely not a done deal,â Hiatt Kim said. The AHA will continue advocating for an extension, she said.
For providers weary of being told that there are more changes they must absorb, even those that are beneficial, finishing up the filing will bring a sense of relief, Roebuck said.
âI think most folks are just over it,â he said.
Those who got spring 2020 relief funds must report by Sept. 30. Deadline seen as âadditional burdenâ for short-staffed hospitals.
Medicare, Medicaid, and the Childrenâs Health Insurance program will pay the full cost of Covid-19 booster shots with no cost-sharing for nearly all beneficiaries, the Biden administration announced Friday.
âThe Biden-Harris Administration has made the safe and effective COVID-19 vaccines accessible and free to people across the country. CMS is ensuring that cost is not a barrier to access, including for boosters,â Chiquita Brooks-LaSure, administrator of the Centers for Medicare & Medicaid Services, said in a statement. âCMS will pay Medicare vaccine providers who administer approved COVID-19 boosters, enabling people to access these vaccines at no cost.â
The Food and Drug Administration has authorized a booster dose of the Pfizer vaccine for certain high-risk groups, and a Centers for Disease Control and Prevention advisory panel unanimously backed the shots for those aged 65 and up.
The panel voted against them for people ages 18 to 64 in jobs or settings where theyâre at risk of becoming infectedâa group that includes tens of millions of people and encompasses health-care staff and retail workers. But CDC Director Rochelle Walensky later overruled the panel, restoring the 18-to-64 workplace category to the eligible groups.
Medicare beneficiaries already pay nothing for the vaccines or their administration. And nearly all Medicaid and CHIP beneficiaries receive the same coverage. Covid vaccines and booster shots are also covered by most commercial insurers as well.
The CMS âcontinues to explore ways to ensure maximum access to COVID-19 vaccinations,â the CMS statement said.
WSC Report: House Democrats Finalize Reconciliation PackageWSC | Sept. 24 20, 2021
Hospitals Worried About Surprise Billing Networks, DeadlineBloomberg | Sept. 23, 2021
Why 4 budget issues are causing so many problems on Capitol HillPolitico Pro | Sept. 23, 2021
IGâs Handling Of 340B Opinion Could Help HRSA In CourtInside Health Policy | Sept. 23, 2021
Greater Scrutiny of Payments to Private Medicare Insurers UrgedBloomberg | Sept. 22, 2021
Hospitals overwhelmed by covid are turning to âcrisis standards of care.â What does that mean?Washington Post | Sept. 22, 2021
Employers on Hook for Mental Health Parity Despite New TargetBloomberg | Sept. 22, 2021
Long-Term Care Providers Get New Look at Medicare Bad Debt PayBloomberg | Sept. 21, 2021
Reopening Medicare Reimbursement Review Bars Later Agency AppealBloomberg | Sept. 20, 2021
Pallone Wants Bipartisan Effort To Avert Doctor Pay Cuts â But Not NowInside Health Policy | Sept. 20, 2021
WSC has selected, and provided links, to particular WSC policy briefs and news articles from the past week that our clients may have missed.
On September 15, 2021, House Democrats completed the enormous undertaking of translating President Bidenâs economic agenda into a $3.5 trillion tax-and-spending proposal: the Build Back Better Act. The measure seeks to shepherd major changes to federal health care, education, immigration, climate, and tax laws, introducing a sprawling set of federal programs representing a range of Democratic priorities.
Thirteen committees approved legislation to be included in a reconciliation package that can be used to try and pass Democratsâ policies without Republican support. The FY 2022 budget resolution (S. Con. Res. 14) adopted in August gave the panels until September 15 to report legislation that would increase or decrease the deficit by specified amounts over 10 years.
On September 24, the House Budget Committee released draft text in advance of the panelâs September 25 markup of the social spending package. According to Budget Chair John Yarmuth (D-KY), the committee is holding the rare Saturday markup at the request of House Speaker Nancy Pelosi, who asked Yarmuth to move the procedural process along. The price tag and parameters of the package are still very much in flux as the House approaches critical deadlines next week.
This WSC Brief outlines the major health care and employer-related provisions included in the reconciliation package.
Create a âFair Price Negotiation Programâ for the Centers for Medicare and Medicaid Services to negotiate the price of 250 covered drugs and insulin. Prices couldnât exceed 1.2 times the average price of the drug in six other countries. They would also be available to private insurance plans. Drugmakers that donât negotiate successfully would face an excise tax of as much as 95%. Those that charge more than the negotiated maximum price would pay as much as ten times the difference in prices. The measure would also:
American Rescue Plan Act (ARPA) Subsidies: Makes two of the three ARPA subsidy enhancements permanent and extend the third through 2025. Collectively, these changes expanded the availability of premium tax credits (PTCs) to millions more people by eliminating the ACAâs subsidy cliff at 400 percent of the federal poverty level (FP) and bolstering existing subsidies for those who already qualified. This would allow ARPA subsidies to continue to flow to:
Reinsurance Program: Provides $10 billion annually for a fund to provide reinsurance payments to insurers operating in marketplace exchanges and assistance to individuals to reduce out-of-pocket costs.
Family Glitch: Addresses the so-called âfamily glitchâ (also known as the âemployer firewallâ) and revises the threshold to determine whether a taxpayer has access to affordable insurance through an employer-sponsored plan or a qualified small employer health reimbursement arrangement.
8.5 percent. The legislation would explicitly eliminate the indexing requirement (so the 8.5 percent requirement would not increase over time). This change would go into effect beginning with the 2022 plan year.
MAGI and Social Security Benefits: Amends the calculation of modified adjusted gross income for purposes of calculating PTC eligibility to exclude lump-sum Social Security benefits.
Dental and Oral Health Care: Beginning Jan. 1, 2028, provides Part B coverage for the following:
Hearing Care: Beginning Oct. 1, 2023, provides Part B coverage for hearing aids for individuals with severe or profound hearing loss. Limits payments made for hearings aids to only once in a five-year period and only for hearing aid types that are not over the counter.
Vision Care: Beginning Oct. 1, 2022, provides coverage of routine eye exams, glasses and contact lenses.
Medicare Part D Benefit Redesign: Beginning in 2024, this bill caps the cost for prescription drugs by setting the annual out-of-pocket limit at $2,000. Reduces from 80% to 20% the government reinsurance in the catastrophic phase of Part D coverage, converting the current coverage gap discount program into a benefit-wide responsibility, requiring manufacturers of single source drugs to contribute to payments in both the initial (10%) and catastrophic phases (30%) of the benefit.
Medicaid Gap: The measure would close the Medicaid coverage gap for lower-income individuals in states that didnât expand the program under the Affordable Care Act by:
Spousal Impoverishment: Permanently extends protections against spousal impoverishment for partners of Medicaid beneficiaries who qualify for long-term care and choose to receive home- and community-based services.
Money Follows the Person: Permanently extends the Medicaid Money Follows the Person Rebalancing Demonstration Program, which authorizes CMS to award state grants to assist Medicaid participants transition from long-term care to a home setting. Allocates $450 million in grant funding for each fiscal year following FY 2021. Allocates $500 million allotments for each three-year period beginning in FY 2022 for technical assistance and oversight to upgrade quality assurance and improvement systems.
Pregnant and Postpartum Women: Under ARPA, states were allowed the option to expand Medicaid/CHIP postpartum coverage from the initial 60 days to cover the 12month period following pregnancy. This provision requires state Medicaid programs to provide 12 months of full, continuous Medicaid/CHIP eligibility to postpartum women. Effective the first day of the first fiscal year quarter beginning at least one year following enactment.
Continuous Eligibility for Children: Builds upon the Medicaid disenrollment freeze implemented under the CARES Act to provide a full year of continuous Medicaid/CHIP coverage for children.
CHIP Extension: Makes the Childrenâs Health Insurance Program (CHIP) permanent and appropriate âsuch sums as are necessaryâ for it. It also would allow states to increase the income level needed for families to participate in CHIP and require states to provide one year of continuous eligibility for children enrolled in CHIP.
CHIP Eligibility: Provides states and territories with the option to increase CHIP income eligibility levels above the existing statutory ceiling, potentially increasing the number of eligible families for the program.
HCBS Improvement Planning Grants: Appropriates $130 million for FY 2022, to remain available until expended, for states to develop plans to expand access to home- and community-based services (HBCS) and strengthen the HCBS workforce. This includes $5 million for technical assistance and guidance to states. Sets a deadline of 12 months after the billâs enactment for the Secretary to solicit state requests for and award grants to all states that meet the determined requirements.
HCBS Improvement Program: Provides states with a permanent 7 percentage point increase to the federal medical assistance percentage (FMAP) if the state implements an HCBS improvement program to strengthen and expand HCBS, and provides an enhanced FMAP of 80% for administrative costs associated with improving HCBS.
Provides a two-year increase to the FMAP of 2 percentage points if a state adopts an HCBS model that promotes self-direction of care and meets certain other requirements. Caps the FMAP at 95% in all cases.
Technical Assistance for HCBS: Appropriates $35 million for FY 2022, to remain available until extended, for HHS to prepare and submit a report to Congress within four years of the billâs enactment on the implementation and outcomes of state HCBS improvement programs.
Maternal Mortality: Includes $830 million in new funding to address maternal mortality, including:
GME Residency Slots: Creates a new program that would fund 1,000 scholarships per year for medical students from rural and underserved communities if they agree to practice in those communities after graduating.
Scholarships: Funds 1,000 new residency slots per year, beginning in 2026, for medical schools that commit to providing cultural competency training, training in the community and increased mentorship for students.
Medical School Funding: Includes $1 billion in funding for medical school construction, expansion and training in underserved communities that lack quality access to quality health care.
VA GME: Provides 700 new health care residency positions at VA medical centers through FY 2029.
health information, health information systems and health information analysis; disease surveillance; contact tracing; among other activities.
Paid Leave: Provide up to 12 weeks of paid leave for eligible workers for the birth or adoption of a child, a personal health condition, caregiving for a family member, circumstances related to a family memberâs deployment, and bereavement. Benefits would be administered by the Treasury Department and would begin in July 2023.
Advance Refunding Bonds: Restores a tax exemption for interest on advance refunding bonds, which was repealed by the 2017 tax overhaul (Pub. L. 115-97). State and local governments used those bonds to refinance their debt and access lower interest rates.
Retirement: Requires employers with more than five workers to automatically enroll new hires for retirement benefits. Employees could choose to opt out of the savings plan or modify contributions. Employers would be subject to an excise tax of $10 per day for each employee who isnât covered by an automatic retirement plan.
The Ways & Means package includes sweeping tax changes to raise revenue for other portions of the package, including:
Other tax provisions in the Ways & Means measure are designed to aid certain households and industries, such as:
The Ways & Means legislation includes several tax changes related to infrastructure financing and community development, such as:
America Bonds under the 2009 American Recovery and Reinvestment Act (Pub. L. 111-5). The credit would be 35% of interest paid for bonds issued from 2022 through 2024, phasing down to 28% for bonds issued in 2027 and later years.
The Biden administrationâs first rule implementing a landmark 2020 law aimed at protecting patients against high hospital and doctor bills in emergencies and other situations will lower costs for patients, a group that represents large employers said.
But hospitals are worried the No Surprises Actâs rules wonât get at the real problem driving surprise billingâinadequate health-care networksâand they also say the lawâs implementation dateâJan. 1, 2022âis too soon to get procedures into place.
The way the interim final rule (RIN 0938-AU63) for the law, published July 13, defines how the qualifying payment amount is calculated is the basis on which a patientâs share of a bill is calculated.
The amount will be based on rates averaged at the contract level, lowering lower costs for patients, the ERISA Industry Committee (ERIC) said this month in a comment letter. ERIC represents large employersâ interests as sponsors of employee benefit plans.
Employer groups, which cover about 150 million Americans, were generally happy with the first rule the Health and Human Services Department issued to implement the law that passed as part of appropriations legislation (H.R. 133) in December 2020. But the most important rule, determining how rate disputes between health plans and health-care providers are to be settled, isnât due until Dec. 27.
The interim final rule was issued by the HHS, the departments of Labor and Treasury, and the Office of Personnel Management.
ERIC warned that billing disputes shouldnât be used as chances to ramp up costs.
Under the law, doctors and hospitals are barred from billing patients more than they would pay for in-network care in emergencies and when patients receive treatment from out-of-network providers at in-network facilities.
If a billing dispute between health-care providers and payers goes to arbitration, ERIC said, the qualifying payment amount should be the primary consideration for arbitrators when determining final payment for out-of-network care.
The independent dispute resolution process (IDR) for resolving disputed bills should not become âan opportunity for inflating costs,â ERIC said.
âRampant misuse of the IDR process in states such as New York, Texas, and New Jersey, shows how bad actors take advantage of the IDR process to bolster bottom lines at the patientsâ expense,â it said.
Hospitals, meanwhile, are concerned that the lawâs rules wonât do enough to ensure the adequacy of health-care networksâcentral to avoiding out-of-network billing in the first place.
Provider networks could be disrupted âif plans and issuers are able to pay less for services under the provisions of the No Surprises Act than by contracting at commercially reasonable rates with providers and facilities,â the American Hospital Association said in a letter to top officials at OPM, the IRS, and the departments of HHS, Labor, and Treasury.
Already, gaps in network adequacy standards have contributed to plans and insurers excluding providers from networks, pushing costs onto patients and making it harder to access and coordinate care, the AHA said.
Large, self-insured employer-sponsored health plans regulated under the Employee Retirement Income Security Act (ERISA) already arenât subject to network adequacy rules, and requirements for fully insured health plans sold directly by insurers often donât address some providers, such as anesthesiologists, radiologists, and laboratories, the AHA argued.
Those groups are often the groups that have been sending surprise bills to patients for out-of-network servicesâeven when a procedure is held at an in-network facility.
Such risks âwill continue to exist even once the No Surprises Act provisions go into effect,â the AHA wrote.
âThe law does not address every instance of out-of-network care, nor does it address instances where plans or issuers label a provider as `in-networkâ but then fail to cover medically-necessary services delivered by that provider, a form of network inadequacy not fully accounted for in existing rules,â it said.
Others point to concerns about applying the new lawâs rules, no matter how far they do or donât go.
âItâs going to be an operational nightmareâ given differing laws in many statesâ that address surprise billing, Isabel Bonilla-Mathe, an associate with Phelps Dunbar LLP, said in an interview. Bonilla-Mathe represents hospitals and individual health-care practitioners.
The implementation deadline will be difficult to meet, Bonilla-Mathe said. The major rule that specifies how billing disputes will be resolved isnât due until the end of this year, and it isnât clear how that rule will work with the interim final rule, she said.
Time is also needed to educate staff and set up patient communications about bills that are required by the law, Bonilla-Mathe said.
Hospitals are concerned about how the qualifying payment amount is calculated, Amanda Hayes-Kibreab, a partner at King & Spalding who represents hospitals and providers, said in an interview.
Part of the concern is âwhat contracts are being used for the median calculationâ that arbitrators must use to settle disputes, Hayes-Kibreab said. The departments have focused on network agreements, she said.
âThere are a lot of agreements that might have rates for services that are not necessarily network agreements, and how might those be used,â she said. âThereâs some more clarity thatâs needed there.â
Those can include agreements between providers and payers that may cover a single service or emergency services not in the insurersâ networks, Hayes-Kibreab said.
As the end of the fiscal year nears, a host of deadlines are staring down lawmakers on Capitol Hill with no easy answers on how to meet them. Despite controlling both chambers of Congress, Democratic leaders are finding themselves needing to rely on both Republicans and the left wing of their own party.
HHS on Wednesday (Sept. 22) asked the HHS Inspector General to investigate six drug companies that restrict 340B discounts to pharmacies with which hospitals contract. The move, which could result in fines, is the Health Resources and Services Administrationâs latest gambit to get drug companies to comply with its interpretation of a vague law, this time by seeking a favorable IG opinion that could influence pending court cases, a hospital lobbyist said.
During the Trump administration, the HHS general council issued an advisory opinion that stated drug companies must give discounts to hospitals in the 340B program no matter how many contract pharmacies dispense those drugs. Drug companies ignored that opinion and sued over it. In May, Bidenâs HRSA threaten to fine companies that donât comply with the advisory opinion, but so far the courts have not been sympathetic to HHS. In rejecting the Biden administrationâs request to dismiss a lawsuit against the advisory opinion, a federal judge said the law is vague and HHSâ advisory opinion is a departure from previous policy. HRSA then withdrew the advisory opinion but said it would still fine companies that donât follow the advisory opinion.
Which brings us to HRSAâs referral of six companies to the IG for fines. If the IG says contract pharmacies are an extension of hospitals, that might help the government in lawsuits filed by drug companies against HRSAâs enforcement actions.
The problem is that neither the law nor regulations mention contract pharmacies. Instead, HRSA is trying to enforce its stance through guidance.
Congress could fix the problem by adding contract pharmacies to the law, but despite the lip service in support of hospitals from many lawmakers in both parties, Congress has shown no interest in including such a measure in the drug pricing legislation it is writing. Some question the need for the 340B program if Medicare were to negotiate prices.
A government watchdog agency is calling for greater oversight of 20 private Medicare Advantage plans that received a disproportionate share of $9.2 billion in enhanced payments in 2016 that were based on potentially suspect patient diagnoses.
The Health and Human Services Office of Inspector Generalâs report released Wednesday said the enhanced ârisk-adjustedâ payments were generated through both âchart reviewsâ of patient records to âidentify diagnoses that a provider did not submit or submitted in error,â and through âhealth risk assessments,â in which someone whoâs usually uninvolved in the patientâs care visited their home and evaluated their medical conditions.
The report follows a similar OIG report last year that called on the Centers for Medicare & Medicaid Services to tighten oversight of Medicare Advantage payments based on health risk assessments.
In 2020, 40% of Medicare beneficiariesâ25 million peopleâreceived program coverage through Medicare Advantage plans, in which private insurance companies receive a set payment to cover each enrolleeâs projected cost of care. The plans receive higher ârisk-adjustedâ payments for sicker beneficiaries with more projected medical costs. The Medicare Advantage plans accounted for $314 billion of Medicareâs $780 billion in program costs in 2020, according to the CMS.
Of 162 MA plans receiving payments based solely on chart reviews and HRAs in 2016, 20 plans generated $5 billion from chart reviews and health risk assessments (HRAs) that were the sole source of diagnoses in the encounter data. Thatâs 54% percent of the $9.2 billion in total program payments from chart reviews and HRAs, even though the 20 plans enrolled only 31% of MA beneficiaries, the report found. And half of the â20 companies drove payments mainly using the types of chart reviews and HRAs that are more vulnerable to misuse, the report added.
âOur findings raise concerns about the extent to which certain MA companies may have inappropriately leveraged both chart reviews and HRAs to maximize risk-adjusted payments,â report said.
One unnamed Medicare Advantage plan generated 40%â$3.7 billionâof all payments based on chart reviews and HRAs, âyet it enrolled only 22 percent of all MA beneficiaries,â the report said.
In addition to recommending more oversight of the 20 unnamed Medicare Advantage plans cited in the study, the OIG urged the CMS to âtake additional actions to determine the appropriateness of paymentsâ to this lone plan. The OIG also recommended âperiodic monitoring to identify MA companies that had a disproportionate share of risk adjusted payments from chart reviews and HRAs.â
In response to the recommendation for more oversight of the 20 Medicare Advantage plans, the CMS said audits focusing on high risk plans are the âprimary corrective action to recoup overpayments.â Because of this, MA plans at âhigher risk for overpayments already have an increased likelihood of being included in audits,â the CMS said in a letter. The agency said it will take the OIG recommendation under consideration in developing policy options.
It said it would also weigh the other OIG recommendations.
The Department of Health and Human Services said Wednesday it will distribute $73 million to train public health workers from underrepresented communities and improve Covid-19 data collection.
The goal is to providing training in public health informatics and technology to more than 4,000 health workers over the next four years, the agency said in a statement.
Recipients of the funds include historically black colleges and universities, as well as colleges and universities enrolling high numbers of students who are Hispanic, Asian-American or Pacific Islanders.
The HHSâs Office of the National Coordinator for Health Information Technology will administer the program with funding from the American Rescue Plan Act of 2021.
âWhile we work to tackle the pandemic, we wonât take our foot off the gas when it comes to preparing for any future public health challenges,â HHS Secretary Xavier Becerra said in the statement. âThanks to the American Rescue Plan, we can invest in growing our nationâs public health workforce today to better meet the needs of tomorrow.â
Funding recipients will work together to develop curricula, recruit and train participants, secure paid internship opportunities, and assist in career placement at public health agencies and public health-focused organizations, according to the statement.
The program supports the Biden administrationâs efforts to âhire public health workers from the hardest-hit and highest-risk communities, as well as ensure a steady stream of diverse talent across the U.S. public health system to equip our nation for future public health emergencies,â the agency said.
The recipients are Bowie State University, California State University, Long Beach Research Foundation, Dominican College of Blauvelt Inc., Jackson State University, Norfolk State University, Regents of the University of Minnesota, the University of Texas Health Science Center at Houston, University of Massachusetts at Lowell, University of California at Irvine, and the University of the District of Columbia.
Long-feared rationing of medical care has become a reality in some parts of the United States as the delta variant drives a new wave of coronavirus cases, pushing hospitals to the brink.
Alaska and Idaho have activated statewide âcrisis standards of care,â in which health systems can prioritize patients for scarce resources â based largely on their likelihood of survival â and even deny treatment. The decisions affect covid and non-covid patients.Some health care providers in Montanahave turned to crisis standards as well, while Hawaiiâs governor this month released health workers from liability if they have to ration care.
Some states have no crisis standards of care plans, while others just created them during the pandemic. The common goal: Give health-care workers last-resort guidance to make potentially wrenching decisions. But people disagree on the best calculus.âWe only end up needing crisis standards of care when our other systems have utterly failed,â said Emily Cleveland Manchanda, an assistant professor of emergency medicine at Boston University School of Medicine.
The emergency room at Providence Alaska Medical Center in Anchorage was so packed recently that patients waited in their cars for care. Physician Kristen Solana Walkinshaw told The Washington Post last week that her team had four patients who needed continuous kidney dialysis and only two machines available.
In Idaho, health officials said, crisis care standards may mean that patients end up treated in hallways or tents. Elective and nonurgent surgeries have been delayed at one hospital. There may be fewer nurses and doctors caring for more people. Patients may wait hours to get what they need or have to transfer to another hospital far away â though health leaders caution that neighboring states are struggling with an influx of coronavirus cases, too.
The resource crunch could also force health-care workers to give beds or ventilators to those most likely to recover. If resources become extremely tight, they can consider universal do-not-resuscitate orders for hospitalized adult patients who go into cardiac arrest.
âYour care will be affected,â Idahoâs health department warned on Facebook.
Not all hospitals may need to ration treatment, but they have a green light from authorities. Officials are also sending a statewide message.
âBy announcing crisis standards of care going into effect, youâre also in essence saying to your population, if youâre a governor or a public health figure: âWeâre in an emergency. Take heed. Take warning,â â said Jacob Appel, an associate professor of psychiatry and medical education at the Icahn School of Medicine at Mount Sinai in New York.
Hospitals typically operate on a first come, first served basis. In a crisis â a hurricane, mass shooting or multicar crash, for example, as well as a pandemic surge â they must triage by prioritizing some patients over others to save the most lives.
Different plans take different approaches, but there are common themes. Most typically start by scoring the health of major organs such as the brain, heart, kidney and liver. They may take into account peopleâs chances of recovery, their life expectancy and even their âessential workerâ status.
âExclusion criteriaâ can instruct health-care workers to withhold care from certain groups â patients in cardiac arrest, for instance, or those with severe dementia. Then others are ranked with scoring systems and sometimes a series of âtiebreakers.â
Doctors ask: How badly are patientsâ organs failing? Do they have other diseases such as cancer, Alzheimerâs, or kidney damage requiring dialysis? Some plans also give priority to those who are pregnant, younger people or badly needed health-care staff. Patients are typically evaluated throughout their stay in the hospital to check if their priority should change.
Hawaiiâs point system takes stock of both short-term and long-term survival with a rubric that states two values: âSave the most livesâ and âSave the most life-years.â
Most state plans say that the doctor directly caring for a patient should not be making the call on what limited resources that person gets, according to an academic review of plans published last year. Some lay out an appeals process.
Disability rights groups have filed complaints about crisis standards of care that they argue amount to illegal discrimination, and others have raised concerns about discrimination against the elderly.
âUsing the categories of age to determine whether someone receives care is wrong. Plain and simple,â AARP Idaho State Director Lupe Wissel wrote in a recent post criticizing Idahoâs decision to make age a âtiebreakerâ for limited resources. âThe estimation of potential âlife yearsâ an individual has does not equate to the value of a life.â
Scholars also worry that crisis standards of care will feed into long-standing inequalities in access to health care, because scoring systems are allocating resources based partly on health conditions that disproportionately afflict certain groups. Black Americans, for instance, are much more likely than White Americans to have kidney disease.
Some crisis plans try to counteract these deep-rooted racial disparities: Massachusettsâs scoring system limits penalty points for a history of poor kidney function, Cleveland Manchanda said. One paper in the medical journal JAMA Network Open, which examined more than 1,000 patients hospitalized last year in Miami, found that crisis standards of care policies did not seem to discriminate based on race or ethnicity.
But compensating for societal inequalities is ânearly impossible,â Cleveland Manchanda argued.The idea of factoring in coronavirus vaccination status has drawn particular backlash from the public. A critical care task force in Texas floated the concept last month â but the authorsdismissed it as a theoretical exercise after an uproar.
Arizona and New Mexico were the only states to declare crisis standards of care earlier in the pandemic, according to an August paper published by the National Academy of Medicine.
But experts note there is more to the story. Resources have been rationed without any official shift to crisis standards.
As a winter coronavirus surge slammed Los Angeles, for instance, ambulance crews were instructed to save oxygen and to treat patients on the scene rather than bring them to the hospital when they had little hope of survival.
â[Some] areas that were clearly in crisis related to ventilators, oxygen, or other resources, where painful triage decisions had to be made, never received a formal declaration authorizing [crisis standards of care],â the National Academy of Medicine paper says, attributing the phenomenon in part to âpolitical concerns.â
In Arizona and New Mexico, meanwhile, health-care facilities did not apparently end up rationing ventilators despite the state declarations, the paper said.
The 2009 H1N1 flu pandemic prompted a nationwide push to create clear plans for divvying up medical resources in times of overwhelming need. Federal officials asked the health arm of the National Academy of Sciences to craft guidelines.
But crisis standards of care vary widely by state.
More than half of states had explicit plans last year, though some of those leave key questions to hospitals, researchers found. And more than a dozen of those statesâ crisis standards of care were crafted or updated in 2020, the researchers wrote. Idahoâs policy was still in the works as the scholars did their survey.
Arkansas is finalizing a covid-19-specific crisis standards of care policy, said Jerrilyn Jones, the state health departmentâs medical director for the health preparedness and response branch. The state also wants a more general policy, but Jones noted that those can take years to develop.
âAs with all disaster planning, people donât really think about the need for such things until it hits you in the face,â she said in an interview.
For now, hospitals have their own plans, Jones said. She said she has not heard of people in Arkansas being turned away from care, though some places have tried to conserve resources by halting elective surgeries.
The statewide guidance under development will still leave much of the decision-making to local institutions. Jones emphasized that each hospitalâs situation is different.
âI donât think it would be appropriate for us as a state to dictate what is happening at the bedside,â she said.
Ariana Eunjung Cha and Meryl Kornfield contributed to this report.
Health insurance companies are now in the crosshairs of the Department of Laborâs aggressive enforcement of mental health parity, but itâs unlikely to mean employers will escape scrutiny.
In what appeared to be a first for the department, it initiated litigation last month against an insurer to ensure health plans offering mental health and substance use disorder benefits are covering treatments at the same level as physical or surgical health care.
Although the action, which was quickly settled, signaled a significant shift in the policing of parity, benefits attorneys say employers arenât off the hook.
Kathryn Bakich, who leads the national health compliance practice for benefits and human resources consulting firm Segal, said her clients still feel as though Labor will go after them to get to insurers, which serve as third-party administrators of their health plans.
âThey donât necessarily have a direct line to the administrator, so theyâre coming after the employer who doesnât even set these policies and may not have any kind of a policy that discriminates against folks based on mental health coverage,â she said.
Bakich, who is an expert on employer sponsored health coverage, has clients who are actively being audited by the Labor Department now.
UnitedHealthcare agreed in August to pay $15.6 million to settle claims it was being more restrictive in reimbursing out-of-network mental health services than out-of-network medical or surgical services, which included $2.5 million to settle claims brought by the Labor Department alone.
It was significant for Labor to take an enforcement action against a claims administrator or fiduciary of a health plan, said Meiram Bendat, founder and president of Psych-Appeal Inc., which helps patients challenge insurers when mental health claims are denied.
âThey are the parties with essentially de facto control of the day-to-day administration of the health plans in our country,â he said, noting UnitedHealthcare, Cigna, and Aetna among the big administrators.
Because self-funded employers for the most part tend to accept what the third-party administrator, or TPA, is offering, employers are often in the dark about any potential violations, said Judith Wethall, a partner at McDermott Will & Emery, who represents employer plans.
âSometimes a TPA does things behind the scenes that might violate mental health parity and an employer might not even know it,â she said.
Thatâs why some attorneys say itâs not really fair, or efficient, for Labor to go after employers unless an employer is doing something specific the claims administrator isnât.
The UnitedHealthcare settlement was the culmination of long-term negotiations with Labor for conduct that occurred prior to passage of the 2021 Consolidated Appropriations Act, which mandates that the department investigate employers for mental health parity compliance, said Kevin Malone, senior counsel at Epstein Becker & Green P.C.
The Labor Department reported its Employee Benefits Security Administration investigated and closed 180 health plan investigations in 2020, and 3,938 health plan investigations since 2011. All of the investigations described in the enforcement report were employers or other group health plan sponsors, and many were expanded to include insurers and third-party administrators, Malone noted.
The Consolidated Appropriations Act also amended the 2008 Mental Health Parity and Addiction Equity Act to require group health plans and issuers to complete an analysis that explains whether the factors used to justify non-quantitative treatment limits for mental health coverage differ from limits imposed for medical and surgical benefits.
The Labor, Health and Human Services, and Treasury departments released a list of frequently asked questions in April to clarify what the analysis must include, how it will be evaluated, and what steps will be taken if a plan is found to be noncompliant. Any group health plan or issuer found not in compliance will be named in a report to Congress.
The Labor Department will âvery likelyâ begin publicly naming plans, âprobably multipleâ plans that arenât in compliance with the mental health parity law, Malone said.
âBased on their actions with the United settlement, and based on the posture that theyâve taken, I think that they will need to make some examples of people,â he said.
Attorneys, however, say thereâs still confusion over what the report is supposed to look like, and some employers are having problems getting the information they need for the analysis from their plan administrators.
Many third-party administrators are not willing to provide the level of assistance self-insured employers need to provide that documentation, said Leena Bhakta, a principal legal consultant in Mercerâs Regulatory Resource Group.
âI have worked with some self-insured plan sponsors where the TPA has come back and told them that âbecause youâre self-insured, the responsibility for preparing this documentation rests with you, the plan sponsor, and weâre not willing to provide any assistance,ââ she said.
Malone thinks the UnitedHealthcare settlement shows the Labor Department is at least aware that administrators hold crucial information.
âThat, I think, is a good sign for the employers,â he said. âItâs clear that in a situation where thereâs pervasive practices across employers by a single administrator, the DOL is going to be directing most of their punitive ire at that administrator.â
Current Labor investigations do acknowledge the administrator has the informationâbut thatâs not stopping the department from âreally turning up the temperature on employers anyway,â Malone said.
In the Biden administration, the department has made mental health parity enforcement a high priority, going so far as to ask Congress for additional authority to fine violators, including employers. In its fiscal 2022 budget reconciliation proposal, the House Education and Labor Committee included a provision to allow the Labor Department to impose civil monetary penalties on plan sponsors, insurers, and plan administrators.
The new analysis, coupled with the prospect of penalties, has only made employers more worried about being caught violating the law.
âNo one Iâve spoken to is quote-unquote relieved the DOL may be going after some TPAs,â Bhakta said.
Eight long-term care providers will recover more Medicare money to satisfy bad debts because the federal government wrongfully reduced payments for years they werenât enrolled in state Medicaid programs, a federal court said.
The Centers for Medicare and Medicaid Services, a part of the U.S. Health and Human Services Department, must reevaluate nearly $2 million in claims filed by providers operated by Select Medical Corp. in Alabama, Arkansas, Mississippi, Nebraska, and Wisconsin, the U.S. District Court for the District of Columbia said.
Allowing CMS to deny these payments based on perceived state Medicaid liability subjects the providers to a must-bill policy and remittance requirement based on participating in and billing state Medicaid programs that the court previously found unlawful, it said.
Seventy-five providers located in 26 states sued HHS to recover over $20 million in Medicare reimbursements covering poor patientsâ bad debts for fiscal years 2005 to 2010.
In 2007, CMS began requiring providers to submit the bad debt claims to state Medicaid agencies and obtain a state remittance advice document to prove there was no other source of payment before it would reimburse the costs. This is known as the âmust-billâ policy.
Several providers, however, werenât able to comply with the policy because the Medicaid programs in their states didnât allow long-term care providers to participate.
The court held the agencyâs new policy violated administrative procedural rules because CMS didnât submit the change to notice-and-comment rulemaking first. It sent the providersâ reimbursement claims back to CMS for reconsideration.
CMS agreed to pay most providers more than $18 million plus interest. But it denied reimbursement of nearly $2 million to the eight providers.
This decision ignored the courtâs earlier determination that CMS may not withhold or reduce reimbursements for bad debts incurred while providers werenât participating in state Medicaid programs, the court said Monday in an opinion by Judge Beryl A. Howell.
Howell sent the providersâ claims back to CMS.
The agency may reduce or withhold payment for bad debt claims made after the providers enrolled in state Medicaid programs, she said.
Law Offices of Jason M. Healy PLLC represented the hospitals. The U.S. Department of Justice represented the HHS.
A North Carolina hospital unhappy with the relief it received after asking a Medicare contractor to reopen a reimbursement decision is barred from seeking formal agency review because it voluntarily withdrew its first appeal, a federal court said Monday.
A Provider Reimbursement Review Board rule forbidding a second formal appeal when the first has been withdrawn didnât deprive FirstHealth Moore Regional Hospital of its appeal rights because FirstHealth opted to go through the reopening process, the U.S. District Court for the District of Columbia said.
âThis case offers a cautionary tale to any provider navigating the âlabyrinthine world of Medicare,ââ as FirstHealth based its strategy on the misunderstanding that the rules allowed it to reinstate its formal appeal after the reopening process ended, the court said.
A Medicare contractor determined that FirstHealth owed the government about $1.45 million for overpayments for fiscal year 2011. The hospital filed a formal appeal with the PRRB, but then withdrew the appeal after it asked the contractor to take another look at its reimbursement for uncollectible patient debts.
After reopening the case, the contractor allowed reimbursement for some previously denied bad debts, but not others. FirstHealth thus was eligible to receive an additional $833,000, reducing the amount it was required to repay to the U.S. Health and Human Services Department.
FirstHealth then tried to revive its PRRB appeal, but the board denied reinstatement. The court granted summary judgment to HHS in an opinion by Chief Judge Beryl A. Howell.
Under the PRRBâs withdrawal rule, itâs âthe providerâs responsibility to withdrawâ any issue a contractor has agreed to review from the appeal, the court said. FirstHealth argued the provision is mandatory and, thus, unlawfully deprived the hospital of its appeal rights.
The PRRB, on the other hand, argued the provision isnât a command. A providerâs withdrawal of its appeal is entirely voluntary, it said.
The court found both readings of the provision to be reasonable. But the ambiguity gave the advantage to the PRRB because an agencyâs interpretation of its own regulations is entitled to deference, the court said. PRRBâs interpretation, moreover, was reasonable, it said.
FirstHealth opted to pursue the reopening process, when it could have continued with the formal appeal, the court said. It wasnât âforcedâ to give up its appeal rights at any point, it said.
Law Office of Joseph D. Glazer PC represents FirstHealth. The U.S. Attorneyâs Office for the District of Columbia represents HHS.
The case is FirstHealth Moore Regâl Hosp. v. Becerra, D.D.C., No. 20-cv-1007, 9/20/21.
House Energy & Commerce Chair Frank Pallone recently pledged to work with lawmakers from both parties moving forward to avert physician pay cuts, but the New Jersey Democrat said nowâs not the time to act given CMS just received comments on its proposed 2022 fee schedule. Lawmakers from both parties want to eventually stop the cuts, but E&C Democrats rejected a GOP bid this week to add a pay fix to the emerging budget reconciliation bill.
Meanwhile, physicians and lawmakers are also pressing CMS to back away from the cuts on its own.
The American Medical Association has estimated that certain providers could be looking at an almost 10% cut, unless lawmakers step in.
Some providers could see pay cuts in 2022 due to a variety of policies, from the end of the sequester moratorium to a phase-in of certain cuts tied to changes to evaluation and management pay under the physician fee schedule and changes to clinical labor policies under the proposed 2022 physician fee schedule, among others.
Rep. Larry Bucshon (R-IN) said Wednesday (Sept. 15) during the Energy & Commerce reconciliation markup that Democratsâ bill essentially ignores that some physicians could see a substantial cut in 2022. He called for an amendment to extend for a year the 3.75% payment adjustment that Congress put in place last year in order to ease cuts tied to changes to evaluation and management pay policies under the physician fee schedule.
âThis idea isnât partisan,â he reminded lawmakers, pointing to efforts with Rep. Ami Bera (D-CA) to head off physician cuts. âAs we consider a bill that comes with a high price tag of a trillion dollars, why not set aside a very small fraction of that to say thank you to our health care heroes by providing them with the certainty and support they so admirably deserve.â
Bucshonâs comments came just days after Rep. Brad Wenstrup (R-OH) raised concerns at a House Ways & Means markup about adding more providers to a Medicare pay system that is already unstable, and he also pointed to the looming physician pay cuts.
Rep. Kurt Schrader (D-OR), who voted against adding hearing, vision and dental benefits to Medicare during the House Energy & Commerce markup, said dentists might not want to be part of a program that has had unstable pay rates, pointing to the historical Sustainable Growth Rate payment formula and fixes lawmakers routinely put in place to avoid cuts to doctors.
House Ways & Means Chair Richard Neal (D-MA) said he would work with Wenstrup on the physician pay issue, and, while Bucshonâs amendment was defeated, Pallone said he hopes to find a bipartisan solution in the future.
âI do not think this is the right time or place to address these issues,â Pallone said, noting stakeholdersâ myriad concerns. âThe comment period on the physician fee schedule only recently closed and the final rule is under development. I do think ensuring robust physician payment is an important issue…I look forward to working with stakeholders and members on these issues as we go forward.â
The American Medical Association late last month raised alarm about the upcoming Medicare cuts and asked that the reconciliation package be used to instruct lawmakers to draft and mark up legislation to prevent a so-called pay cliff for physicians come January 2022.
A draft letter to congressional leadership spearheaded by Bera and Bucshon said a short-term fix is needed to deal with payment instability while a longer-term solution for the Medicare pay system for providers is found.
âWe believe broad systemic reforms to the payment system are critical to speed the transition to value-based care. However, as Congress begins the complex process of identifying and considering potential long-term reforms, we must also create stability by addressing the immediate payment cuts facing health care professionals. These cuts will strain our health care system and jeopardize patient access to medically necessary services,â a draft of the letter says (emphasis theirs).
Reps. Bobby Rush (D-IL) and Gus Bilirakis (R-FL), meanwhile, spearheaded a letter signed by more than 70 lawmakers sent directly to CMS urging the agency not to move forward with their proposed changes to the clinical labor policy in the proposed 2022 physician fee schedule, as the changes could lead to up to 20% cuts for certain provider types. The lawmakers raised concerns in particular with the budget-neutral nature of CMSâ proposed changes — though the agency canât change the budget-neutral aspect of the rule.
âConsidering that the second-order negative effects of PFS âbudget neutralityâ strongly outweigh incorporating new clinical labor data, we strongly recommend CMS not finalize the clinical labor policy at this time in the 2022 PFS Final Rule,â the lawmakers said.
They also urged CMS to work with them to avoid the 3.75% cut that would come from phasing in the reductions tied to changes to evaluation and management pay changes.
âMoreover, considering PFS âbudget neutralityâ effects from the 2021 PFS Final Rule E/M policy are still causing negative impacts in the form of a scheduled 3.75 percent cut to the conversion factor in 2022, we urge you to work with Congress on fundamental reform to the PFS in order that we may better address the upcoming 3.75 percent cut in legislation later this year.â — Michelle M. Stein (mstein@iwpnews.com)
The Justice Department is targeting over $1.4 billion in alleged health-care fraud in a nationwide enforcement spree involving 138 defendants and 42 doctors and nurses.
The Friday announcement includes $1.1 billion in alleged schemes involving telemedicine companies arranging for fraudulent orders for expensive durable medical equipment and genetic testing, according to Assistant Attorney General Kenneth Polite, who spoke to reporters.
That part of the announcement could have a chilling effect on the future of telehealth, which has expanded rapidly during the Covid-19 pandemic but which has been the target of significant DOJ enforcement actions for three years running.
The Department of Health and Human Services Office of Inspector General is conducting a nationwide review of fraud and compliance trends in telehealth during the pandemic. The results of the audits could play a role in Congress as lawmakers consider whether to allow the Covid-19 expansion in telehealth to become permanent.
The enforcement action also involved $133 million in fraud connected to substance use facilities, $29 million in Covid-19 fraud, and $160 million in illegal opioid distribution and other health-care fraud schemes, the DOJ said in a Friday statement.
âThe ability to provide health care remotely is a critical tool in the delivery of health-care services, and is a reason the Department of Justice remains committed to ensuring that the adoption of this technology is not tainted by wrongdoers,â Polite told reporters.
The announcement involved a group of similar cases that were charged by the DOJ around the country between Aug. 1 and Sept. 17, according to Joshua Stueve, a department spokesman.
The telemedicine schemes involved companies allegedly paying doctors and nurse practitioners to order unnecessary durable medical equipment, genetic and other diagnostic testing, and pain medications, the DOJ statement said.
In many cases, the participating doctors and nurses entered orders without any patient interaction or with only a brief phone conversation with patients they had never seen, it said.
The DOJ alleged in the biggest of the cases that a Florida owner of several telemedicine companies carried out a $784 million scheme involving illegal orders for durable medical equipment and kickbacks to doctors and nurses who wrote fraudulent orders.
But telehealth advocates criticize the Justice Departmentâs rhetoric about these fraud cases and what they say is its failure to distinguish traditional fraud carried out using the reach of telemarketing from fraudulent claims for the provision of telehealth services.
Most of the cases charged Sept. 17 involved conduct that took place before the Covid-19 pandemic and before the Centers for Medicare & Medicaid Services relaxed restrictions on telehealth as a means of ensuring continuing access to health-care services amid pandemic-related restrictions, Allan Medina, chief of the Health Care Fraud Unit in the DOJâs Criminal Division, told reporters on the call.
The cases also didnât for the most part involve fraudulent billing for telehealth services, with the exception of a Florida case in which doctors took advantage of the relaxed regulations to bill for telehealth encounters that never took place, as well as to provide orders for unnecessary medical equipment, Medina said.
The Alliance for Connected Care, a supporter of expanded telehealth services, said in a statement that it was âconcerned by the incorrect narrative created by continued DOJ accusations of telehealth fraud.â
âWe encourage the DOJ to consider the meaningful corrections made by the HHS OIG in February 2021 when it clarified the difference between âtelefraudâ schemes (which this represents) from telehealth fraudâwhich there has been very little evidence of thus far,â Krista Drobac, the allianceâs executive director, said in the statement.
A September 2020 DOJ health-care fraud âtakedownâ included more than $4.5 billion in schemes involving telemedicine.
A takedown from the year before involved $2.1 billion in fraudulent claims for cancer-related genetic testing orchestrated by telemedicine companies working with testing laboratories and providers.
The alleged $784 million fraud scheme is United States v. Henry, D.N.J., No. 2:19-cr-00246, superseding indictment 8/10/21.
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