WASHINGTON, August 26

WASHINGTON, August 26, 2021—The Federal Communications Commission today approved an initial set of 62 applications for funding commitments totaling $41.98 million for Round 2 of its COVID-19 Telehealth Program. Health care providers in each state, territory, and the District of Columbia, including those previously unfunded in Round 1, will use this funding to provide telehealth services during the coronavirus pandemic. The FCC’s COVID19 Telehealth Program supports the efforts of health care providers to continue serving their patients by providing reimbursement for telecommunications services, information services, and connected devices necessary to enable telehealth during the COVID-19 pandemic. MORE

HHS is not budging on its initial provider relief financial reporting deadline despite advocates’ mounting pressure for a delay, reminding relief recipients in two 15-minute stakeholder calls Thursday (Aug. 26) that they have 35 days to submit how they used COVID-19 relief to cover lost revenue and increased costs due to the pandemic.

The department’s stakeholder calls for provider relief recipients came shortly after group medical practices sent HHS a letter asking it to extend the financial reporting deadline until 2023. The Medical Group Management Association is worried the reporting requirements are so complex and arduous that some providers dealing with a resurgence in COVID-19 cases might not be able to meet the initial reporting deadline of Sept. 30. One attendee echoed this concern.

“Nothing like a 4th surge to work through while figuring this out,” the stakeholder wrote in a chat alongside the call.

The American Hospital Association and some lawmakers are also pushing for extensions but are mostly focusing on the spending deadlines.

HHS’ June guidance created four payment periods that give provider relief recipients one year to spend all their funds. This means providers who received $10,000 or more in relief before June 30, 2020 have a hard deadline of Sept. 30 to report how they used their relief over the past year. They will have until Oct. 30 to return the unspent funds to HHS.

But Health Resources and Services Administration staff who ran the brief stakeholder calls Thursday said many providers have yet to sign up for the reporting portal, which is needed to submit their financial report.

“HRSA is remaining committed to supporting all providers with reporting,” HRSA staff said on the call. “We understand that it’s stressful, and for this reason, we continue collecting feedback to inform the development of new resources, so I’m super excited to share today three new resources that we recently came out with that can help your members with different aspects of the reporting process.”

HRSA’s new resources condense information from previous guidance and frequently asked questions into a few pages. They focus on lost revenue calculations, general financial reporting and using provider relief for personnel recruitment and retention.

Richard Kes, health care industry senior analyst at the audit, tax and consulting firm RSM, says these new resources don’t explain anything new, but show how HRSA is trying to make sure providers understand the requirements.

“I think the big takeaway is — maybe this is me being overly optimistic — is they are trying to make things easy, trying to put all the documentation all the requirements in one place, you know, like that one pager that they put together, you know, it’s a really well-organized document with all the hyperlinks of where you need to go,” Kes said, adding these are things his clients typically ask him for.

But Kes and other accountants like Fred Fisher, vice president of service development for Toyon Associates, Inc., are still waiting for clarification from HRSA. One area of confusion is how to calculate lost revenues for 2021 when the providers’ budgets must have been set before March 2020 in order to show that revenue was lost during the pandemic. Most budgets typically cover only a year, so unless providers passed a two-year budget, this limits how they can justify the use of COVID-19 relief in 2021.

Fisher is also hoping HRSA will clarify how providers can report total marginal cost increases for treating a patient and what counts as patient care revenue.

The next provider relief spending deadline is Dec. 31 for providers who received relief between July 1, 2020 to Dec. 31, 2020. –

The White House and Democrats also plan to hammer Republicans who oppose the proposal as being on the side of big pharmaceutical companies that overcharge Americans. And organizations such as the AARP are joining the push. In a June survey of 1,605 registered voters ages 50 and older, the group found that 87 percent supported allowing Medicare to negotiate with drug companies for lower prices, including 80 percent of Black voters and 77 percent of Hispanic participants.

John Hishta, AARP’s senior vice president of campaigns, said staffers for the group, which represents tens of millions of retirees, are talking to lawmakers and leadership in the White House nearly every day. Passing the provision allowing Medicare to negotiate drug costs is a “top priority” said Hishta and “we’re gonna pull out all the stops to try to make it happen.”

As the House prepares to vote on the budget resolution that will include the drug price measure, the White House has ramped up outreach to members at the behest of Democratic leadership, amid concerns they don’t yet have the necessary votes. In the House, a group of moderate Democrats are threatening to derail the resolution, arguing the House should first vote on the $1 trillion infrastructure bill the Senate already passed. Separately, a number of centrists in the party are wary of voting to allow Medicare to negotiate prices, arguing it would hamper pharmaceutical companies’ ability to innovate.

Rep. Susan Wild (D-Pa.) said that position is misguided and has offered to talk to skeptical Democrats if party leadership requests it. “We really, really need to wake up — and I’m talking about my caucus right now — and understand that this has huge bipartisan appeal,” Wild said of the effort to lower prescription drug prices. “If necessary, we need to segregate this issue and push it out there because it is a winning issue.”

Wild said the issue she hears about the most from her constituents is the price of insulin. “When you’ve got something as important as this in the reconciliation package you need to really think long and hard before you vote no on that,” Wild said.

In a memo released Friday, Lake’s polling firm found that 87 percent of voters over the age of 65 favored allowing Medicare to negotiate with prescription drug corporations to lower prices. The survey conducted in mid-June among 800 voters over the age of 65, also found that seniors would cross party lines “presenting both an opportunity for Democratic candidates who favor this proposal to win over voters as well as a threat that could erode their base of support if they oppose it,” the memo states.

Asked if a Democratic candidate supported the proposal, 51 percent of seniors were more likely to vote for them, including 78 percent of Democrats, 35 percent of independents and 31 percent of Republicans.

Lake warned, however, that Democrats need to better outline the proposal within Democrats’ reconciliation package, noting that to date “almost half the public” still doesn’t know what’s in Biden’s $1 trillion infrastructure package, which passed the Senate earlier this month. “And the reconciliation package they know even less about.”

The comments were among the hundreds sent to the agency as it considers whether changes will be made to the Covid-19 emergency temporary standard that covers only health-care workers and what will be included in a permanent standard due by late December.

Under Review

The agency isn’t discussing its timetable for a permanent standard or how it would differ from the temporary standard.

“OSHA will review the comments carefully,” said U.S. Department of Labor spokesperson Denisha Braxton. “Our priority is the safety and health of workers, and the agency will continue to assess its next steps in light of the evolving situation.” 

OSHA adopted its Covid-19 emergency temporary standard on June 21 without going through the public review and comment period required for permanent rules. Before its release, the temporary standard was the subject of more than 40 meetings between interest groups, OSHA, and the White House’s Office of Information and Regulatory Affairs.

One example of Covid-19’s evolving medical guidance OSHA needs to keep pace with is describing precisely what it means to be “fully vaccinated.”

The OSHA emergency standard defines fully vaccinated as “two weeks or more following the final dose of a Covid-19 vaccine.”

With booster shots being urged by the federal Centers for Disease Control and Prevention, the definition of “fully vaccinated” will need to include booster shots, Debbie Hatmaker, chief nursing officer for the American Nurses Association, told OSHA.

State hospital associations have concerns with existing differences between the OSHA temporary standard and guidance issued by the CDC and the Centers for Medicare and Medicaid Services.

“We are concerned that the OSHA guidance contradicts CDC guidance that healthcare providers have already been observing, such as requirements for the use of respirators, physical distancing barriers, screening of asymptomatic healthcare personnel, and contact tracing,” Tim Rave, president of the South Dakota Association of Healthcare Organizations, said in submitted remarks.

Small clinics and nursing homes criticized the OSHA mandate that employers pay workers up to $1,400 a week if the workers can’t do their job because of isolation or quarantine restrictions, arguing it would strain their budgets.

“The requirements to pay staff for missed work when they have chosen to refuse a Covid-19 vaccination is misguided,” wrote Steven Buck, president of Care Providers Oklahoma, a nursing home trade association, said in comments to the agency. “Except for those with a valid contraindication for the vaccine, individuals who refuse a vaccination should be required to exhaust paid-time off and sick leave instead of being compensated by the employer.”

Expand Mandates

Workers groups urged OSHA to go beyond CDC guidance.

The American Nurses Association called on the safety agency to toughen the rule by requiring employers to have mandatory vaccination programs with some exceptions granted.

The nurses group also called for more stringent requirements for employees to stock N95 respirators. OSHA must make it clear “just-in time” delivery of personal protection equipment to hospitals isn’t acceptable, the association said.

Unions with members outside of health care want OSHA to enact a permanent rule that covers all workers and sued the agency in federal court to force the change. Currently workplaces not under the standard are asked to follow OSHA guidance, however no rule mandates they do so.

To treat Covid-19 as a hazard that only warrants guidance rather than regulation “falls short in keeping out members safe on the job,” John “Scotty” MacNeil, national safety director for the Utility Workers of America, told OSHA.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story

The reasoning is clear: Medical workers should be protected from passing the virus to the most vulnerable Americans — particularly as the delta variant refuels the pandemic. And the nation’s largest network of nursing homes has already instituted its own vaccine requirement for staff.

Yet the major nursing home associations are pushing back, saying they shouldn’t be singled out and raising concerns about worsening staff shortages over the mandate.

The Department of Health and Human Services will use its funding leverage over long-term care facilities.

The administration said yesterday it will develop rules requiring nursing homes to mandate that all of their workers be vaccinated as a condition for those facilities to receive federal funds, The Post’s Tyler Pager and Annie Linskey report.

HHS, which is developing the new regulations, will enforce them with the threat of withholding Medicare and Medicaid dollars — the major source of funding for more than 15,000 nursing home facilities, which employ roughly 1.3 million workers.

Larry Levitt, senior vice president at the Kaiser Family Foundation, noted it’s not the first time the government has taken this tactic:

“If you visit, live or work in a nursing home, you should not be at a high risk of contracting covid from unvaccinated employees,” Biden said.

As my colleagues previously noted, the effort “is part of a far more muscular approach by the Biden administration to increase vaccinations amid spiking cases due to the highly contagious delta variant.” Indeed, coronavirus cases have shot up in parts of the country in recent weeks, while deaths — albeit rising more slowly — are back to levels seen in May, about 620 per day.

Nursing homes said they want their staff vaccinated – but they also don’t want to be singled out.

Ninety-four percent of nursing homes surveyed by AHCA said they are experiencing a staffing shortage. Hospitals are experiencing nursing shortages — and lately those have been particularly apparent in areas where the coronavirus is especially surging, as our colleague Amy Goldstein recently reported.

“They’ve got PPE and other supplies,” Chip Kahn, president of the Federation of American Hospitals, told me. “The big problem is staffing, and so the question is: does this get in the way of staffing?”

There are some examples of this happening in hospitals.

Earlier in the summer, more than 150 health-care workers were fired or resigned from the Houston Methodist hospital system for refusing to comply with its vaccination requirement. New Jersey’s largest hospital system fired a half-dozen workers who also refused to get vaccinated.

Nursing homes are starting to shift in the direction of mandates, too. A few weeks ago, Genesis Healthcare told workers they need to get the shots in order to keep their jobs. The decision was a major shift for the industry, given that Genesis has 400,000 employees in nearly 400 nursing homes and senior communities.

Of course, these examples don’t prove that a federal vaccine requirement would lead to widespread hospital staff losses. The Associated Press recently interviewed operators of 10 smaller nursing homes, who said that fears of a massive staff exodus seem to be overblown. But it’s a fair question to ask, considering long-standing concerns in the United States over lacking enough medical workers as the population ages.

Medical workers are (surprisingly?) hesitant to get vaccinated.

One might guess they would be more willing than the general public to get the shots, but that doesn’t seem to be the case, especially when it comes to lower-wage workers such as medical aides and assistants.

Medscape Medical News found 1 in 4 hospital workers who have direct patient contact hadn’t received a single coronavirus vaccine dose by the end of May, when it analyzed government data from 2,500 hospitals around the country.

In a March poll conducted by The Post and the Kaiser Family Foundation, 30 percent of front-line medical workers said they either wouldn’t get a vaccine or hadn’t yet decided whether to get one. The poll found vaccination rates were higher among doctors and nurses compared with those who perform administrative duties or assist with patient care.

And hundreds of thousands of nursing home workers still aren’t vaccinated. Only about 62 percent of nursing home staff members in the United States were vaccinated as of Aug. 8, ranging at the state level from a low of 44 percent to a high of 88 percent, according to data from the Centers for Medicare and Medicaid Services. 

A similar mandate could be on the way for hospitals.

Yesterday’s new vaccination requirement doesn’t include hospitals, but health-care lobbyists said the administration has been toying with the idea of extending similar requirements to them. A CMS spokeswoman declined to comment on the matter.

Many hospitals have decided on their own to press forward on vaccine mandates. About one-third of hospitals have announced mandatory vaccination policies for their workers so far, a spokesman for the American Hospital Association told me. When asked for a response to the nursing home requirements, AHA emphasized its support for hospitals making their own decisions.

“The AHA supports hospitals and health systems that choose, based on local factors, to mandate covid-19 vaccines for their workforce,” the statement said. 

Tackling the Climate Crisis—The latest comprehensive scientific report from the Intergovernmental Panel on Climate Change (IPCC) makes clear that immediate, rapid, and large-scale efforts are needed to keep the climate crisis from escalating to truly catastrophic levels. The Plan empowers comprehensive action to build an equitable clean energy economy with historic investments to transform and modernize the electricity sector, lower energy costs for Americans, improve air quality and public health, create good-paying jobs, and strengthen U.S. competitiveness – all while putting our country on the pathway to 100 percent carbon-free electricity by 2035. It achieves this by extending and expanding clean energy tax credits and supporting clean electricity performance payments so utilities can accelerate progress toward a clean electric grid at no added cost to consumers. It invests in clean energy, efficiency, electrification, and climate justice through grants, consumer rebates, and federal procurement of clean power and sustainable materials, and by incentivizing private sector development and investment. The Plan will also drive economic opportunities, environmental conservation, and climate resilience – especially in underserved and disadvantaged communities – including through a new Civilian Climate Corps.

Affordable Housing—Having a stable, secure, sanitary, and safe place to call home is the bedrock of success. This Plan ensures Americans have access to safe and affordable housing by providing resources to increase housing vouchers and funding for tribal housing. It also supports investments in programs that will help address our nation’s housing crisis by increasing the supply of affordable homes for those in need and investing in historically underserved communities and those that have been previously left behind.

Research, Development, and Innovation Infrastructure—Strides in science, technology, and manufacturing are creating the industries and jobs of the future, and we must ensure that they are created here. The Plan will invest in America’s ingenuity and competitiveness by revitalizing state-of-the-art laboratory facilities and research across the nation, including at historically black colleges and universities (HBCUs) and other minority-serving institutions (MSIs), through new regional innovation hubs, and through federal science agencies. It will reinvigorateS. manufacturing by supporting supply chain resilience and modernization, Manufacturing USA institutes, the Manufacturing Extension Partnership, and facilities and research at the National Institute of Standards and Technology. These investments will strengthen America’s competitiveness in the global economy.

Immigration—Aside from being the moral thing to do, providing a pathway to lawful permanent resident (LPR) status for Dreamers, recipients of Temporary Protected Status (TPS), farmworkers, and essential workers will be a boon for our economy. This Plan allows for investments to provide a pathway to LPR status for these immigrant communities.

Restoring Tax Fairness and Reining in Prescription Drug Costs

The Build Back Better Plan makes once-in-a-generation and transformative investments in our nation’s future to create millions of good jobs and inclusive economic growth over the long run. Major new investments in our children and our families – as well as the continuation of the American Rescue Plan’s historic reductions in child poverty – will improve Americans’ quality of life now, increase future opportunities for all, strengthen our economic outlook, and ensure American competitiveness and prosperity for generations to come. To help pay for the investments, the Plan calls for reforming the tax code to ensure mega-corporations and the wealthiest Americans pay their fair share. These reforms will make sure the wealthy play by the same rules as everyone else and ensure that high-income Americans pay the tax they owe under the law. No one making $400,000 per year or less will see their taxes go up. Instead, hard-working Americans and families will benefit from much-deserved tax cuts – such as the extension of the expanded Child Tax Credit and other tax credits for families and workers enacted in the American Rescue Plan Act. The Plan also achieves savings from following through on President Biden’s call to give Medicare the power to negotiate lower prescription drug prices, saving money for patients as well as the federal government.

The House Will Spearhead the Drafting of the Reconciliation Bill

The 2022 budget resolution gives Congress the option of using a budget reconciliation measure to improve the lives of the American people and make the investments our nation desperately needs. The reconciliation process allows legislation for the Build Back Better Plan to pass with a simple majority in the Senate. Without the reconciliation directives in this resolution, the bold action outlined in the Plan could languish indefinitely in the Senate, putting our economy, the well-being of millions of Americans, and our nation’s future at risk. The House will take the lead on moving the reconciliation bill forward because the Build Back Better Plan includes measures to ensure that the wealthy pay their fair share in taxes, and all bills addressing taxes must originate in the House.

The budget resolution’s reconciliation framework reflects the net investment of the Plan as allocated among 13 House committees. The reconciliation instructions deliberately give the Ways and Means Committee, the chief tax writing committee in the House, the flexibility it needs to craft fair and comprehensive legislation. The resolution instructs these committees to report legislation consistent with these budgetary targets to the Budget Committee by September 15, 2021. The Budget Committee will combine the legislation – without substantive revision – and prepare it for floor consideration. In addition to these reconciliation instructions, the resolution also provides for budget enforcement in 2022 and includes other technical language necessary to carry out the terms of the resolution and reconciliation.

WASHINGTON – Today, the Federation of American Hospitals (FAH) sent a letter to Democratic leaders of the House and Senate outlining priorities for their upcoming budget reconciliation package.

In the letter, which was addressed to Speaker Nancy Pelosi and Majority Leader Chuck Schumer, FAH President and CEO Chip Kahn wrote, “I am taking an opportunity to provide recommendations on the health care issues pertinent to your development of the budget reconciliation initiative. We are particularly gratified by early indications that you will focus on further improving and expanding health coverage for millions of Americans through the Affordable Care Act (ACA), and providing additional benefits for seniors under Medicare.”

Specific proposals highlighted in the letter include:

• Make permanent the enhanced ACA subsidies enacted in the American Rescue Plan Act
• Close the Medicaid coverage gap using the existing ACA framework
• Address skyrocketing drug prices using market-based approaches
• Support and maintain a robust health care workforce
• Promote health equity, particularly in underserved and rural communities  

You can find the complete letter here. 

Early in the COVID-19 pandemic, stay-at-home measures, potential risk of COVID infection at a hospital or doctors’ offices, and concerns over hospital capacity led to sharp declines in health care utilization and spending, including drops in hospital admissions for both acute and elective procedures. There was also a drop in preventive service use. Spending decreased across all health services. While telemedicine use increased rapidly during the pandemic, it did not offset the decrease in in-person care.

Many have wondered whether health care utilization will rebound or even increase to make up for the delayed or forgone care from the past year. If so, this pent-up demand has the potential to increase health spending now or in the coming year.

This brief updates Epic Health Research Network (EHRN) and KFF analysis of data for nearly 10 million admissions in the Epic health record system. Data come from Cosmos, a HIPAA Limited Data Set from Epic customers, which include 250 hospitals across 47 states and 112 million patients. We also used Bureau of Economic Analysis data to look at trends in health services spending. We find that hospital admissions remain below expected levels through early April 2021. Similarly, health spending overall (for hospitals and ambulatory care) remains below expected levels through at least June 2021. Thus far into the pandemic, we have not seen an increase in hospital admissions due to pent-up demand for forgone care in the last year.

Hospital admissions remained below expected levels through early April 2021

The Epic Health Research Network (EHRN) data show hospital admissions remaining below expected levels through at least April 9, 2021. In the week beginning on April 3, 2021, hospital admissions were 85.5% of what would be expected based on historic patterns. Averaged over the first quarter of 2021, hospital admission rates were 89.4% of what would have been expected in the absence of the pandemic.

Though vaccinations significantly reduced the rates of hospitalizations for COVID-19 in early April 2021 from peak COVID hospitalizations in January 2021, the pandemic is still driving a significant share of hospital admissions. If we remove patients with a COVID-19 diagnosis, we see that all other admissions are 80.7% of expected levels based on pre-pandemic usage in the week of April 3, 2021.

The hospital admissions data in this analysis are only through April 9, 2021. In recent weeks, COVID-19 hospitalizations have begun to trend upward again in part due to the Delta variant. There remains uncertainty about how any future waves of COVID-19 cases might affect hospital utilization more generally.

Overall, health services spending is 7.1% below prior years’ trends

Reflecting lower utilization levels, health spending more broadly also remains below pre-pandemic levels. One source for health spending trends is the personal consumption expenditure (PCE) data published monthly from the Bureau of Economic Analysis (BEA). PCE measures the total money spent on health services. Consistent with EHRN, PCE data show spending on health services (hospitals and ambulatory care) remains 7.1% below expected health spending in June 2021 on an annualized seasonally adjusted basis. Spending on hospitals is 4.1% below expected health spending in June 2021. Since January 2021, annualized overall health services and hospital expenditures are growing at a similar rate as prior to the pandemic in 2017-2020.

Missed care could affect providers’ bottom lines and boost insurer profits

While lower levels of utilization have reduced spending, hospitals and other health care providers have qualified for various types of federal assistance during the coronavirus pandemic. Most notably, hospitals and other health care providers received grants from the $178 billion provider relief fund that is being distributed by the Department of Health and Human Services (HHS). Thus, hospitals and providers may be temporarily sustained with the federal assistance. In the long-run once federal assistance dries up, depressed utilization could affect the finances of hospitals and other providers.

Health insurers, in contrast, may be benefiting financially from this decline in hospital admissions and certain other medical services since the start of the pandemic. KFF analysis found that in 2020 average gross margins for health insurers had remained relatively high compared to 2019 and 2018 across the individual market, group market, Medicare Advantage and Medicaid Managed Care markets. In the fully-insured commercial market, the Affordable Care Act requires insurers to return some excess profits to enrollees in the form of rebates.

The implications of missed care for population health remain to be seen

Following an unprecedented decrease in the number of hospital admissions last year, utilization remains below expected levels. The persistence of lower-than-expected utilization suggests some of the care that did not occur early in the COVID-19 pandemic was foregone rather than simply delayed.

Several factors may be contributing to the lower-than-expected number of hospital admissions in early 2021. For example, the economic effects of the pandemic may depress the number of people seeking services. As has been seen in past economic downturns, some people may be forgoing care due to cost reasons.

Suppressed health care use may not be driven only by demand. A more limited supply of health care workers may also lead to continued delays in the availability of care. Health sector employment declined somewhat in the pandemic, and even as health employment rebounds, it may take time for appointment slots to fully reopen.

Even after the pandemic ends, the effects of this delayed and forgone care are yet to be seen.  Some of the care that was missed earlier in the pandemic may have been for acute conditions that resolved on their own or chronic conditions that were managed with less service intensity than would have otherwise been delivered. But in other cases, care that was missed may have led to worsened outcomes or even premature death. Looking ahead, people’s experiences with the health care system during the pandemic and increase in telemedicine and alternative ways of delivering care may alter how people use care.

Methods

The analysis is based on EHRN and KFF analysis of the Epic Cosmos Limited Data Set, which includes data for more than 112 million patients from 250 hospitals across 47 states. Contributing organizations were included if they had data through January 1, 2017. Organizations were then excluded if they had go-lives or mergers during the study time period, had multiple weeks of missing data, or showed discrepancies.

Overall, 9.6 million admissions are included in this sample. Expected admissions are based on the historic utilization in the pre-pandemic era. A generalized additive model was trained on weekly admissions data from January 1, 2017 to January 25, 2020 and to generate weekly predicted admissions from January 26, 2020 to April 9, 2021.

Admissions were grouped by week of discharge. COVID-19 admissions are defined as admissions with either a documented COVID-19 diagnosis (U07.01) or other respiratory diagnosis involving a patient who tested positive for COVID-19 or received a COVID-19 diagnosis within 14 days of admission.

The Bureau of Economic Analysis (BEA) data through June 2021 published on July 30, 2021 were used. We used spending data for health services, which does not include spending on pharmaceutical and other medical products. The BEA monthly figures are estimates and are later adjusted using the Quarterly Services Survey. Therefore, there may be some lag in actual spending and monthly BEA estimates of health spending.  

Kieran and Jackie are with the Epic Health Research Network (EHRN). Krutika, Matthew, and Cynthia are with KFF. 

The law only prevents health-care providers and health insurance companies that transmit health information electronically from releasing a patient’s personal health information without their consent. HIPAA also applies to health-care clearinghouses, which work within the health-care reimbursement system like a billing service, as well as business associates, who work on behalf of a provider, insurer, or clearinghouse and are involved with the use or disclosure of an individual’s identifiable health information.

Somehow over the years, HIPAA has wrongly morphed into a generic term for health privacy.

“It’s just sort of a generic term people are throwing around and it doesn’t really mean what they think it means,” Hartsfield said.

HIPAA doesn’t apply to employers, most schools and school districts, colleges, or private businesses outside of the heath-care context. There may be other laws that limit what health information they’re allowed to request. Some states have passed prohibitions on vaccine passports to prevent private businesses or state and local governments from requiring proof of vaccination in exchange for services.

Limiting Information

One health law scholar said HIPAA is being used in some instances as a shield to withhold more meaningful information about Covid-19 and its spread.

Nebraska started limiting the Covid-19 data it was releasing after Gov. Pete Ricketts (R) ended the state of emergency June 30. The state’s Department of Health and Human Services says it’s restricted by HIPAA from releasing certain data. 

Updates are now weekly instead of daily and include basic numbers on testing, vaccinations, variants, and breakthrough cases. The state is no longer releasing county-by-county data on infection rates or Covid-related deaths. Daily numbers on hospital beds, respirators, or overall staffed beds are also no longer available.

“State and Federal law restricts the release of COVID-related data depending on the source from which it was collected, and whether or not the identity of the individuals involved can be ascertained,” the website says. “The Nebraska Department of Health and Human Services is a covered entity subject to federal restrictions under HIPAA.”

But HIPAA doesn’t apply if 18 specific identifiers are removed, including names, ages, and phone numbers, or a qualified statistician determines there’s very small risk the information could be used to identify an individual.

“It just feels like it’s intentionally vague,” Kelly Dineen, director of the health law program at Creighton University School of Law, said about Nebraska’s Covid-19 data.

She noted the state’s health department in April released a Statistical Report on Abortions in 2020 that gives numbers by county and age. “It’s funny they can find a way to report data down to the county and age for something like abortions,” but not Covid-19, she said.

Before the public health emergency ended, Dineen said, the state had been reporting Covid-19 information in a meaningful way, where the public could see statistics on testing and just how sharply case counts are rising. Without that data, she said it’s hard for people to assess their level of risk.

“Nebraska is one of those places where masking is hotly contested, but even if you wanted to follow the CDC’s recommendation, it’s really hard to know if you’re sitting in a place where the transmission is significant,” she said.

A group of 11 state senators led by Machaela Cavanaugh (D) sent a letter to the governor Aug. 11 asking him to reinstate the Nebraska’s Covid-19 dashboard with daily updates from all 93 counties “to enable all Nebraskans to make informed decisions with the most up-to-date information.” 

“Basic numbers shared on a weekly basis is not enough,” they said.

HIPAA Exceptions

There are exceptions baked into HIPAA that allow entities covered by the law to disclose protected health information to prevent or control disease. They may also disclose protected health information to prevent or lessen a serious and imminent threat to public health or safety, as long as they’re only disclosing the minimum data necessary and the disclosure is to someone reasonably able to prevent or lessen the threat.

Attorneys and health law experts disagree on whether the public would qualify as the “someone reasonably able to prevent or lessen the threat.” 

In a statement, Nebraska’s health department said while there are certain provisions that permit minimally necessary releases under special situations, in general the agency must abide by the law when it releases Covid-19 information.

The department went on to cite a steady decline in daily viewership as another reason for removing the daily Covid-19 dashboard.

“With the state of emergency ending and Nebraska’s return to normal, combined with the steady decline in public interest in the dashboard, there was no immediate need to continue updating this information,” the agency wrote.

Need for Reliable Data 

Delta is now the dominant strain of coronavirus circulating in the U.S. Because it’s more infectious and contagious than the other variants, the Centers for Disease Control and Prevention reinstated its recommendation that people wear masks indoors in areas where cases are high even if they’re fully vaccinated.

That’s why heath law experts say the public needs reliable data about cases.

“What people really need to know to protect themselves is, what are the cases in their area? Is there a surge?” said Tara Sklar, a professor of health law at the University of Arizona College of Law.

“There’s no reason for a public health authority to not disclose that aggregated de-identified information. It’s not giving out anybody’s Social Security number, name, or phone number. There’s no way in revealing that information you can say, ‘I know Tara Sklar is Covid-positive as of this date.’”

Hospitals have been apprehensive since the Trump administration announced they would be required to disclose standard charges for items and services in a final rule (RIN 0938–AU22) published in November 2019.

The vast majority of hospitals—94.4%—haven’t met one or more of the requirements since the rule took effect Jan. 1, 2021, according to a recent sample of 500 hospital websites conducted by Patient Rights Advocate. Right now many hospitals are getting warning letters if they don’t comply.

Rather than rescinding or modifying the Trump-era rule, the Biden administration has also proposed tougher sanctions. The Centers for Medicare & Medicaid Services suggested increasing the penalty for noncompliant hospitals in a July proposed rule (RIN 0938-AU43) regulating outpatient payment rates for acute care hospitals.

Hospitals can currently be fined up to $300 a day. If the proposal is finalized, the penalty would increase to at least $300 a day for smaller hospitals and $10 a bed a day for larger hospitals, but no more than $5,500 a day.

“Price transparency leads to lower and more uniform prices,” CMS Medical Officer Terri Postma said at a recent webinar. “Falling prices may, in turn, expand consumers’ access to health care.” The agency’s crackdown on anticompetitive practices feeds into the Biden administration’s larger goal of closing the equity gap in care.

The price disclosure requirements has put hospitals in a tough position, which many groups have been vocal about. Hospitals that publish their prices as-is could dissuade consumers from seeking care if they can’t afford the typical fee for treatment. Those that lower their prices as a result of being asked to publish them could hurt their revenue streams. Not complying with the rule opens hospitals up to monetary penalties that could get steeper.

The result is burdening “a workforce already under immense pressure,” as the Covid-19 pandemic rages on, America’s Essential Hospitals President and CEO Bruce Siegel said in a statement after the increased penalty was proposed.

Noncompliance

When hospitals are found noncompliant through an audit of their website, the CMS may provide them a written warning of their violations or request an action plan for correction, Postma said.

The CMS began sending warning letters to hospitals in April and had sent roughly 165 of them as of mid-July, according to a CMS spokesperson.

The “CMS intends to continue its monitoring and enforcement activities and will issue additional warning letters on a monthly basis going forward, as necessary,” the spokesperson said in an email.

Hospitals have 90 days to address their violations before the CMS determines “whether additional compliance actions need to be taken,” Postma said.

“We are simply showing hospitals through stiffer penalties: concealing the costs of services and procedures will not be tolerated by this Administration,” HHS Secretary Xavier Becerra said in a statement the day the proposed rule was released.

The CMS spokesperson confirmed that the agency has not yet issued any fines to hospitals.

Dissatisfaction

The Trump-era price disclosure requirements sparked legal action from major hospital groups when they were published, led by the American Hospital Association. The groups claimed the CMS overstepped its authority, but the final rule survived a lawsuit and an appeal in 2020, forcing hospitals to be more upfront about what they charge patients.

The groups are even more upset by the Biden administration’s latest move.

“We are deeply concerned about the proposed increase in penalties for non-compliance,” Stacey Hughes, executive vice president of AHA, said in a statement when the proposed rule was released.

The policy is moving in the “wrong direction,” Siegel said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Karl Hardy at khardy@bloomberglaw.com

Most U.S. hospitals are not complying with federal regulations requiring medical centers to post their prices online for patients to review, according to a new report by patient advocates.

The report, which surveyed the websites of 500 of the roughly 6,000 hospitals subject to the rule, found that 471 of the hospitals did not fully post the prices they charge patients and the rates they have negotiated with insurers. The federal price transparency rules took effect Jan. 1.

Hospitals’ failure to post prices is complicating patients’ ability to shop for care, said Cynthia Fisher, the founder of Patient Rights Advocate, which conducted the report and submitted a copy to the White House on Thursday. The nonprofit group said it believes its survey of transparency measures is representative of hospitals overall.

“Right now, we see these hospitals being anti-competitive and not posting their prices, including the prices that they’ve negotiated with insurers,” Fisher said. “We’ve seen wide price variation within the same hospital for the same services.”

The report comes one week after President Biden instructed his health department to enforce the hospital price transparency rules, which were crafted by the Trump administration. Hospitals that do not comply can face a penalty of up to $300 a day, which advocates say is insufficient to compel the industry — which has spent years fighting price transparency efforts and sued to block the rules — to post prices that hospitals have negotiated with insurance companies.

“We think that President Biden can continue to hold them accountable by enforcing stricter, higher and more meaningful penalties,” Fisher said.

The report faulted a number of hospitals in the D.C. region for not complying with all or part of the federal regulations.

For instance, the report said MedStar Georgetown University Hospital, MedStar National Rehabilitation Hospital and MedStar Washington Hospital Center did not comply with a requirement to post the cash prices that patients would pay. The hospitals’ price transparency disclosure forms instead say MedStar “does not have a standard cash price. The amount is determined based on patient-specific circumstances.”

MedStar spokesman Brendan McNamara said the system could not comment on the report’s findings until after a review.

“MedStar Health is committed to enhancing price transparency and is meeting federal requirements at all of our hospitals,” McNamara said.

BridgePoint Healthcare — a privately run system with facilities on Capitol Hill and near National Harbor — publicly posted what is known as a “charge master,” a technical list of items that are billed to insurers. But it did not post the more comprehensive list of prices for patients to navigate, Patient Rights Advocate said.

BridgePoint did not immediately respond to a request for comment.

Elected officials have pushed for greater health-care price transparency, although experts have cautioned that the policy’s effects may be limited.

In a December 2020 survey, the Kaiser Family Foundation found that 96 percent of Democrats and 91 percent of Republicans supported “making information about the price of doctors’ visits, tests, and procedures more available to patients.” But a follow-up Kaiser Family Foundation poll in May found that just 9 percent of adults were aware hospitals were required to post the information online, and only 14 percent said they or a family member had gone online to research the cost of hospital care in the past six months.

This is a very popular policy position, but it’s not something a lot of people at the moment are taking advantage of — or even know about,” said Mollyann Brodie, a Kaiser Family Foundation executive vice president who oversees the organization’s polling.

Some former Trump officials and advisers praised Biden’s call last week to enforce the price transparency rules.

“I couldn’t be more pleased” with Biden’s move, said economist and Trump adviser Arthur Laffer, appearing on a Fox Business show hosted by Larry Kudlow, who led the National Economic Council during the Trump administration.

“When the Dems do something good, we praise them,” Kudlow responded.

Brian Blase, a policy consultant who served as a special assistant to Trump and helped craft the last administration’s price transparency rules, credited the “positive signs” from the Biden administration but said the White House needed to demonstrate that it would actually impose the rules.

“It’s hard to know whether they are going to devote resources toward successful implementation or just talk about how they support transparency but not make it a priority,” Blase said.

The number of people dying with Covid-19 in U.S. hospitals is hitting previous highs in some hot-spot states with low-to-average vaccination rates, upending hopes the virus has become less lethal.

In Florida, an average of about 203 people a day are dying in the hospital with confirmed or suspected Covid, matching the state’s November peak, according to U.S. Department of Health and Human Services data. That’s a daily average of about 9 per million residents, the data show.

Louisiana, Arkansas and Missouri have also seen deaths among patients with Covid soar in the past two weeks.

Officials had hoped that targeted vaccination campaigns would dramatically reduce the number of fatalities associated with Covid. Hospital administrators say the vast majority of Covid patients haven’t been vaccinated.

The delta variant has proven alarmingly efficient at both sending younger and less-vaccinated populations to the hospital and finding the relatively small slivers of the vulnerable senior populations that haven’t been inoculated.

Seven-day average cases in Arkansas and Missouri signal that those waves are starting to reverse. Other leading indicators — including the effective reproduction number, which gauges the average number of people infected by one person with Covid — show that Florida and Louisiana may not be far behind. But hospitalizations and deaths lag infections, meaning health-care systems are likely to see continued pressure in the coming weeks.

Over the course of the pandemic, about 69% of deaths have occurred among U.S. hospital inpatients or otherwise in a hospital setting. The proportion of hospital deaths has risen slightly in recent months.

In Florida, the deaths are occurring as about 60% of the broad population and more than 93% of seniors have had at least one jab.

As recently as this month, Florida Governor Ron DeSantis said the delta wave appeared to be 70% to 75% less deadly than previous peaks. That gap — if it still exists — has shrunk substantially.

Florida publishes a weekly Covid report on Fridays. The latest one showed that cumulative official deaths had climbed by 1,071 in the previous period, a daily average of 153. But the data have a significant lag and reflect many deaths that occurred weeks ago or longer. Daily Florida updates from the U.S. Centers for Disease Control and Prevention are highly incomplete for the most recent days of deaths.

The HHS data provide a snapshot of fatalities among Covid patients. Reporting was limited before late July 2020. The figures are different from official Covid death counts, in which death certificates are reviewed. While the patients had confirmed or suspected Covid when they died in the hospital, it’s possible that some of the deaths weren’t caused by Covid.

The pledge, in a letter released early Friday, is a major rift that threatens the carefully choreographed, two-track effort by congressional Democrats and the Biden administration to enact both a trillion-dollar, bipartisan infrastructure deal and an even more ambitious — but partisan — social policy measure. The nine House members are more than enough to block consideration of the budget blueprint in a House where Democrats hold a three-seat majority.

The Senate passed the infrastructure bill on Tuesday with 69 votes, including 19 Republicans. It then approved, on a party-line vote early Wednesday, a $3.5 trillion budget resolution that, if passed by the House, would allow Democrats in both chambers to assemble the social policy bill this fall without fear of a Republican filibuster in the Senate.

If they stick to their position, Democratic leaders and President Biden face their first major test in the process. More than half of the nearly 100-strong Congressional Progressive Caucus has taken the opposite position, saying they will not vote for the infrastructure bill until they have a social policy measure funding their priorities: climate change, education, health care, family leave, child care and elder care.

Ms. Pelosi has called the House back early from its summer recess to consider the budget resolution the week of Aug. 23. To assuage the progressives, Ms. Pelosi promised that she would not bring the infrastructure bill to a vote in the House until the Senate passed the social policy bill. The liberal progressives fear that once the infrastructure bill is signed, moderate Democrats in the House and Senate will withdraw their support for the far-reaching social policy measure.

But that social policy bill might not pass until well into the fall, if ever, given the 50-to-50 partisan split in the Senate. And moderate House Democrats say delaying a vote on infrastructure runs the risk of unforeseen events derailing it.

“With the livelihoods of hardworking American families at stake, we simply can’t afford months of unnecessary delays and risk squandering this one-in-a-century, bipartisan infrastructure package,” reads the letter, which has Representative Josh Gottheimer, Democrat of New Jersey, as the first signer. “It’s time to get shovels in the ground and people to work.”

With the promised defections from the Progressive Caucus, it would appear that Ms. Pelosi faces a stalemate, lacking the votes to either deliver the infrastructure bill to the president ’s desk or advance the budget resolution needed to protect the final legislation from Republican obstruction.

On Friday, Ms. Pelosi was sticking to her position that the “hard infrastructure” legislation, which funds roads, bridges, tunnels, rail, transit and broadband, must be packaged with the social policy bill, or what Democrats are calling “soft infrastructure” — social welfare and climate change projects, financed by significant tax increases on wealthy individuals and corporations.

Senior leadership aides framed it as a numbers game: scores of Democrats say they will not vote for one without the other, versus the nine on record that want action now on infrastructure.

But one side will have to blink.

Until now, most congressional Democrats had been optimistic that both measures could find enough support.

“This is President Biden’s agenda, this is the Democrats’ agenda, this is what we ran on and we need to deliver,” Representative Ilhan Omar of Minnesota, a leader in the Progressive Caucus, said of the social policy bill. “It is important for us not to miss the mark, and I don’t see a conflict.”

But her moderate colleagues do. “We will not consider voting for a budget resolution until the bipartisan Infrastructure Investment and Jobs Act passes the House and is signed into law,” they wrote.

That sentiment may go beyond the nine. Other more moderate Democrats, who declined to sign, have also said they very much want an immediate vote on the infrastructure bill.

“This is a once-in-a-generation infrastructure bill, and I think we should strike while the iron is hot,” Representative Elissa Slotkin, Democrat of Michigan, said. “We should bring it to the House and vote on it as soon as possible.”

The draft letter was signed by Mr. Gottheimer and Representatives Filemon Vela of Texas, Henry Cuellar of Texas, Ed Case of Hawaii, Kurt Schrader of Oregon, Carolyn Bourdeaux of Georgia, Jared Golden of Maine, Vicente Gonzalez of Texas and Jim Costa of California.

Virtually all of them come from swing districts or areas of the country that shifted toward former President Donald J. Trump. Mr. Gottheimer in 2018 won a seat that had been long occupied by Republicans. Mr. Golden, from conservative northern Maine, has often bolted from the Democratic position.

Ms. Bourdeaux, from suburban and exurban Atlanta, was the only Democrat in 2020 to win a Republican district. As Georgia’s Republican state legislature and governor begin redrawing district lines, she will be one of the most vulnerable Democrats in 2022.

Three of the nine are Latinos from Texas, which saw a marked shift in Hispanic voting toward Mr. Trump.

The nine could be running a big political risk by putting their names on paper. As one leadership aide put it, the legislative offer is a package deal, not an à la carte menu, and they will face enormous pressure over the next two weeks to fold.

“This is now up to Democrats,” said Representative Tom Malinowski, Democrat of New Jersey, who toured infrastructure projects with Mr. Gottheimer and Transportation Secretary Pete Buttigieg as the administration was pressuring lawmakers to move forward. “We have a large and diverse Democratic caucus, and the important thing is to pass all of this with substantial Democratic support.”

He added, “The one thing we know for sure as Democrats is, the responsibility is on our shoulders.”

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