Hospitals & Health Systems

Centers for Medicare and Medicaid Services (CMS) has issued broad waivers to assist in the national COVID-19 response. They impact all provider types and generally remove regulatory burdens that could restrict access to care. For example, the waivers remove bed limits on Critical Access Hospitals and will allow Long Term Hospitals to exclude from the 25 ALOS calculation patients who were admitted or discharged to “meet the demands of the emergency.” Restriction on the separation of patients in excluded units in IPPS hospitals are waived. The requirement for three days of hospitalization to receive skilled nursing coverage is also waived. There are a number of other waivers.

As the novel coronavirus outbreak continues, the federal government and commercial health insurers have taken significant steps to increase Americans’ access to treatment and testing. In the past week, the federal government and private insurers have issued a number of guidance documents expanding coverage and payment requirements in an effort to minimize the spread of the virus. As with any changes in coverage and reimbursement, healthcare providers offering telehealth services should carefully review these changes and take steps to ensure that all regulatory and coverage requirements are met prior to submitting claims for reimbursement.

I. Medicare

On March 6, 2020, the bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (“Coronavirus Appropriations Act”) was signed into law authorizing federal spending to combat the ongoing coronavirus outbreak in the United States. This Act, among other things, gives the United States Department of Health and Human Services’ (“HHS”) secretary the authority to temporarily waive certain Medicare requirements for telehealth services.

The Centers for Medicare and Medicaid Services (“CMS”) currently reimburses a limited set of telehealth services provided to Medicare beneficiaries subject to certain criteria under section 1834(m) of the Social Security Act. Generally, the patient receiving telehealth services must be located at one of eight “originating sites”, which include hospitals, physicians’ offices, and rural health clinics. In addition, the originating site must meet certain geographic requirements which have essentially limited the availability of telehealth to patients in rural areas. These requirements have long posed a hurdle to the expansion of telehealth despite the industry’s demand for lessened restrictions. However, with the rapid spread of the coronavirus and the possibility of facing large scale isolations and quarantines, lawmakers have signaled their willingness to expand access to telehealth to fight against this public health crisis.

Within the Coronavirus Appropriations Act is the Telehealth Services During Certain Emergency Periods Act of 2020, which sets forth the waiver authority for the secretary of HHS regarding the certain telehealth requirements. Under the Telehealth Services During Emergency Periods Act, the secretary is authorized to temporarily waive the originating site and geographic requirements for telehealth services provided to Medicare beneficiaries located in an identified “emergency area” during an “emergency period” when provided by a qualified provider. To qualify for the waiver, the provider must have treated the patient within the previous three years or be in the same practice (i.e., as determined by tax identification number) of a practitioner who has treated the patient in the past three years. The bill also lessens the telecommunications requirements by allowing Medicare beneficiaries to receive telehealth services via their smartphones (i.e., telephones that allow for real time, audio-video interaction between the provider and the beneficiary). Because the federal government has declared a nationwide public health emergency as a result of the coronavirus, the waiver will apply across the country until there is no longer a nationwide public health emergency.

A teaching hospital in Connecticut affiliated with Yale Medical School is facing age and disability discrimination allegations after imposing mandatory medical testing for doctors 70 and older who seek medical staff privileges.  The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed suit against Yale New Haven Hospital, claiming that subjecting older physicians to medical testing before renewing their staff privileges violates anti-discrimination laws.

According to the EEOC, the hospital’s “Late Career Practitioner Policy” dictates that medical providers over the age of 70 must undergo both neuropsychological and ophthalmologic examinations – a policy the federal agency claims violates both the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”).  The EEOC claims that the individuals required to be tested are singled out solely because of their age, instead of a suspicion that their cognitive abilities may have declined. The agency further charges that the policy also violates the ADA because it subjects the physicians to medical examinations that are not job-related or consistent with business necessity.

We are thrilled both to welcome four new hospice attorneys to Husch Blackwell and for the launch of their new podcast “Hospice Insights: The Law and Beyond.”

In this first episode, Meg Pekarske, Bryan Nowicki,  Erin Burns and Andrew Brenton discuss the exciting opportunities resulting from their move to Husch Blackwell. The episode is available…

There is a trend in healthcare toward customer-centrism—placing the interests of the consumer before all other considerations.  The trend may be slow in its growth, but for those healthcare organizations that embrace the idea and obsess over improving the consumer’s experience throughout their healthcare journey, there can be a payoff.  But improving consumer experience in healthcare takes a commitment and courage to venture outside of traditional comfort zones.

For years, the polarized debate over healthcare policy has included advocacy for a more consumer-directed healthcare system.  The argument in favor says consumers and providers alike must have more skin in the game—financial responsibility—and better information with which to make more consumer-like decisions.  For providers, the “skin” means risk-based contracts.  For consumers, it means higher deductibles and other out-of-pocket cost exposure.  There has been significant movement in this direction. 

This is the first of three blogs in a series discussing the shift many states are beginning to make towards limiting “Surprise” or “Balance Billing.” This first blog will focus on Texas Senate Bill 1264, which looks to end surprise billing in the State of Texas in certain circumstances. The second blog in this series will look at the similar law California passed in 2017 to see what kind of effects that law has had. The final blog in this series will discuss other proposed state and federal laws that look to continue the trend towards ending surprise billing.

Time is running short on the opportunity to comment on a proposed rule further increasing transparency in hospital pricing.  The rule was released July 29 and was quickly panned by providers and insurers over provisions requiring hospitals to publicly disclose the negotiated rates they have with third-party payers.

Comments on the rule are due September 27, 2019.

Action by the federal government to increase price transparency in health care is not new, of course.  Section 2718(e) of the Public Health Service Act (PHS) was added by the Affordable Care Act to require all hospitals to make public, upon request, the standard charges for the items and services they provide.  

Senate Bill 1264, which recently passed during the 86th Texas legislative session, places restrictions on certain out-of-network providers regarding the practice known as “balance billing” and establishes a process through which health plans and providers may resolve payment disputes. The bill is effective September 1, 2019 and applies to services and supplies provided on or after January 1, 2020.

I.  Balance Billing and SB 1264

The term “balance billing” refers to when a healthcare provider bills a patient for the difference between the reimbursement provided by the patient’s health insurance and the amount charged by the provider. SB 1264 places restrictions on balance billing by out-of-network (OON) providers of emergency services, facility-based services provided at an in-network healthcare facility, and lab and diagnostic imaging services that are related to an in-network service. The law disallows these providers from billing a patient for an amount greater than the applicable copayment, coinsurance, and deductible under the health plan based on the initial amount determined to be payable by the plan, or if applicable, a modified amount determined under the plan’s appeal process.

Bipartisan legislation to address surprise medical billing was introduced June 19 in the Senate Health, Education, Labor and Pensions (HELP) Committee.  Most notable for health insurers and providers is the way the bill tackles the biggest sticking point in the issue—mandating a benchmark rate to avoid pay disputes between health insurers and non-network providers.

Surprise medical billing is commonly the result of care received in an in-network facility, such as a hospital, but that included the services of a non-network provider, such as an anesthesiologist who is based at the in-network facility.