Physicians

Executive Order GA-40

On June 19, 2020, the Texas Department of Insurance adopted final rules specifying patient notice and election requirements in order for out-of-network providers to balance bill. The final rules replace similar emergency rules that were adopted on December 18, 2019.

Under the new rules, which are meant to implement legislation passed in 2019 by the Texas Legislature, out-of-network providers are prohibited from Balance Billing for nonemergency services unless a patient elects, in writing, to obtain the service from the out-of-network provider. The patient’s election is only effective if the provider satisfies the following notice and disclosure requirements: (1) the patient is provided with a “meaningful choice between an in-network provider and an out-of-network provider,” (2) the patient is not “coerced” into choosing the out-of-network provider, and (3) the patient is provided with a written notice and disclosure. The notice and disclosure statement must be signed by the patient at least 10 business days before receiving any care.[1]

CARES Act Reporting

Under new guidance from the U.S. Department of Health and Human Services (HHS), hospices and other providers who received CARES Act Provider Relief Fund payments can hold off on filing their first quarterly compliance report, slated to be due on July 10, 2020.[1] Instead, HHS states that it will develop its own report and this report itself will contain “all information necessary for recipients of Provider Relief Fund payments to comply with” the quarterly reporting requirements under the Relief Fund Terms and Conditions.

The Federal Communications Commission (“FCC”) has opened the COVID-19 Telehealth Program Application portal and is now accepting applications for the COVID-19 Telehealth Program (the “Telehealth Program”). Authorized by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), the Telehealth Program will provide $200 million in funding to assist eligible health care providers deliver telehealth services to patients in their homes or other mobile locations in an effort to combat the novel Coronavirus 2019 disease (“COVID-19”).  The funding is available for eligible health care providers responding to the COVID-19 pandemic by fully compensating providers for their telecommunication services, information services, and devices necessary for them to provide critical telehealth services. Notably, the Telehealth Program is not currently available to certain types of health care providers, including for-profit providers. Consequently, some providers, including local hospitals that are part of a larger for-profit health system, may find themselves ineligible for telehealth funding.

At Husch Blackwell we understand the financial hardships our healthcare industry clients face in the midst of the COVID-19 pandemic. While you have no doubt heard about the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act signed into law on Friday, March 27, 2020, we want to make sure you are aware of the estimated $377 billion in Small Business Administration (“SBA”) relief that may be available to you as an eligible small business. We encourage you to act immediately so that you may secure funding as quickly as possible.

Texas Comptroller Glenn Hegar announced last week that he will delay the implementation of a sales tax on medical billing services until the Texas Legislature considers the proposed change when it meets in a regular session in 2021. The Comptroller’s staff will work with industry leaders leading up to the 140-day session in order to develop language that could amend the state’s sales tax statutes. The regular session of the Texas Legislature is scheduled to begin January 12, 2021, and end June 1, 2021.

Our prior article discussed the Texas Comptroller’s policy change in the fourth quarter of 2019, which would have rendered medical billing services subject to Texas sales tax, after longstanding reliance on rulings which exempted such services.

physicians

COVID-19 Update: CMS Waiver Information for Private Practice Physicians and Non-Physician Practitioners

By Hal Katz and Tamar E. Hodges

President Donald Trump declared the coronavirus pandemic a National Emergency on March 13, 2020. This declaration granted the Department of Health and Human Services (HHS) Secretary Alex Azar authority to relax certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements set forth in Section 1135 of the Social Security Act. The primary purpose of this waiver is to give providers greater flexibility to meet the needs of Medicare, Medicaid, and CHIP beneficiaries during an emergency.  CMS may issue “blanket waivers” after a declaration of a public health emergency when it determines many “similarly situated providers” would require certain waivers. CMS requires providers to put the state licensing agency and CMS Regional Office on notice if it intends to modify their operations in light of such waivers, although the blanket waivers are essentially automatic and, therefore, do not require the provider to submit a request. The waiver is in effect through the duration of the emergency or until CMS terminates the waiver.

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.

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. 

For decades, pundits, policymakers and consumer groups have called for better tools to make health care purchasing decisions easier.  Greater cost transparency and clear indicators of quality, they say, would help consumers make the right choices, which would lead to lower costs and better quality care.

If only it were as easy as using Angie’s List:  describe the need and up pops the names of local providers, along with comparative information on their performance.

Increasingly, such information and tools are available.  But their impact is unclear.

Since 2010, Medicare consumers have had an “Angie’s List” type of resource in Physician Compare, an online service produced by the Centers for Medicare and Medicaid Services (CMS).  The website was mandated by the Patient Protection and Affordable Care Act (ACA).  It serves a two-fold purpose, according to CMS:

Under Texas law, physicians that will be called upon to complete and sign a death certificate in Texas are required to register to file the certificate electronically with the Texas Department of State Health Services. The Texas Medical Board is authorized to take action against providers who do not register for electronic filing of death certificates under Tex. Health and Safety Code §193.005. Until recently, registration and filing of death certificates was made through the Texas Electronic Registrar (“TER”).

On January 1, 2019, the Texas Department of State Health Services replaced TER with a new platform, the Texas Electronic Vital Events Registrar (“TxEver”). TxEver supports all vital events operations, including reporting, registration, and amendments of birth and death records, and represents one of the first fully integrated vital records systems nationwide. TxEver will additionally support the Texas remote birth issuance system, which allows users to obtain copies of birth certificates without having to visit the vital records offices in their county of birth.