Federal Court Rejects American Hospital Association Challenge to Trump Price Transparency Rule

On June 23, 2020, the United States District Court for the District of Columbia denied the American Hospital Association’s (AHA) summary judgment motion claiming the Trump Administration had exceeded its authority and violated the First Amendment when it issued a new rule requiring greater price transparency.

The Opinion is attached in the link below.  It begins by stating “the impenetrability of hospital bills is legendary”, “arcane”, and “mystifying”.

By way of background, the Affordable Care Act of 2010 required hospitals to post a list of their standard charges.  For the next 8 years, hospitals were able to satisfy the technical requirements of this Act by posting chargemasters.  However, the standard charges and the actual prices are, as everybody knows, essentially unrelated to each other.

On June 24, 2019, President Trump issued an Executive Order, identified in the Opinion, directing HHS to promulgate regulations requiring hospitals to post standard charge information and actual price information.  The final rule, also explained in the Opinion, is scheduled to go into effect January 1, 2021.  HHA and other plaintiffs sought summary judgment banning the rule has having exceeded HHS’ statutory authority.

HHS filed a motion for summary judgment, seeking the opposite.  The Court concluded HHS had fulfilled its duty to examine the evidence before issuing a final rule, had acted appropriately and with its statutory authority, and rejected HHA’s motion and granted HHS’ motion.

THE AMERICAN HOSPITAL ASSOCIATION v ALEX M AZAR II

Will COVID Finally Bring Telehealth Professional Licensing into the 21st Century?

The COVID pandemic has illuminated the need to modernize professional licensing.  Although professional licensing has always been a necessary vigilance with licensing has always been appropriate, and never more so than as highlighted by the opioid epidemic and telemedicine fraud schemes when physicians could issue prescriptions and orders for services over the internet for patients with whom they had no meaningful professional contact, there is obviously new interest in this area.  State licensing boards were appropriately vigilant, although perhaps they overreacted, because the shortage of available healthcare providers has dramatized the deficiencies of state-by-state licensing and unnecessary bureaucracy.

 

Professional licensing in the age of instant information access has confirmed the necessity for some degree of reciprocity or national licensing.  For those that oppose national licensing, the most effective solution is probably the multi-state licensing compact promulgated by the Federation of State Medical Boards (FSMB).  Almost 30 states participate in the Interstate Medical Licensure Compact (IMLC) now, and allow physicians to qualify for multi-state licensing with the participating physicians without the need of individual state-by-state licensing.

 

This should not be confused with expanding the scope of practice.  The COVID pandemic has also prompted state licensing boards to relax scope of practice restrictions or perhaps just suspend enforcement and, when the pandemic is over, those who would have benefited from the expanded scope of license will resist retrenchment, presumably citing the efficacy of the process as highlighted by the COVID experience.  However, the data from the COVID experience will be so jumbled for several years that it is unlikely to actually prove the effectiveness of expanded scope of practice, but it does highlight the need and appropriateness of reviewing those issues.

CMS Issues Toolkit to Aid Nursing Homes in Fighting COVID-19

Yesterday (May 13, 2020), the Centers for Medicare and Medicaid Services (CMS) issued a 74-page “toolkit” to help nursing homes mitigate COVID-19 in their facilities.  A copy of the CMS publication can be found here:  https://www.cms.gov/files/document/covid-toolkit-states-mitigate-covid-19-nursing-homes.pdf

The toolkit provides resources dedicated to addressing the very specific challenges facing nursing homes during this crisis.  It is to be used by nursing homes, state and local officials, health care providers and anyone else with a role in assisting our most vulnerable during this crisis- nursing home residents.  The toolkit provides quality improvement assistance and seeks to help create and implement strategies to combat COVID-19 spread within nursing homes.  It provides state-specific resources, where applicable.

 

Priority COVID-19 Fraud Enforcement

Although the Office of the Inspector General (“OIG”)  has previously announced that it would exercise discretion with respect to financial arrangements entered into to facilitate and enhance the availability of COVID-19 testing, the attached Memorandum from the Office of Attorney General also indicates enhanced enforcement scrutiny with respect to fraudulent testing.

COVID Impact: HIPAA and Privacy

The following are just some random thoughts or curated information regarding the impact the COVID pandemic will have on privacy in general, and health information privacy in particular.

I have attached a link to information issued by HHS explaining that, not only are HHS and OCR specifically advising that the release of patient information regarding COVID infections is expressly being permitted as part of a nationwide public health emergency, but that in fact HIPAA always allowed that.

Bloomberg Law reports that Apple and Google are building security measures into their COVID-19 contract tracing plan to ward off cyber criminals, but also warn that government health agencies lack the resources and capabilities of these tech giants and that there can be “really sensitive data going to places that aren’t equipped for it”.

The Wall Street Journal reports that governments, especially China, South Korea and Taiwan, are using cell phone tracking technology without the permission from individuals to perform contact tracing.  If you are familiar with how Bluetooth technology allows your identity and location to be tracked for purposes of GPS, advertising blasts, social communicating, etc., you can really see how this information could also be used to track the location of infected individuals, presuming the infection data (which might be available through the less than adequately protected government agencies) could be linked to the cell phone location.

Many countries, including specifically the Netherlands, are using camera cars usually associated with Google View and GPS updating to monitor compliance with stay-at-home orders, much the same way as cameras are used to issue speeding tickets and with the use of facial recognition can presumably issue quarantine tickets.  Finally, cell phone tracking data could also be used to monitor compliance with quarantine or stay-at-home orders, in much the same way as ankle bracelets are used for house arrest.

Just some random thoughts.  For additional information contact Mike Cassidy.

CMS Issues Blanket Waivers for Stark Physician Self-Referral Law Sanctions

Attached is a PDF issued by CMS regarding blanket waivers of the Stark Law in order to allow physicians and hospitals to adjust 18 different potential financial relationships in order to deal with the COVID-19 emergency.  The waivers were issued on March 30, 2020, with a retroactive effective date of March 1, 2020.  They will terminate in accordance with conditions established in Section 1135(e) of the Social Security Act, which essentially provides they will be tied to the duration of the national emergency.  Please contact us if you have further questions regarding these issues.

OCR Relaxes HIPAA Rules for COVID-19 Disclosures

Although many believe the HIPAA rules already allow for disclosure of COVID-19 cases on the basis of a public emergency, OCR just issued Guidance, attached in the link below, confirming disclosure is permitted when needed to provide treatment, with the notification is required by law and in order to prevent or control the spread of a disease or prevent or lessen and imminent threat to public safety.

OCR Guidance

COVID-19 and Physician WRVU Productivity

A vast majority of current physician employment contracts, both with larger systems and in individual practice, have some sort of productivity component for compensation, dependent upon the production of:

  • WRVUs (Work Relative Value Unit)
  • Collections
  • Net Profits

Even if there are no negotiated “resource” provisions, most contracts also have what was always thought to be just generic obligations of the employer to provide appropriate resources–which they are not necessarily doing if the “offices are closed”, or there are some other restrictions.

I would suggest it is not good planning to wait until you see what happens.  Perhaps you, or a group of you, can initiate the discussion, request postponement of the productivity requirements, etc.

Contact Mike Cassidy if you would like to discuss.

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