Event Recap - ACHEMT Choice Event - 2022 Legislative Outlook & Health Law Today
Posted by [email protected] on Mar. 28, 2022 / Subscribe 0
LEGISLATIVE UPDATE AND HEALTH LAW TODAY
David A. Weil II, J.D., M.B.A.
Monday, February 21, 2022
- Who Attended and What was Covered.
Ninety-four (94) attendees enjoyed our chapter’s second event this year, earning 1.5 F2F credit hours, during which Sarah F. Fontenot, Adjunct Professor, Health Law, Trinity University, did an outstanding job of updating us about relevant legislation and recent health law developments. She explained the details and implications of the No Surprises Act and the two Transparency Rules (one for hospitals and the second for health insurance companies), the status of site-neutral payments, appropriate use criteria (“AUC”) and other initiatives that will impact providers this year. She also focused our attention on current federal cases and the potential fallout from last June’s Supreme Court opinion upholding the Affordable Care Act (“ACA”).
She spoke about COVID and the Biden Presidency and the January 13, 2022 Supreme Court opinion upholding the United States Department of Health and Human Services’ vaccine requirement for healthcare workers, but blocking the Department of Labor Occupational Safety and Health Administration’s large employer vaccination mandate.
- Surprise Billings.
Surprise billings are a huge problem. One in five patients get hit with a surprise bill following an elective surgery. Surprise billings contributed to 2/3rd of all bankruptcies filled in America in 2013 and 2016. They are most commonly from out-of-network anesthesiologists and surgical assistants. This does not surprise me at all. I had my right hip replaced on May 27, 2021. I requested estimates and paid out-of-pocket for every component of the procedure. My anesthesiology bill was twice what was estimated, and my operation was without any complications and was done in fifty (50) minutes. Emergency care is another frequent source of surprise bills. On this topic, I highly recommend the book entitled The Price We Pay: What Broke American Health Care – And How to Fix It by Marty Markary, M.D. In the closing days of 2020, Congress enacted and President Trump signed into law the No Surprises Act, providing new federal consumer protections against surprise medical bills.
- Air Ambulance Price Controls.
States trying to regulate the air ambulance industry in recent years ran into an insurmountable problem. Air ambulances (both fixed wing and rotary) are covered under the Airline Deregulation Act of 1978, which was intended to encourage more competition. This law forbids states from regulating prices for any air carrier, which applies to air ambulances. Air ambulances (both fixed wing and rotary) are included under the No Surprises Act, bringing price controls to this industry for the first time in decades.
- Debate between Providers and Insurers over Out-of-Network Treatment Losses.
Prior to the No Surprises Act, there was two years of debate between providers and insurance companies about who would take the loss on out-of-network treatment. Hospitals and provider groups have pushed for a binding arbitration process that is commonly referred to as “baseball-style arbitration” because it resembles the way baseball players in Major League Baseball negotiate their salaries. An insurer and a provider each would propose their requested payment rate for the services provided and an independent arbitrator would determine a fair price. Insurers, on the other hand, prefer to use benchmark payment rates to resolve out-of-network bills. These rates would guarantee providers are paid a standard rate for out-of-network services based on in-network rates for services in a geographic region. At the time of signing, it appeared that the providers had won the argument, but the pendulum went back to the insurance industry preference under the Final Rules from CMS. So far, the insurers are prevailing and federal lawsuits filed by provider groups, including the Texas Medical Association, the American Medical Association (“AMA”), the American Hospital Association (“AHA”) and the Association of Air Medical Services, are pending.
- Hospital Transparency Rule.
The Hospital Transparency Rule was released in March of 2020 and went into effect January 1, 2021. The AHA sued the Trump administration, arguing that the government did not have the legal authority to require hospitals to publicly disclose privately negotiated prices, and lost in federal district court and in the United States Court of Appeals for the District of Columbia Circuit. Although the Hospital Transparency Rule went into effect on January 1, 2021, only 5.6% of hospital were fully compliant with the major price transparency rule with most failures centered on not positing payer-negotiated prices according to a recent analysis. 80.6% of hospitals did not publish payer-specific negotiated charges that were clearly associated with each payer and plan, and 51.6% did not publish any negotiated rates at all. Beginning January 1, 2022, CMS is setting a minimum civil monetary penalty of $300 per day that will apply to smaller hospitals with a bed count of 30 or fewer an a penalty of $10 per bed per day for hospitals with a bed count greater than 30, not to exceed a maximum daily dollar amount of $5,500. For a full year of non-compliance, the minimum penalty amount would be $109,500 per hospital and the maximum penalty amount would be $2,007,500 per hospital. CMS promises more robust enforcement of the Hospital Transparency Rule moving forward.
- Health Insurance Transparency Rule.
Frequently confused with the Hospital Transparency Rule, the Health Insurance Transparency Rule has been delayed at least six (6) months by the Biden Administration. Parts of the Transparency in Coverage rule were set to go into effect on January 1, 2022, with a phased implementation through 2024. Health insurance companies, however, now have until July 1, 2022, to publish these files. The Administration will also delay enforcement of certain provisions indefinitely, including the requirement that insurers publish prescription drug costs.
- Highly Illegal “No Poaching” Agreements.
Regarding the labor front, eighteen percent (18%) of healthcare workers have quit their jobs during the pandemic according to poll results from Morning Consult, a global privately held data intelligence company. This exodus is primarily driven by the pandemic, insufficient pay or opportunities, and burnout. Hospitals need to be warned that agreements to stop the loss of employees between competitors in a market are highly illegal. The Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission have dramatically increased their enforcement actions against “no-poaching” agreements, pursuant to which employers agree not to recruit or hire each other’s employees. The DOJ is now bringing criminal prosecutions of no-poach agreements on a regular basis.
- Medicaid Expansion and Supreme Court Decisions about the ACA.
In the Supreme Case of National Federation of Independent Business v. Sebelius (June 28, 2012), Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Alito and Kagan concluded that the Medicaid expansion provisions of the ACA were unconstitutionally coercive as written. Their opinion was that Congress does not have authority under the Spending Clause to threaten the states with complete loss of Federal funding for Medicaid if the states refuse to comply with the expansion. From 2012 to 2020, the number of states that did not expand their Medicaid programs dropped from twenty-four (24) to twelve (12).
What caused this shift given the Supreme Court decision? The 2021 Supreme Court Case of California v. Texas is telling with its 7 to 2 majority opinion. The 2017 Tax Bill reduced the ACA financial penalty for not being insured down to zero. The Attorneys General of 20 “red” states filed a lawsuit in federal court arguing that without a penalty, the individual mandate was meaningless and that the entire law (famously 1,990 pages) had to be struck down. Attorneys General from 18 “blue” states took up the other side of the case with the support of most health care professional associations, such as the AMA and the American Academy of Family Physicians, and patient advocacy organizations, such as the American Cancer Society and the American Heart Association. The Supreme Court ultimately concluded that the ACA would stand. In Sarah’s words, “Obamacare, a term used by President Obama himself, is here to stay!”
- Rural Hospital Closures and Medicaid Expansion.
Nearly one in five Americans live in rural areas and depend on their local hospital for care. Over the past 10 years, 130 of those hospitals have closed. The state of Tennessee, number two behind Texas in the nation for rural hospital closures, has experienced sixteen (16) hospital closures, with thirteen (13) of those being rural, since 2010. Of the ninety-five (95) counties in Tennessee, eighty-two percent (82%) are rural. After more than a decade, the adverse impact of not expanding Medicaid in “red” states like Texas and Tennessee, is evident through research. Although Medicaid expansion is unpopular in the state o Tennessee, evidence gathered from hospitals in states that have expanded Medicaid demonstrates that there may be relief, particularly for rural hospitals if the state of Tennessee ultimately goes that route.
- Sage Advice about Leadership in Turbulent Times.
Regarding Leadership in Turbulent Times, Sarah gave us sage advice:
- Focus on the Known
- Improving the experience of care
- Improving the population’s health (my favorite)
- Reducing the costs of health care
- Improving provider experience
- Focus on your Reality
- Your Community
- Your State (Tennessee Hospital Association Legislative Day)
- Learn
- Listen
- Collaborate
- Share Ideas
- Network
And, yes, that is what we do here at the ACHE of Middle Tennessee!
You can read more about certain topics discussed during the event and set forth above at the following links:
https://sarahfontenot.com/the-surprise-billing-problem/
https://sarahfontenot.com/who-loses-under-the-no-surprises-act/
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