Defending the ACA, Surgical Gown Concerns, and more ....

MHA Joins Supreme Court Amicus Brief to Defend ACA

MHA joined 32 other state hospital associations last Wednesday in filing an amicus brief with the U.S. Supreme Court to defend the Affordable Care Act (ACA).
In December, the Fifth Circuit Court of Appeals ruled that the ACA’s individual mandate provision was unconstitutional. A coalition of states, including Massachusetts, is contesting that ruling and the hospital association brief last week supports the pro-ACA coalition. Also at issue is the “severability” of the individual mandate from the entire ACA. The ACA critics argue if the individual mandate is unconstitutional, then the entire ACA must be scuttled. ACA supporters, including MHA, endorse severability, meaning that even if the individual mandate falls, the voluminous other parts of the ACA should survive.
The amicus brief focuses on the “lesser-known but equally important provisions” of the ACA that have “foundationally changed the U.S. health care system.”
“The ACA’s ‘delivery reforms,’ which the Fifth Circuit and the district court did not mention in their opinions, transformed the way hospitals and health systems deliver and are paid for health care,” the hospital associations stated in a brief written by the Washington, D.C. law firm Zuckerman Spaeder. “These reforms make fundamental improvements in the quality and coordination of care and have become integral to the delivery of health care services in the United States during the almost ten years since the ACA was enacted.”
The associations argue that hospital investments in alternative payment models, readmissions and infection reduction strategies, among other innovations were all undertaken as a result of ACA mandates and are now at risk.
“Unless this Court grants certiorari and resolves the constitutionality and severability questions presented here, the valuable reforms designed to improve health care and lower cost will hang in limbo for several years,” they wrote. That uncertainty will, in turn, disrupt coverage of citizens, quality programs, hospital finances, bond ratings, and investments in facilities, among other deleterious effects.

Cardinal Health Surgical Gowns to Be Recalled

A “voluntary product hold” and pending nationwide recall of surgical gowns distributed by Cardinal Health of Dublin, Ohio has affected Massachusetts hospitals.
Cardinal Health notified its customer base that certain of its AAMI Level 3 surgical gowns supplied to the company through a manufacturing facility could not be guaranteed as sterile due to potential cross-contamination problems. AAMI Level 3 is a designation by the Association for the Advancement of Medical Instrumentation and signifies a gown that provides moderate fluid barrier protection and is used for the widest range of surgical procedures. The company said it is working with the FDA to resolve the manufacturing issue. Some MHA member hospitals said they had begun searching for alternative suppliers.
The hold and recall specifically affects certain lots of bulk non-sterile and single-sterile Cardinal Health surgical gowns and Presource procedure packs that include the surgical gowns. The specific lot numbers were being transmitted to hospitals through the company’s sales reps.
“We are advising customers to discontinue use and segregate all affected surgical gowns and procedure packs that include these affected surgical gowns from your current inventory,” Cardinal wrote, adding that it is ramping up production in non-affected facilities to cover potential product shortages.
The American Hospital Association, not the FDA, issued the notice about the Cardinal Health product hold. MHA in turn alerted the Massachusetts Department of Public Health.

Op-Ed: Richard Neal Has Right Idea on Surprise Billing

Baystate Health President & CEO Mark A. Keroack, M.D., and the President of the Hampden District Medical Society Subramony Subramonia-Iyer, M.D. penned an op-ed last week in the Springfield Republican explaining why the “surprise medical billing” solution being championed by U.S. Representative Richard Neal (D—Mass.) deserves praise.
Surprise medical bills occur when a patient unknowingly receives medical services at a location, or from a clinician, outside of the patient’s insurance network. Hospitals believe patients should never receive a surprise bill and should only be responsible for what they would customarily pay for in-network care as specified by their insurance policy. The thorny question is how to reimburse the out-of-network care.
Neal, as chair of the Ways & Means Committee, has promoted a solution whereby insurance companies and healthcare providers can first try to work out differences. If an agreement can’t be reached, the proposal calls for an impartial structured process to settle payment. Hospitals favor such a “baseball-style” arbitration process. If the provider and insurer cannot reach resolution on a payment amount, each side brings their “last, best offer” to the table. The arbiter picks one of the two offers and there is no middle ground.
“The Ways & Means proposal provides important protections and transparency for patients without undue government interference in private contracts,” Keroack and Subramonia-Iyer wrote. “It is directly responsive to the priorities of the hospital and physician communities and deserves widespread support. We commend Representative Neal for his extraordinary leadership on this issue.”

DPH’s Bharel Has Ideas for Battling “Substance Misuse Disorders”

DPH Commissioner Monica Bharel, M.D., testified before the U.S. House Committee on Energy & Commerce last Tuesday, explaining how Massachusetts has been able to achieve success in curbing the opioid crisis. Bharel also offered suggestions on how Congress could help the fight going forward.
She noted that when federal funding is tied specifically to “opioids” it eliminates the flexibility states need to address the “changing landscape of substance misuse, addiction, and co-occurring mental health conditions.” She urged use of the more inclusive term “substance misuse disorders” that would allow states to use federal funding to address methamphetamine, cocaine, and benzodiazepines, which are often used with opioids, as well as “the long-standing challenge of alcohol misuse and addiction.”
Bharel urged Congress to give states the flexibility to make naloxone available over-the-counter, and to give them ready access to rapid urine fentanyl tests, which are currently unavailable due to federal law. The DPH Commissioner also urged Congress to remove federal barriers for methadone and buprenorphine, thereby allowing medication for opioid use disorder “to be regulated more similarly to other chronic disease treatments and available within traditional healthcare settings to increase access and reduce stigma.”

A Chance to Comment on Duplicative Healthcare Measures

MHA is encouraging its membership to weigh in on recommendations for possible changes to the 2021 state Aligned Measure Set. The current 2020 measure set was developed for voluntary payer and provider adoption in global budget-based risk contracts, including commercial and MassHealth accountable care organization (ACO) agreements. 
Massachusetts created the Quality Alignment Taskforce in 2017 to help simplify the massive burden providers face in reporting measures. The taskforce is currently conducting the annual review of the measure set. As ACOs and hospitals currently face required measures through the MassHealth program, commercial payers, as well as federal entities such as the Centers for Medicare and Medicaid Services, ensuring alignment and reduction in duplication is important. A 2016 MHA survey of members found that providers spend an estimated $67 million annually on quality measurement and reporting.
The taskforce, on which MHA has a seat, has been able to identify and inform the 2020 measure set, but further alignment is possible. Last week the state asked interested parties to submit written recommendations for changes to the next Aligned Measure Set in 2021. The deadline for submissions to Quality.Alignment@MassMail.State.MA.US is February 10.

Hospitals: Move on McGovern’s Social Determinants Bill

Hospitals and other advocates are urging the U.S. House Energy & Commerce Committee to move forward on a social determinants of health bill that Massachusetts Rep. Jim McGovern (D) introduced in July along with Reps. Cheri Bustos (D-Ill.), Tom Cole (R-Okla.) and Cathy McMorris Rogers (R-Wash.).
The bill would make available up to $25 million to states to target high-need Medicaid patients, such as the homeless or mothers with post-partum depression. Grant money would be used to identify achievable outcomes through care coordination. The Social Determinants Accelerator Act (H.R. 4004) also calls on the U.S. Health & Human Services to convene an inter-agency technical advisory council on social determinants of health.
A companion bill was introduced in the Senate by Sens. Debbie Stabenow (D-Mich.) and Todd Young (R-Ind.).

Hospitals Ask Courts to Rule Against CMS ... Again

The regulatory-legal merry-go-round relating to Medicare reimbursement of certain services provided at grandfathered off-campus hospital provider-based departments continues.
As MHA has reported, a U.S. District Court ruled in September 2018 that CMS reimbursement cuts contained in the 2019 outpatient prospective payment system (OPPS) rule overrode congressional intent and had to be refunded to hospitals. Then, when the 2020 OPPS rule contained the same cuts, the judge refused to hospitals relief, saying they had not exhausted their administrative remedies; that is, they hadn’t first filed 2020 claims and had them rejected by CMS.
Last week, the American Hospital Association, other hospital groups, and some individual facilities that did, indeed, file 2020 claims and were underpaid, filed suit in the U. S. District Court for the District of Columbia.
“CMS may not contravene clear congressional mandates merely because the agency wishes to make cuts to Medicare spending,” the hospitals wrote, adding the move is especially egregious since the courts had already ruled the reimbursement cuts impermissible in the previous year’s OPPS rule.

53rd Annual Mid-Winter Leadership Forum

Well-known and highly respected Boston news reporter Janet Wu. Health & Human Secretary Marylou Sudders. A health system CEO, Dr. Stephen Klasko, generally considered to be one of the most innovative leaders in the field. And a Democrat-Republican panel -- featuring Mary Anne Marsh and Ginny Buckingham -- discussing the “politics of tomorrow” in what is inarguably one of the most charged political environments of a generation. These are just some highlights of MHA’s Fifty-Third Annual Mid-Winter Leadership Forum – one of the largest association gatherings of the year. The Friday, February 7 gathering begins at 8:30 a.m. and ends promptly at 2 p.m. Within that time, there will be dynamic speakers, lunch, and some time to meet with your peers from across the state. It’s a don’t-miss meeting – and it’s filling up fast. Visit here to view the agenda and register.

John LoDico, Editor