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American Hospital Association Criticizes Provision in CMS’ Inpatient Prospective Payment Systems Final Rule

Anthony Huber, Class of 2021, Belmont Law

On September 2, 2020 the Centers for Medicare and Medicaid Services (“CMS”) filed an unpublished version of the upcoming Inpatient Prospective Payment Systems (“IPPS”) Final Rule for 2021.  According to CMS, the finalized policies in the IPPS Final Rule support its key priorities such as, strengthening Medicare and fostering innovation.  CMS also claims that the policies will “help ensure that Americans continue to have access to a world-class healthcare system with access to potentially life-saving diagnosis and therapies by unleashing innovation in medical technology and removing barriers to competition.”

The final rule incorporates several important policies related to:

  • Price transparency and use of private-sector negotiated charge data in calibrating Medicare Severity-Diagnostic Related Group (“MS-DRG”) payment weights;
  • Payment rates;
  • New or revised MS-DRGs;
  • Uncompensated Care Payments; and
  • Wage index

For a summary of these policies, click here.

All provisions within the IPPS Final Rule are not without controversy, however.  Perhaps the most controversial provision is related to the price transparency and changes to MS-DRG payment weights. An MS-DRG is a classification system through which hospitals are paid for patient hospital stays.  This controversial provision, which will be in effect for cost reporting periods ending January 1, 2021 or later, would require hospitals to report on their Medicare cost report the median payer-specific negotiated rates for inpatient services by MS-DRGs for Medicare Advantage organizations.

The American Hospital Association (“AHA”) is one of the critics of this new provision.  According to a statement made by Ashley Thompson, AHA Senior Vice President for Public Policy Analysis and Development, “the AHA remains deeply disappointed that CMS continues to require hospitals and health systems to disclose privately negotiated contract terms with payers.”   Ashley Thompson further stated that “by continuing to focus on negotiated rates rather than expanding access to a patient’s out-of-pocket costs, [CMS] fails to meet the goal it set for itself—assisting consumers in becoming more prudent purchasers of health care.” As a result, Ms. Thompson opined that “[the policy] will require hospitals to divert critically needed resources during [the] pandemic to administrative tasks that will not benefit patients.

On the other hand, CMS argues that “the additional calculation and reporting of the median payer-specific negotiated charge will be less burdensome for hospitals” because the payer-specific negotiated charges used by hospitals to calculate these medians are payer-specific negotiated charges for service packages that hospitals are already required to publicize under the Hospital Price Transparency Final Rule.

 

Works Cited:

Tennessee COVID-19 Recovery Act

 

Jacob Freeland, Class of 2021, Belmont Law

Tennessee Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act on August 17, 2020. By doing this, Tennessee joins a growing list of states that have enacted state laws that provide expansive protections to various individuals and organizations from actions arising from loss, damages, injuries, or death that has arisen from the COVID-19 pandemic.

Under this act, Tennessee will provide these protections to all applicable “persons”, unless there is clear and convincing evidence of gross negligence or willful misconduct. According to the legislation, “person” covers a wide variety of entities including individuals, healthcare providers, sole proprietorships, corporations, limited liability companies, partnerships, trusts, religious organizations, associations, nonprofit organizations, and any other legal entity regardless if formed as a for-profit or not-for-profit entity.

According to the law firm of Waller, Lansden, Dortch and Davis, who’s government relations team worked very closely with the Tennessee Chamber of Commerce in passing this legislation, the Act requires a heightened pleading standard. Under this heightened standard, any claimant in any action alleging injury arising from COVID-19 is required to do the following:

    1. File a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; and
    2. File a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written statement from a physician duly licensed to practice in the state or a contiguous bordering state and competent to express an opinion on exposure to or contraction of COVID-19, which confirms the physician’s belief that the alleged injury was caused by an alleged act or omission of the defendant or defendants. A claimant’s failure to comply with the above described pleading requirements will, upon motion, make the claim subject to dismissal with prejudice. In addition, the Act provides specific civil liability protection for governmental entities and public colleges and universities for any injury arising from COVID-19, unless the claimant successfully proves and complies with the pleading standards described above. The Act applies to all prospectively filed claims arising from COVID-19. In response to concerns raised about pending COVID-19 related lawsuits, legislators negotiated the addition of a “grandfather clause” that excludes claims occurring before August 3, 2020 in which:
    3. A complaint or civil warrant was filed;
    4. A notice of claim was filed with the Tennessee Claims Commission; or
    5. Notice was satisfied under state law pertaining to healthcare liability claims.

According to Governor Lee, the goal of the law is to protect businesses by preventing further economic consequences to businesses that have already been hit hard by the COVID-19 crisis, while still providing an avenue to hold bad actors accountable. Additionally, because of these expansive protections and heightened pleading standards, businesses and individuals that conform to applicable reopening guidelines stand a far better chance of being protected from liability under claims arising from COVID-19, which will hopefully provide businesses with more confidence in re-opening and helping to stimulate the Tennessee economy.

This Act is an example of the many challenges that state governments are facing in regard to the many difficulties and competing interests that have presented themselves during this pandemic. The Tennessee government feels that this Act provides a delicate balance which both ensures justice for individuals who have wrongly been injured as a result of the pandemic, while also providing business with confidence to attempt to continue operating without fear of being bombarded with lawsuits due to liability concerns.

 

Works Cited

Shani Rivaux, Ian Wahrenbrock, Tennessee Passes Broad COVID-19 Liability Shield Legislation, Pillsbury (Aug. 20, 2020), https://www.pillsburylaw.com/en/news-and-insights/tennessee-passes-broad-covid-19-liability-shield-legislation.html.

Wendy Keegan, Tennessee Governor Bill Lee signed the Tennessee COVID-19 Recovery Act, Husch Blackwell (Aug. 21, 2020), https://www.healthcarelawinsights.com/2020/08/tennessee-governor-bill-lee-signed-the-tennessee-covid-19-recovery-act/.

Nicole Watson, Tennessee Enacts COVID-19 Recovery Act, Waller (Aug. 19, 2020), https://www.wallerlaw.com/news-insights/3738/Tennessee-enacts-COVID-19-Recovery-Act.

Covid-19 Response – Temporary Altering of Nurse Practitioner Scope of Practice Requirements

David Brust, Class of 2022, Belmont Law

In response to the COVID-19 pandemic, twenty-three states made temporary changes to their scope of practice requirements for nurse practitioners (twenty-two of the states are classified as reduced or restrictive practice states). One of the most common changes states made was suspending or modifying physician supervision or collaboration requirements. These changes ranged from simply allowing physicians to supervise more nurse practitioners than normal to completely suspending the requirement that a nurse practitioner have a supervising physician. One noticeable trend is that states with larger rural areas, such as Kansas, Louisiana, West Virginia, and Wisconsin, took the more drastic step of suspending collaboration agreement requirements. Likewise, states where COVID-19 cases were initially very high, such as New York, New Jersey, and Massachusetts, also chose to suspend collaboration agreement requirements.

Other popular changes included modifications to licensure renewal or prescribing authority. For example, Kentucky temporarily waived its requirement that nurse practitioners have a supervising physician in order to prescribe controlled substances. A move that is largely unrelated to COVID-19 but allows other medical services to continue uninterrupted during unprecedented times. Moreover, South Carolina issued an emergency order that allowed nurse practitioners licensed in neighboring states North Carolina and Georgia to practice in South Carolina, so long as they continue the collaborative agreements within their home state. This change was made to allow South Carolina citizens to continue seeing their providers who live in North Carolina or Georgia by utilizing telemedicine.

Here in Tennessee, nurse practitioners authorized to prescribe medication were temporarily able to do so without a supervising physician. Additionally, Tennessee suspended notice requirements related to collaboration agreements and waived the requirement for chart reviews and monthly supervising physician visits. However, Governor Bill Lee allowed said changes to expire with Executive Orders 15 and 28 on May 12, 2020 and they have not been renewed.

Works Cited:

https://www.aanp.org/advocacy/state/covid-19-state-emergency-response-temporarily-suspended-and-waived-practice-agreement-requirements

https://llr.sc.gov/nurse/pdf/PUBLIC%20HEALTH%20STATE%20OF%20EMERGENCY%20ORDER%202020_BON_PH_2.pdf