Trump Provides Leeway to Employers to Withhold Birth Control Coverage

On October 6, 2017 President Donald Trump signed an executive order calculated to provide employers more opportunities in denying coverage concerning contraceptives. Under the Affordable Care Act (“ACA”), most health plans are required to cover all methods of birth control approved by the Food and Drug Administration without charging women for them. Although religious employers and some private employers with strong religious objections are exempt, very few met the requirements and had to provide the contraception.

President Trump’s executive order officially opens the door for many companies or nonprofit organizations with religious or moral objection to contraception to stop offering it. The move has been long anticipated given the fact that President Trump issued an executive order on “religious liberty” in May 2017. Over 55 million US women have birth control coverage with zero out-of-pocket costs, according to the National Women’s Law Center. Moreover, according to the center, Obamacare saved women an estimated $1.4 billion on birth control pills alone in 2013. To further efforts against the executive order experts have relied on the fact that many women use contraception methods for more than pregnancy prevention. On the other side, Health and Human Services officials claim the new rule would have no impact on “99.9% of women” in the United States. The agency calculated that at most, 120,000 women would be affected: mainly those who work at the roughly 200 entities that have been involved in 50 or so lawsuits over birth control coverage.

Notwithstanding what the early headlines may have inferred, the executive order does not eliminate the ACA’s contraceptive coverage guarantee. This issue is the unknown factor of how many individuals will lose coverage because an employer will claim a religious or moral exemption. A 2015 study from the Henry J. Kaiser Family Foundation estimated that 3% of all nonprofits and 10% of the largest nonprofits have been using the accommodation. There are more than 1.4 million nonprofits in the United States and thousands consist of hospitals, long-term care facilities, schools, and charities—are affiliated with the Catholic church, the hierarchy of which objects to contraception.

Time will tell whether these religious based nonprofits will continue to use the accommodation or whether they will instead actively deny contraceptive coverage to all of those employees, dependents, and students.

Hospitals Challenged by the Required Care to Undocumented Immigrants

Medical institutions are facing a dilemma in providing care to undocumented immigrants. While being required to administer emergency care upon a patient’s arrival, once stabilized, providers are finding it difficult to place these individuals in long term care and other sub-acute care facilities. This is the result of their immigration status, which prevents many of the potential financial compensation that might otherwise be available via Medicare, Medicaid or private payor. Without any insurance, these sub-acute care facilities refuse to take the patients leaving the acute care facilities with patients that are unable to be discharged and have no source of funding for their care.

Undocumented immigrants typically have no insurance so they rely on emergency rooms. Federal and state laws require healthcare providers to provide care regardless of legal status and/or ability to pay. The New Jersey “Take all Comers” Statute (N.J.S.A. 26:2H-18.64) dictates that no hospital shall deny any admission or appropriate service to a patient on the basis of that patient’s ability to pay or source of payment. However, this does not require a hospital to perform non-emergency or elective services. Hospitals across the country find themselves in a mystified state and ask themselves “What can we do?”. In order to best accommodate the needs of undocumented individuals and protect the hospital it is vital to make sure ER physicians are appropriately triaging patients and only admitting those that need to be admitted. Additionally, social workers and staff must be diligent in determining elective medical requests.

Many health care providers are left with the difficult decision of whether to attempt to try and return the undocumented immigrant to their native land via coordination of a transfer to an appropriate sub-acute facility there. This is referred to as repatriation. This process is not regulated by the federal government and limited case law exists on the subject. Moreover, no New Jersey State agency has a policy in place on the practice. Hospitals willing to pursue this course of action must be mindful that many patients do not wish to voluntarily go. Thus, hospitals in those situations should consider seeking a court order to permit an involuntary transport. As in many areas of the law, litigation is a constant threat and predicting the outcome is difficult given the lack of precedent in this area of the law. As such, hospitals should proceed with caution and following consultation with counsel whenever met with resistance from an undocumented patient. Ultimately, coordination with families and social workers is critical in exploring all options for both the patient and the hospital before resorting to litigation. However, when faced with a patient that refused to cooperate and the threat of limitless uncompensated medical bills, repatriation may be a hospital’s only remaining option.


What Is the OIG Focusing Upon During Its Hospital Audits?

A statutory mission is being carried out through a nationwide network of audits, investigations and surveys evaluating participating hospitals for compliance with the Medicare requirements. In doing so, auditors are assessing hospital compliance with the Medicare Conditions of Participation for all services, areas and locations covered by the hospital’s provider agreement. These hospital “surveys” are traditionally all unannounced and in many instances almost compels full cooperation given that refusal can put a provider’s enrollment in question and potentially result in the termination of a hospital’s Medicare provider agreement.

As hospitals learn to cope with governmental challenges to paid claims and long-standing reimbursement streams, recovery audit contractors are putting at risk great deals of money. For calendar year 2012, Medicare paid hospitals $148 billion, which represents 43% of all fee-for-service payments. As such, the Office of Inspector General (“OIG”) has emphasized continuous and effective oversight of Medicare payments to hospitals to protect the integrity of the program.

Several recent audits and recoupment efforts by the OIG have revealed a pattern of focus for many of these audits.  Four common areas reviewed and at risk for recoupment are:

  • Inpatient short stays;
  • Incorrectly billed as separate inpatient stays;
  • Incorrectly billed diagnosis-related-group codes; and
  • Manufacturer credit for a replaced medical device not reported

Inpatient Short Stays

Medicare payments may not be made for items or services that “are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member” (Social Security Act, § 1862(a)(1)(A)). It is important for hospitals to be extremely careful in billing correctly. In many instances of noncompliance hospitals are incorrectly billing Medicare Part A for beneficiary stays that should have been billed as outpatient or outpatient with observations services. Hospitals should pay specific attention to proper staffing resources, simplifying admissions and using the Electronic Medical Records systems to their advantage.

Incorrectly Billed as Separate Inpatient Stays

The Medicare Claims Processing Manual states that when a patient is discharged or transferred from an acute care hospital and is readmitted to the same hospital on the same day for symptoms related to, or for evaluation and management of, the prior stay’s medical condition, hospitals should adjust the original claim generated by the original stay by combining the original and subsequent stay onto a single claim. (Chapter 3, § 40.2.5) To avoid the overpayment, hospitals must pay particular attention to the billed diagnosis codes and compare the patients’ subsequent admissions.

Incorrectly Billed Diagnosis-Related-Group Codes

Medicare payments may not be made for items or services that “are not reasonable and necessary for the diagnosis
or treatment of illness or injury or to improve the functioning of a malformed body member” (Social Security Act § 1862(a)(1)(A)). In addition, the Medicare Claims Processing Manual states, “In order to be processed correctly and promptly, a bill must be completed accurately” (Chapter 1, § One example of such noncompliance occurs when a hospital submits a claim with a secondary diagnosis when the medical records did not support the coding of the diagnosis. The false submission results in an overpayment. Thus, hospitals must maintain proper staffing resources, proper use of Electronic Medical Records and updated medical documentation to make sure the proper codes are submitted.

Manufacturer Credit For A Replaced Medical Device Not Reported

Federal regulations require a reduction in the Outpatient Prospective Payment System for the replacement of an implanted device if (1) the device is replaced without cost to the provider or the beneficiary, (2) the provider receives full credit for the cost of the replaced device, or (3) the provider receives partial credit equal to or great than 50% of the cost of the replacement device (42 CFR § 419.45(a)). Services furnished after January 1, 2007 require the provider to report the modifier and reduced charges on a claim that includes a procedure code of the insertion of a replacement device if the provider incurs no cost or receives full credit for the replaced device. Hospitals must take particular measures to implement a process for identifying when a qualifying credit for a replaced device was received.

The above scenarios are some of the many audit issues that hospitals must be aware of and prepared for to avoid necessary repayments to the government. Such audits in the recent past have proven financially successful to the government. This coupled with the goal of rooting out fraud, waste and abuse suggests that such audits and investigations are only going to continue and likely increase in frequency. Thus, Hospitals must make every effort to improve and operate their compliance programs to proactively stay ahead of these issues and identify/correct them before the government comes in to perform an audit. Such efforts will only help to minimize the potential financial implications when the government inevitably comes knocking at a particular institution.

Federal Appeals Courts Disagree On Subsidies, Creating More ACA Uncertainty

Two separate federal appeals courts have come to opposite conclusions regarding key provisions of the Affordable Care Act (ACA) that make subsidies available to individuals who purchase coverage through federally-run exchanges in thirty-six states.  Approximately 4.7 million people, or 86 percent of all enrollees, qualify for a subsidy to assist in offsetting the cost of coverage in 2014.

Mid-morning on Tuesday, July 22, 2014 a three-judge panel of the U.S. Court of Appeals for the District of Columbia held that the IRS exceeded their jurisdiction when it extended subsidiaries through federally-run exchanges in the states refused or failed to set up their own.  Hours later, the Fourth Circuit of Appeals sitting in Richmond, Virginia upheld the IRS’s authority to grant the subsidies in question.  Statutory language in the ACA which authorizes subsidies in the form of tax credits specifically for insurance bought “through an exchange established by the State,” (emphasis added) is central to both rulings.  Although the contradictory decisions will have no immediate impact on consumers, they have cast additional doubt on the long-term survival of the ACA.

The first opinion, Halbig v. Burwell, held the IRS regulation authorizing tax credits in federal exchanges was invalid. Judge Griffith, writing for the majority, concluded that “the ACA “unambiguously restricts” the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.’”  The court reaffirmed the principle that the law is what Congress enacts, the text of the statute itself, and not the unexpressed intentions or hopes of legislators or a bill’s proponents.  Acknowledging the far-reaching ramifications of its ruling, Judge Randolph, concurring, noted the majority’s hesitancy, saying, “[w]e reach this conclusion, frankly, with reluctance. At least until states that wish to can set up their own Exchanges, our ruling will likely have significant consequences both for millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.” If upheld, this decision could lead many, if not most, individuals who received subsidies through a federally-run exchange unable to pay their future healthcare premiums.  The Department of Justice has indicated its intention to file a request that all eleven judges of the D.C. Circuit Court of Appeals hear the case en banc.

The ink had barely dried on Halbig when a three-judge panel of the Fourth Circuit Court of Appeals issued a unanimous contradictory ruling in King v. Burwell, a separate case that raised the same challenge to subsidies provided through federally-run exchanges.  In King, the court remarked that challengers could not “rely on our help to deny to millions of Americans desperately-need health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its test and structure, could not be more clear.”

The ACA has been subject to a series of legal challenges since it was enacted four years ago.  Although it has not escaped unscathed, it has thus far survived any cataclysmic damage from the courts.   It seems all but certain that the Government will ask that Halbig be heard en banc by the D.C. Circuit Court of Appeals where Democratic appointees outnumber Republicans seven-to-four.  If the judges vote along partisan lines, that would resolve the split with King from the Fourth Circuit.  These cases are not the last word on this issue, however; similar challenges to the federal subsidies are currently before courts in Oklahoma and Indiana.

Although the Supreme Court could be petitioned to review the matter, the Court is unlikely to intervene unless there is an obvious clash among Courts of Appeals.  Because it is not yet clear if a true schism exists among the Courts of Appeal on this issue, the Supreme Court is unlikely to consider the issue imminently, but would be more likely to do so if a split emerges in the coming months among the lower courts.  For the time being, the Government has indicated that the IRS will continue to provide ACA subsidies in the form of tax credits.

Silence…This Is A Hospital!

Patient safety and monitoring is always at the forefront of concern to hospitals. However, the idea of too many alarms going off and posing a danger to safety is a relatively new concept that hospitals should now consider. A recent Boston Globe investigation uncovered evidence that more than 200 deaths nationwide over the past five years have been associated with patient alarms. In many cases, it is believed that “alarm fatigue” is to blame.

“Alarm fatigue” refers to the response – or lack of it – of nurses to more than a dozen types of alarms that can sound hundreds of times a day – many of which are false alarms. This in turn can result in catastrophic instances where a nurse becomes desensitized to calls of distress and fails to react with the urgency necessary. Although exact data is difficult to ascertain at the moment since disclosure of such incidents are voluntary, hospitals are constantly using more and more devices that are hooked up to patients and sound an alarm when a situation arises.

Hospitals are now beginning to improve their monitoring as the Joint Commission has identified this as a 2014 national patient safety goal but unfortunate events will likely continue until the manufactures also improve the technology on their end by reducing the significant number of false alarms.

Walk into any hospital in this country and you will hear a constant stream of beeps which sound similar to Morse code. However, these beeps contain important information interpreted by the skilled doctors and nurses. It is important that the technology does not begin to do more harm than good by overwhelming the providers.