Can We Talk?

Interoperability, the ability to access medical data without regard to the software or hardware involved, was the key promise of EHR.  We as taxpayers have spent billions of our dollars subsidizing the adoption of EHR but without the promised interoperability.

This lack of interoperability has allowed EHR vendors to reap great rewards while not delivering the basic promise of their product.  CMS now is moving to correct this problem.  CMS proposes to require adequate interoperability as hospital condition of participation and condition for coverage in order to receive Medicare payments.  This is probably the only way to force the industries involved in EHR to finally fulfill the promises of their products.  Hospitals see this rule as an unfair burden on hospitals to bear the brunt of forcing EHR operability.  Hospitals argue it will be difficult to measure compliance and there have been no adequate standards set for determining when interoperability is achieved.  While the American Hospital Association certainly has valid concerns about the CMS proposal, something must be done and something must be done soon to correct this problem.  Hopefully AHA participation will mean CMS and AHA together can come up with a sufficient rule to force the players in this market to actually deliver the product they promised.

Navy Vietnam Veteran’s Act

The Blue Water Navy Vietnam Veteran’s Act of 2017 was recently passed by the House of Representatives.  The Bill, if the Senate acts, and our President doesn’t veto it, expands a presumption of Agent Orange exposure from boots on the ground veterans to include those who served on ships in the territorial seas of Vietnam and veterans who served near the Korean DMZ.  Importantly, the Bill requires the VA to track down veterans whose Agent Orange claims were previously denied and extend benefits to children of certain Thailand service members born with Spina Bifida.

Contact your Senators.

Mission Failure

In June, Congress passed, and our President signed, the Mission Act.  This Act appears to help ailing US veterans get prompt care even if they need to see a civilian doctor paid for by the VA.

This may be less than it first appears.  The VA Secretary is not required to do anything since the VA Secretary is simply allowed to make rules for who gets civilian care.  The new VA Secretary, Robert Wilkie, confirmed on July 10, 2018, will decide if and how to make those rules.  The previous pick, Rear Admiral Ronnie Jackson, withdrew his name from consideration after reports about questionable travel expenses and criticism over poor care at VA Health Centers.

Hopefully, Secretary Wilkie will act decisively and quickly not only to greatly improve the 360,000 person workforce at VA (second largest federal department) but also, during the years it will take to revitalize and improve the VA, allow VA veterans who are not getting adequate healthcare service and just as importantly are not getting timely healthcare service to seek care outside the VA’s ailing system.

Medicare Appeals Backlog

Federal law continues to require a hearing and decision on Medicare claim appeals within 90 days.  CMS continues to daily violate federal law by failing to meet the 90 day standard.  According to Chief Administrative Law Judge Nancy Griswold, the average processing times for appeals increased to over 1,000 days in 2017.  In other words, the problem is getting worse not better.

CMS offered several alternatives processes to avoid the full 1,000 day delay but each of them requires that a provider appealing the denial of claims take a substantial discount from already low Medicare payment rates.

Ransomware Fallout

Allscripts, which bills itself as an industry leader in EHR, is faced with a class action lawsuit from a ransomware attack that took down the Allscripts’ servers for approximately a week.  Due to their customers’ dependence on the Allscripts EHR system, the ransomware attack effectively shut down many healthcare providers for a week.  The providers have sued seeking damages and lost profits.

This may be worth following since Allscripts claims their holding company was sued rather than the correct subsidiary and also claims it wasn’t Allscripts’ fault, it was an outside criminal act.  So far, the Illinois Federal District Court Judge is not impressed by Allscripts’ arguments.  This case may help determine whether a company can sell you its product based upon “industry leading” type statements and then when something goes wrong, claim it is everyone else’s fault.

VA Struggles

The Government Accountability Office released a report on the Veterans Administration.  The VA provides healthcare to 1,252 facilities including 170 medical centers.

GAO finds the VA does not know the number of physicians that provide care at VA centers, has constant HR turnover which makes recruiting physicians difficult and under pays doctors.  As of March 2018, there were 1,673 vacant physician positions.  The overall personnel shortage was 33,642.

As we recently reported, the VA has a new Chief and this report outlines several areas where the new Chief needs to make immediate and substantial progress.

Primary Care Doctor Shortage

Surprising no one, there continues to be shortages of new primary care doctors.  Anecdotal reports indicate starting pay for such primary care doctors is increasing much more rapidly than in the past.

A recent report shows LA Care Health Plan has committed $31 million to recruiting primary care doctors.  Much of this amount will go towards helping primary care physicians overcome financial hurdles to their practice and in particular in choosing smaller clinics over larger hospital system facilities.  These programs include medical school scholarships, education loan repayments, bonuses and physician salary subsidies (note LA Care is a $6+ billion independent public agency in the Los Angeles area).

Anthem Sued by Doctors

We had previously reported Anthem’s new/evolving ER charge payment policy was causing much concern among ER providers and hospitals.  In essence, Anthem determines after the fact whether the use of the emergency room was justified.  If Anthem decides it wasn’t justified, it refuses to pay or pays substantially less than the provider sought.  Georgia’s Piedmont Hospital and related facilities have sued Anthem previously over this policy and now the American College of Emergency Physicians filed suit seeking a halt to the Anthem policy and payment of the charges billed.

The underlying fight is whether the standard should be whether the patient as a prudent lay person would believe that he/she was experiencing an emergency or is the standard a medically based review after the fact as asserted by Anthem.  In short, Anthem pays based on the final diagnosis as opposed to the patient’s symptom claims at the time of the emergency.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.