SO YOU STILL HATE ACA?

The Supreme Court recently rebuffed a challenge to the Affordable Care Act.  It is likely that others will continue to attack ACA, both legally and politically.  That is fine, one of the significant rights of our country is that we get to challenge our government and challenge out legislators to not only do the right thing constitutionally, but hopefully to pass sensible legislation and to improve legislation where necessary.

One way to consider changes that might be made legislatively to ACA is to look at proposals that are being put forth or considered by the Republican majorities in the U.S. Congress.  Some of those proposals would increase premiums for some and lower them for others.  Many of the proposals would lower premiums because they would eliminate current ACA provisions such as:

• Caps on how much health insurers can charge older people compared to younger people.
• Eliminate the requirement that there be basic benefits in every plan.
• Change the minimum actuarial values used for calculating health plans in different marketplace levels.

A few of the proposals eliminate one of the most popular provisions in ACA, the requirement that insurance companies cover preexisting conditions.

The problem, as everyone is discovering, whether progressive or conservative, is that any change that affects coverage, affects people.  This would appear to be obvious, but many who have been arguing changes have been happy to make sound bites without explaining the actual effect the proposals to change ACA would have on different risk pools.

Health insurance pools generally mean that young, healthy people subsidize older, sicker people.  While this may seem unfair at any given moment, over time people move from the young, healthy category to the older, sicker people category.  If you have been paying health insurance premiums for 20, 30, 40 or more years, you once subsidized the older and sicker, but you are now reaching the position where younger, healthier people are subsidizing your coverage.  Over time, this can be a fair plan.

This pool concept works best when everyone has coverage (“universal coverage”).  ACA has reportedly moved 10M people from the uninsured category to the insured category, hopefully meaning that the pool has gotten larger.  This is likely to become even more effective in the next few years as penalties increase the incentive to obtain health insurance.

These basic concepts cannot be changed by Congress, or commentators or critics or proponents of ACA.  These statistical realities have to be dealt with.  The questions are – Do we truly require universal participation?  and – What is the level of services and coverage we wish to have in our national health insurance requirements?  Those questions and discussions will likely continue front and center over the next few years as the debate switches from whether we will have ACA to what ACA should be.

DYING VETERANS EDITORIAL

What does it say about us when news reports indicate an internal VA document says “of the 847,000 Veterans who are in a backlog waiting for VA care, 238,000 have died”? 

Before we celebrate our next July 4^th or our next Veteran’s Day maybe we need to ask our senators, our congressman and ourselves some very serious questions.

CLOUD/INTERNET AND HIPAA

St. Elizabeth’s Medical Center has settled a HIPAA, privacy, security and breach notification claim with OCR by paying $218,400 and agreeing to a corrective action plan to correct deficiencies.  St. Elizabeth’s is located in Brighton, Massachusetts and offers in-patient and out-patient services.

Apparently, St. Elizabeth’s was using Dropbox or similar internet/cloud based application to share documents with PHI.  After a security incident, St. Elizabeth’s failed to timely identify and respond to the incident or mitigate the harmful effects of the security incident or document it and its outcome.  Apparently, some two years later St. Elizabeth’s submitted a notification to OCR.

What does this incident teach us?  Prior to using any internet or cloud-based application for transmitting, storing or sharing PHI, a security risk analysis is necessary.  It also teaches us that when any incident which involves a possible compromise of PHI occurs, an orderly and timely response to such an incident must be made and must be reported to OCR.  Although speculation, we believe that if St. Elizabeth’s had done any sort of credible risk analysis before hand, or had responded to the incident with apparent apathy, the fine and CAP would be much less onerous.

BAD SURPRISES

We have reported previously on surprise billing or balance billing on the basis that a patient received “out-of-network” care.  This can happen any number of ways, even where patient consumers have insisted on in-network care at in-patient or out-patient facilities.

New York has joined about one quarter of the United States in laws against balance billing due to out-of-network claims.  The system allows consumers to notify their insurers and the state that they believe they have received such a surprise bill.  The notice includes an “assignment of benefits” form.  By sending it to their plan and the provider, the plan and the provider must then communicate, without further billing to the consumer, and resolve their claims.  The law sets up a dispute resolution process for providers in health plans to settle on their fees.

Takeaway – expect to see other states, hopefully including Indiana, to take such a step to protect its citizens from these bad surprises.

STARK CHANGES

CMS has proposed a substantial number of changes to the STARK regulations:

• A new regulatory exception that would permit hospitals to provide payment to a physician or physician group to assist with the employment of NPPs including physician assistants, nurse practitioners, clinical nurse specialist and certified nurse midwives.
• A new exception for time share arrangements that are in writing, signed and specify the equipment, personnel, premises, supplies, items and services.  As usual, the arrangement cannot be conditioned on referrals, and the compensation over the term of the arrangement would have to meet fair market value standards.
• CMS proposes to clarify several technical issues regarding the in writing requirement and providing that agreements are writings and vice versa, and providing for a fix on signature requirements if the failure to sign is inadvertent, allowing up to 90 days to get the signatures.
• Most STARK Law exceptions do not allow compensation to “take into account” the volume or value of physician referrals.  Other exception regulations claim that the compensation cannot be “based on” or must be “without regard to” such the volume or value of such referrals.  The proposed clarification by HHS would use the uniform language of “take into account” to help eliminate any confusion.
• A 2009 case, Kosenska from the Third Circuit held that a physician’s use of the hospital’s facilities when treating hospital patients constitutes remuneration even if the hospital bills the payor for this and the physician bills the payor only for the physician’s professional fees.  CMS has clarified that it will not consider such arrangements remuneration because the physician and the hospital or similar facility do not bill each other for their facilities or services, but rather provide those to the patient to be paid by the payor.

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 in health practices in contract items, federal legal compliance, creation of practice entities, 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.