Legislative Weekly

January 8, 2024

CONTENTS

1. No Surprises Act (NSA) and Transparency Rules (TinC)
2. DC and Federal Update
3. State Activity
4. Reimbursement
5. Industry

HIGHLIGHTS: Extension planned for comments on CMS’ IDR proposed rule; Health Data, Tech, & Interoperability final rule released; Medicare reimbursement cuts still linger; Medicaid redeterminations paused in some states for noncompliance; Scary paper check scam story!

No Surprises Act (NSA) and Transparency Rules (TinC)?

HHS intends to reopen the comment period for submitting comments on the proposed rule “Federal Independent Dispute Resolution (IDR) Operations,” (but has yet to do so!). The rule was published on Nov. 3 and makes significant technical/procedural changes to the NSA IDR process.

• CMS has already received over 90 individual comment letters addressing the proposed rule, much of which has come in from the provider community. The comments include: requests for penalty enforcement if plans fail to negotiate; objection to batching limits; and objection to proposed IDR fees which some providers still find too high.?

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In response to a negative Gov’t Accountability Office (GAO) report on the NSA Independent Dispute Resolution (IDR) we talked about in December,? U.S. House Ways and Means Committee Chairman Smith (R-MO) took a parting shot at the Administration’s implementation of the NSA in an end-of-the-year public statement: ?

• “The federal government’s bungled implementation of the NSA has meant new surprises for patients facing reduced access to care, longer wait times, and smaller insurance networks… We will continue our efforts to hold the Biden Admin accountable for ignoring the law’s clear Congressional intent.”

DC and Federal Update

We reported last month that HHS’ Office of the National Coordinator for Health Information Technology (ONC) released the Health Data, Technology, and Interoperability: Certification Program Updates, Algorithm Transparency, and Information Sharing final rule, with new requirements applying mostly to certified Health IT systems.

• Relatedly, a recent Lown Institute report indicates that the average health system uses 18 different Electronic Health Record systems (EHRs), yet the systems don’t talk to each other. As an example of the problems associated with this lack of interoperability, a recent JAMA report found that, of 12K patients surveyed, nearly 700 were marked alive in the EHR… but were actually dead.
• This Health Data Management article examines why true EHR interoperability and data exchange have taken so long to accomplish.

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Physician groups are continuing to warn Congress about the consequences of the Medicare physician payment cuts effective Jan 1, stating that the cuts will worsen existing provider shortages and reduce healthcare access for older adults across the country.

• Adjusted for inflation, Medicare physician payments have declined 26% since 2001 according to the AMA.
• As a reminder, according to our sources, Congress isn’t likely to address this until at least February.

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CMS is amping up enforcement on states’ Medicaid redeterminations, including pausing terminations in 12 states. ?

• Concerns over the high number of procedural disenrollments, when people lose Medicaid coverage due to administrative errors but might still be eligible, have dogged the redeterminations process.
• As an example, Utah conducted a survey examining its Medicaid disenrollment and found that most residents removed did not try to re-enroll. The survey looked at over 1,000 disenrolled beneficiaries and found:

§? Almost 60% did not reapply;

§? About 40% found alternative coverage through their employer and 15% through the Marketplace:

§? 30% reported they were now uninsured, and faced difficulties reapplying to Medicaid even though they might well be eligible.

State Activity

The Center for Connected Health Policy published its end of the year summary of state telehealth legislation. Over 170 telehealth-related laws were passed last year in 42 states, including laws addressing state licensing, reimbursement, and professional in-person requirements.

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Kansas’ governor has announced a “middle of the road” revenue-neutral plan to expand Medicaid in the state after years of unsuccessful expansion attempts. A recent poll showed that 80% of Kansas citizens support expansion, and an estimated 150,000 residents would gain access to medical care if successful.??????????

• Gov. Kelly’s plan will include work requirements, similar to Georgia’s first-of-its-kind program that began earlier this year. While Georgia officials expected over 30,000 citizens to sign up in the first year of the program, so far less than 2,000 have signed up in the four months since the program began.

Reimbursement

Another reason to use electronic payments: Stolen paper checks are now easily bought and sold through the app Telegram, according to the NYT.

• The scam is low tech: Somehow between the sender and the recipient, paper checks are removed from the mail and sold through the app. The buyer can then deposit the check under a fake identity, withdraw the amount, and close the account.

The Industry

According to a new report, the job market might be stabilizing for US nonprofit hospitals after several years of high contract labor costs, staffing shortages, and burnouts.

• The report found that wage growth has remained flat over the last few months, payrolls have continued to rise, and the number of job openings is at its lowest level since early 2021.
• In spite of this, the outlook for the sector is still labeled as “deteriorating” and recruiting staff is still hyper-competitive. The report indicates that health systems should be prepared to offer higher wages and better benefits to keep quality employees.

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An Ohio hospital has been sued for allegedly waiting six months to inform affected patients about a data breach. The class action suit also claims the hospital and a vendor failed to implement cybersecurity protections or adequately train staff on the risks of a breach.

• The breach was allegedly discovered in May, but was not reported until mid-November, and has potentially affected several other health systems’ patient data. The lawsuit alleges that approximately 9M individuals were impacted by the breach.
• See a list of all 2023 healthcare breaches here.

Healthcare Tech and AI

Virtual reality (VR) is experiencing a bit of a renaissance, but old challenges for complete adoption of the technology still persist.

• VR is particularly helpful in mental healthcare treatment and staff training, as well as helping providers and patients alike visualize surgeries before they happen. It can also be used as a “break” to address provider burnout.

Amazon launched HealthScribe, a new generative AI-based clinical documentation service to streamline automatic notetaking for physicians.

• HealthScribe allows providers to create transcripts of patient visits and create summaries that can be entered into an EHR.
• Microsoft, Google, and hospital giant HCA have all introduced services similar to HealthScribe.
• ? Politico summarized AI’s use in healthcare billing and administration in a recent article.

This update is solely for informational purposes and should not be relied upon as legal advice.