On January 1, 2021, every hospital in the United States (with very few exceptions) will be required to post clear, accessible pricing information online about the items and services they provide. These “standard charges” must be provided in two ways: first, as a comprehensive list of all items and services offered by the hospital in a machine readable format; and second, as a display of “shoppable services” in a consumer friendly format. According to CMS, the stated goal of the new rule is to empower patients “with the necessary information to make informed health care decisions.”
With the first requirement, the list must include gross charges, discounted cash prices, payor-specific negotiated charges, and de-identified minimum and maximum negotiated charges. The items and services covered are basically anything for which the hospital has established a standard charge, regardless of location or whether the item or service is provided on an inpatient or outpatient basis. These include, but are not limited to, supplies, surgical implants, procedures, room and board, and professional charges.
The COVID-19 pandemic has presented hospitals and health care facilities with challenges that go beyond providing comprehensive care to patients suffering from the virus. One of the most common challenges is how to handle patient visitors. Denying or limiting visitors could be seen as a violation of patient rights, and denying access to a visit by clergy could rise to the level of religious discrimination. After receiving a number of complaints in this regard, the HHS Office of Civil Rights (OCR) recently provided some technical assistance to two hospitals that faced this issue.
In the first case, a COVID-positive patient in a Maryland hospital was separated from her newborn son. Shaken by the separation, the patient requested that a priest be permitted to visit the baby, so he could baptize the child. But the hospital had instituted a ban on all hospital visitation in response to the pandemic, so the request was denied.
The debate over the pro’s and con’s of physician-owned hospitals has been raging for decades. Physician-owners say their hospitals are more patient-focused, provide higher quality care, obtain better outcomes and therefore receive higher patient satisfaction scores. They also point out their convenience and efficiency.
Opponents argue that physician-ownership leads to overutilization and cherry-picking of only the best patients. The less-desirable patients (both clinically and financially) are then left to be taken care of by the community hospitals. For those reasons, both the American Hospital Association and the Federation of American Hospitals remain strongly opposed to physician-owned hospitals.
Federally, the Stark Law includes an exception which allows a physician to refer patients to a hospital in which the physician has an ownership interest, so long as the ownership interest is in the entire hospital, and not just a subdivision of the hospital. However, in 2010, the federal government weighed in again on the issue, and passed the Affordable Care Act (ACA), which includes provisions which (i) restrict physician referrals to hospitals in which they hold an ownership interest; (ii) restrict any increases in physician-ownership of a hospital; and (iii) restrict expansion of physician-owned hospital facilities. CMS has granted exceptions to these restrictions, but those have been limited to rural hospitals and high Medicaid hospitals, and attempts to amend the law have failed.
The concept of gainsharing in the health care industry has been around for decades. Under a typical gainsharing program, a hospital and participating physicians will develop a cost-savings plan in relation to a specific procedure or service line. As the savings are realized, the hospital will then share a portion of the measurable savings with those physicians. The goal of gainsharing has always been to align physician and hospital interests, in order to improve the quality and efficiency of clinical care.
Gainsharing has not always been viewed favorably by the government. In fact, in a 1999 Special Advisory Bulletin, the Office of Inspector General (OIG) took the position that gainsharing arrangements violated the law, and that the payments could even constitute kickbacks to the participating physicians. Since then, the government has not backed off its position that gainsharing programs might violate the law. However, the OIG has also determined that it would not seek sanctions in a growing number of gainsharing arrangements.
Not too long ago, when something would go wrong in a hospital, a patient’s medical record might note the facts of what had happened (“Mrs. Jones was found on the floor of her hospital room with a swollen wrist. An x-ray revealed a wrist fracture.”), while the hospital’s incident report would analyze why it happened in order to prevent further harm (“Orderly Green forgot to raise the guardrails on Mrs. Jones’ bed. Mrs. Jones fell out of her bed as a result of the displaced guardrail. Let’s put in place a policy that all guardrails must be raised if an orderly steps more than three feet from a patient’s bed.”). Should Mrs. Jones decide to sue the hospital, she and her attorney would have access to the medical record, but not necessarily the incident report.
Incident reports like the one mentioned above have long been meant as a learning tool for facilities to analyze unfortunate occurrences on their premises and learn from their mistakes to prevent future harm. However, these reports often contain admissions of fault, or near admissions of fault. So how can a hospital balance its need to improve on past practices without opening itself to a mountain of liability? Florida’s state laws seemingly contrast with Federal laws.
Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.