Category Archives: American Hospital Association (AHA)

Predicting COVID-19’s Long-Term Impact on the Home Health Care Market

Posted on by • Posted in American Hospital Association (AHA), Center for Medicare and Medicaid Services (CMS), Coronavirus, Economic Crisis, Economic Stimulus, Employee Benefits, Employee Furlough, Employee Hiring Freeze, Employee Layoffs, Employee Pay Cuts, Employer-Based Health Insurance, Financially Distressed, Health Insurance Coverage Adequacy, Home Care, Home Health, Job, Job Market, Job Search, Job Security, Market Consolidation, Medicare, Mergers & Acquisitions, Nursing Home, Out of Pocket Expenses, Palliative Care, Patient-Driven Groupings Model (PDGM), Unemployment, Unemployment Insurance • Leave a comment

Predicting COVID-19’s Long-Term Impact on the Home Health Care Market

Predicting COVID-19's Long-Term Impact on the Home Health Care ...

The Patient-Driven Groupings Model (PDGM) and its unintended ripple effects were supposed to be the dominant story this year for the nation’s 12,000 or so Medicare-certified home health care providers. But the coronavirus has rewritten the script for 2020, throwing most of the industry’s previous projections out the window.

While PDGM — implemented on Jan. 1 — will still shape home health care’s immediate future, several other long-term trends have emerged as a result of the coronavirus and its impact on the U.S. health care system.

These trends include unexpected consolidation drivers and the sudden embrace of telehealth technology, the latter of which is a development that will affect home health providers in ways both profoundly positive and negative. Unforeseen, long-term trends will also likely include drastic overhauls to the Medicare Home Health Benefit, a revival of SNF-to-home diversion and more.

Now that providers have had roughly three full months to adapt to the coronavirus and transition out of crisis mode, Home Health Care News is looking ahead to what the industry can expect for the rest of 2020 and beyond.

‘Historic’ consolidation will still happen, with some unexpected drivers

Although the precise extent was often up for debate, most industry insiders predicted some level of consolidation in 2020, driven by PDGM, the phasing out of Requests for Anticipated Payment (RAPs) and other factors.

That certainly appeared to be true early on in the year, with Amedisys Inc. (Nasdaq: AMED), LHC Group Inc. (Nasdaq: LHCG) and other home health giants reporting more inbound calls related to acquisition opportunities or takeovers of financially distressed agencies.

In fact, during a fourth-quarter earnings call, LHC Group CEO and Chairman Keith Myers suggested that 2020 would kick off a “historic” consolidation wave that would last several years.

“As a result of this transition in Q4 and the first few months of 2020, we have seen an increase in the number of inbound calls from smaller agencies looking to exit the business,” Myers said on the call. “Some of these opportunities could be good acquisition candidates, and others we can naturally roll into our organic growth through market-share gains.”

Most of those calls stopped with the coronavirus, however.

Although the vast majority of home health agencies have experienced a decline in overall revenues during the current public health emergency, many have been able to compensate for losses thanks to the federal government’s multi-faceted response.

For some, that has meant taking advantage of the approximately $1.7 billion the U.S. Centers for Medicare & Medicaid Services (CMS) has distributed through its advanced and accelerated payment programs. For others, it has meant accepting the somewhat murky financial relief sent their way under the Provider Relief Fund.

In addition to those two possible sources of financial assistance, all Medicare-certified home health agencies have benefitted from Congress’s move to suspend the 2% Medicare sequestration until Dec. 31.

Eventually, those coronavirus lifelines and others will be pulled back, kickstarting M&A activity once again.

“We believe that a lot of the support has stopped or postponed the shakeout that’s occurring in home health — or that we anticipated would be occurring around this time,” Amedisys CEO and President Paul Kusserow said in March. “We don’t believe it’s over, though.”

Not only will consolidation happen, but some of it will be fueled by unexpected players.

With the suspension of elective surgeries and procedures, hospitals and health systems have lost billions of dollars. Rick Pollack, president and CEO of the American Hospital Association (AHA), estimated that hospitals are losing as much as $50 billion a month during the coronavirus.

“I think it’s fair to say that hospitals are facing perhaps the greatest challenge that they have ever faced in their history,” Pollack, whose organization represents the interests of nearly 5,000 hospitals, told NPR.

To cut costs, some hospitals may look to get rid of their in-house home health divisions. It’s a trend that may already be happening, too.

The Home Health Benefit will look drastically different

With a mix of temporary and permanent regulatory changes, including a redefinition of the term “homebound,” the Medicare Home Health Benefit already looks very different now than it did three months ago. But the benefit will likely go through further retooling in the not-too-distant future.

Broadly, the Medicare Part A Trust Fund finances key services for beneficiaries.

While vital to the national health care infrastructure, the fund is going broke — and fast. In the most recent CMS Office of the Actuary report released in April, the Trust Fund was projected to be entirely depleted by 2026.

The COVID-19 virus has only accelerated the drain on the fund, with some predicting it to run out of money two years earlier than anticipated. A group of health care economics experts from Harvard and MIT wrote about the very topic on a joint Health Affairs op-ed published Wednesday.

“COVID-19 is causing the Medicare Part A program and the Hospital Insurance (HI) Trust Fund to contend with large reductions in revenues due to increased unemployment, reductions in salaries, shifts to part-time employment from full time and a reduction in labor force participation,” the group wrote. “In addition to revenue declines, there was a 20% increase in payments to hospitals for COVID-related care and elimination of cost sharing associated with treatment of COVID.”

Besides those and other cost pressures, Medicare is simultaneously expanding by about 10,000 new people every day. The worst-case scenario: the Medicare Part A Trust Fund goes broke closer to 2024.

There are numerous policy actions that can be taken to reduce the financial strain on the trust fund. In their op-ed, for example, the team of Harvard and MIT researchers suggested shifting all of home health care under Part B.

In 2018, Medicare spent about $17.9 billion on home health benefits, with roughly 66% of that falling under Part B, which typically includes community-based care that isn’t linked to hospital or nursing home discharge. Consolidating all of home health care into Part B would move billions of dollars away from Part A, in turn expanding the Trust Fund’s lifecycle.

“Such a policy change would move nearly $6 billion in spending away from the Part A HI Trust Fund but would put upward pressure on the Part B premium,” the researchers noted.

Of course, all post-acute care services may still undergo a transformation into a unified payment model one day. However, the coronavirus has devastated skilled nursing facility (SNF) operators, who were already dealing with the Patient-Driven Payment Model (PDPM), a payment overhaul of their own.

Regulators may shy away from introducing further disruption until SNFs have a chance to recover, a process likely to take years — if not decades.

Previously, the Trump administration had estimated that a unified payment system based on patients’ clinical needs rather than site of care would save a projected $101.5 billion from 2021 to 2030.

Telehealth will be a double-edged sword

The move toward telehealth was a long-term trend that home health providers were cognizant of before COVID-19, even if some clinicians were personally skeptical of virtual visits. But because the virus has demanded social distancing, telehealth has forced its way into health care in a manner that would have been almost unimaginable in 2019.

In late April, during a White House Coronavirus Task Force briefing, President Donald Trump indicated that the number of patients using telehealth had increased from about 11,000 per week to more than 650,000 people per week.

Meanwhile, MedStar Health went from delivering just 10 telehealth visits per week to nearly 4,000 per day.

Backed by policymakers, technology companies and consumers, telehealth is likely here to stay.

“I think the genie’s out of the bottle on this one,” CMS Administrator Seema Verma said in April. “I think it’s fair to say that the advent of telehealth has been just completely accelerated, that it’s taken this crisis to push us to a new frontier, but there’s absolutely no going back.”

The telehealth boom could mean improved patient outcomes and new lines of business for home health providers. But it could also mean more competition moving forward.

For telehealth to be a true game-changer for home health providers, Congress and CMS would need to pave the way for direct reimbursement. Currently, a home health provider cannot get paid for delivering virtual visits in fee-for-service (FFS) Medicare.

Sen. Susan Collins (R-Maine) has floated the idea of introducing legislation that would allow for direct telehealth reimbursement in the home health space, but, so far, no concrete steps have been taken — at least in public. With a hyper-polarized Congress and a long list of other national priorities taking up the spotlight, it’s impossible to guess whether home health telehealth reimbursement will actually happen.

While home health providers can’t directly bill for in-home telehealth visits, hospitals and certain health care practitioners can. That regulatory imbalance could lead to providers being used less frequently as “the eyes and ears in the home,” some believe.

A new SNF-to-home diversion wave will emerge

Over the past two decades, many home health providers have been able to expand their patient census by poaching patients from SNFs. Often referred to as SNF-to-home diversion, the approach didn’t just benefit home health providers, though. It helped cut national health care spending by shifting care into lower-cost settings.

At first, the stream of SNF residents being shifted into home health care was like water being shot from a firehose: In 2009, there were 1,808 SNF days per 1,000 FFS Medicare beneficiaries, a March 2018 analysis from consulting firm Avalere Health found. By 2016, that number plummeted to 1,539 days per 1,000 beneficiaries — a 15% drop.

In recent years, that steady stream has turned into a slow trickle, with more patients being sent to home health care right off the bat. In the first quarter of 2019, 23.3% of in-patient hospital discharges were coded for home health care, while 21.1% were coded for SNFs, according to data from analytics and metrics firm Trella Health.

Genesis HealthCare (NYSE: KEN) CEO George Hager suggested the initial SNF-to-home diversion wave was over in March 2019. Kennett Square, Pennsylvania-based Genesis is a holding company with subsidiaries that operate hundreds of skilled nursing centers across the country.

“To anyone [who] would want [to] or has toured a skilled nursing asset, I would challenge you to look at the patients in our building and find patients that could be cared for in a home-based or community-based setting,” Hager said during a presentation at the Barclays Global Healthcare Conference. “The acuity levels of an average patient in a skilled nursing center have increased dramatically.”

Yet that was all before the coronavirus.

Over the last three months, more than 40,600 long-term care residents and workers have died as a result of COVID-19, according to an analysis of state data gathered by USA Today. That’s about 40% of the U.S.’s overall death toll.

CMS statistics place that number closer to 26,000.

In light of those figures and infection-control issues in congregate settings, home health providers will see a new wave of SNF-to-home diversion as robust as the first. As the new diversion wave happens, providers will need to be prepared to care for patients with higher acuity levels and more co-morbidities.

“[That’s going to change] the psyche of the way people are going to view SNFs and long-term care facilities for the rest of our generation,” Bruce Greenstein, LHC Group’s chief strategy and innovation officer, said during a June presentation at the Jefferies Virtual Healthcare Conference. “You would never want to put your parent in a facility if you don’t have to. You want options now.”

One stat to back up this idea: Over 50% of family members are now more likely to choose in-home care for their loved ones than they were prior to the coronavirus, according to a survey from health care research and consulting firm Transcend Strategy Group.

Separate from SNF-to-home diversion, hospital-to-home models will also likely continue to gain momentum after the coronavirus.

There will be a land grab for palliative care

Over the past two years, home health providers have aggressively looked to expand into hospice care, partly due to the space’s relatively stable reimbursement landscape. Amedisys — now one of the largest hospice providers in the U.S. — is the prime example of that.

During the COVID-19 crisis, palliative care has gained greater awareness. Generally, palliative care is specialized care for people living with advanced, serious illnesses.

“Right now, we are seeing from our hospital partners and our community colleagues the importance of palliative care, including advanced care as well as appropriate pain and symptom management,” Capital Caring Chief Medical Officer Dr. Matthew Kestenbaum previously told HHCN. “The number of palliative care consults we’re being asked to perform in the hospitals and in the community has actually increased. The importance of palliative care is absolutely being shown during this pandemic.”

As community-based palliative care programs continue to prove their mettle amid the coronavirus, home health providers will increasingly consider expanding into the market to further diversify their services.

Currently, just 10% of community-based palliative care programs are operated by home health agencies.

Demand will reach an all-time high

The home health industry may ultimately shrink in terms of raw number of agencies, but the overall size of the market is very likely to expand at a faster-than-anticipated pace.

In years to come, home health providers will still ride the macro-level tailwinds of an aging U.S. population with a proven preference to age in place — that hasn’t changed. But because of SNF-to-home diversion and calls to decentralize the health care system with home- and community-based care, providers will see an increase in referrals from a variety of sources.

In turn, home health agencies will need to ramp up their recruitment and retention strategies.

There’s already early evidence of this happening.

Last week, in St. Louis, Missouri, four home-based care agencies announced that they were hiring a combined 1,000 new employees to meet the surge in demand, according to the St. Louis Dispatch.

Meanwhile, Brookdale Senior Living Inc. (NYSE: BKD) similarly announced plans to hire 4,500 health care workers, with 10% of those hires coming from the senior living operator’s health care services segment.

Bayada Home Health Care likewise announced plans to ramp up hiring.

“We are absolutely hiring more people now than ever,” Bayada CEO David Baiada previously told HHCN. “The need for services — both because of societal and demographic evolution, but also because of what we anticipate as a rebound and an increase in the demand for home- and community-based care delivery as a result of the pandemic — is requiring us to continue to accelerate our recruitment efforts.”

The bottom line: The coronavirus may have presented immediate obstacles for home health providers, but the long-term outlook is brighter than ever.

 

 

 

 

New IRS rules target nonprofit hospital exec pay

Posted on by • Posted in American Hospital Association (AHA), Deferred Compensation Plans, Deferred Retirement Bonus, Executive Compensation, Health System, Hospital, Hospital Industry, Internal Revenue Service (IRS), Tax Burden, Tax Exempt Status, Tax-Exempt Status • Leave a comment

https://www.beckershospitalreview.com/compensation-issues/new-irs-rules-target-nonprofit-hospital-exec-pay.html?utm_medium=email

Those distinctive brown signs outside federal buildings in D.C. ...

The Internal Revenue Service has issued guidance that implements a change in the 2017 tax overhaul that imposed a 21 percent excise tax on compensation paid to executives at some nonprofit organizations, according to Bloomberg Tax.

Under the 2017 law, there’s a tax on a nonprofit organization’s five highest-paid employees earning at least $1 million. The tax, paid by the organization, has been in effect since 2018, but the new guidance provides details on how to calculate employee wages and other compensation to determine if the tax applies, according to the report.

Under the proposed rule, any deferred compensation or retirement bonus not vested before the first taxable year beginning after Dec. 31, 2017, is subject to the tax, according to the American Hospital Association. 

The AHA urged Congress to provide an exception for existing contracts or nonqualified deferred compensation plans for tax-exempt healthcare organizations. 

Access the full Bloomberg Tax article here.

 

 

 

 

Healthcare groups call racism a ‘public health’ concern in wake of tensions over police brutality

Posted on by • Posted in 2020 Election Issues, Access, Access & Quality of Healthcare, American Hospital Association (AHA), Association of American Medical Colleges (AAMC), Change, Change Agent, Discrimination, Health Equity, Health Inequity, Health System, Hospital, Hospital Industry, Leadership, Police Brutality, Police Violence, Public Debate, Public Discourse, Public Health, Public Safety, Social Determinants of Health, Society for Healthcare Epidemiology of America (SHEA) • Leave a comment

https://www.fiercehealthcare.com/practices/healthcare-groups-denounce-systemic-racism-wake-tensions-over-police-brutality?mkt_tok=eyJpIjoiWmpobE5XVmlaRGd6T0dFdyIsInQiOiJsQmxnbVNxNVlISVNkczJIZkJXb3ZFZG9tVlpMblZ1XC9oVVB6SlRINzNhOXE4MWQzNk1cL3JTaDlcL2l0MGdhSnk0NUtqY1RzdThCN1wvZ1ZoVUxqOHJwZFJcL1wvK3FtS0o5NFwvSHA0WHhTUnhVNnY3bk5RNmhRQTdxYzYwclhYN3JTRW8ifQ%3D%3D&mrkid=959610

After days of protests across the world against police brutality toward minorities sparked by the killing of George Floyd in Minneapolis, healthcare groups are speaking out against the impact of “systemic racism” on public health.

“These ongoing protests give voice to deep-seated frustration and hurt and the very real need for systemic change. The killings of George Floyd last week, and Ahmaud Arbery and Breonna Taylor earlier this year, among others, are tragic reminders to all Americans of the inequities in our nation,” Rick Pollack, president and CEO of the American Hospital Association (AHA), said in a statement.

“As places of healing, hospitals have an important role to play in the wellbeing of their communities. As we’ve seen in the pandemic, communities of color have been disproportionately affected, both in infection rates and economic impact,” Pollack said. “The AHA’s vision is of a society of healthy communities, where all individuals reach their highest potential for health … to achieve that vision, we must address racial, ethnic and cultural inequities, including those in health care, that are everyday realities for far too many individuals. While progress has been made, we have so much more work to do.”

The Society for Healthcare Epidemiology of America (SHEA) also decried the public health inequality highlighted by the dual crises.

“The violent interactions between law enforcement officers and the public, particularly people of color, combined with the disproportionate impact of COVID-19 on these same communities, puts in perspective the overall public health consequences of these actions and overall health inequity in the U.S.,” SHEA said in a statement. Association of American Medical Colleges (AAMC) executives called for health organizations to do more to address inequities. 

“Over the past three months, the coronavirus pandemic has laid bare the racial health inequities harming our black communities, exposing the structures, systems, and policies that create social and economic conditions that lead to health disparities, poor health outcomes, and lower life expectancy,” said David Skorton, M.D., AAMC president and CEO, and David Acosta, M.D., AAMC chief diversity and inclusion officer, in a statement.

“Now, the brutal and shocking deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery have shaken our nation to its core and once again tragically demonstrated the everyday danger of being black in America,” they said. “Police brutality is a striking demonstration of the legacy racism has had in our society over decades.”

They called on health system leaders, faculty researchers and other healthcare staff to take a stronger role in speaking out against forms of racism, discrimination and bias. They also called for health leaders to educate themselves, partner with local agencies to dismantle structural racism and employ anti-racist training.

 

 

 

After criticism, HHS directs $25B in CARES funding to Medicaid providers, safety net hospitals

Posted on by • Posted in American Hospital Association (AHA), Coronavirus, Crisis, Crisis Management, Dept of Health and Human Services (HHS), Economic Crisis, Economic Stimulus, Financially Distressed, Hospital, Medicaid, Medicaid Childrens Health Insurance Program (CHIP), Rural Hospital, Safety Net Hospitals, Safety-Net Providers, The CARES Act • Leave a comment

https://www.healthcaredive.com/news/after-criticism-hhs-directs-25b-in-cares-funding-to-medicaid-providers-s/579496/

Dive Brief:

  • HHS announced Tuesday it will deliver $25 billion to providers and hospitals that serve the nation’s most vulnerable patients, or those with Medicaid and Children’s Health Insurance Program coverage. Of that, $15 billion will go to providers that primarily serve Medicaid and CHIP patients while the other $10 billion is reserved for safety net hospitals that usually operate on razor-thin margins. A total of 758 safety net hospitals will receive direct deposits, and the administration noted that many of these facilities are operating in the red with an average profit margin of -7%.
  • Not all Medicaid providers received Coronavirus Aid, Relief, and Economic Security funding from the initial general distribution. This targeted allocation is designed to make up for that by distributing money to the remaining 38% of Medicaid and CHIP providers who were left out of the first tranche.
  • These Medicaid providers will receive at least 2% of reported gross patient revenue, but could receive more depending on how many patients they serve. HHS will make a final determination once providers start submitting data to the relief portal.

Dive Insight:

The industry has been clamoring for HHS to target funding to Medicaid providers amid the COVID-19 pandemic and the downturn in business, noting these organizations are already on fragile ground.

Last week the American Hospital Association pleaded for the administration to release $50 billion more for all hospitals, with $10 billion reserved for providers with a heavy caseload of Medicaid patients.

HHS answered the hospital lobby’s call — in part. HHS will distribute funds to safety net providers — more than AHA asked for — but disclosed no plans Tuesday to broaden that funding to all hospitals. America’s Essential Hospitals, which represents safety net providers, had also called for the quick release of targeted funding.

“Our goal for all these distributions has been to get the money to the providers who need it most as soon as possible,” Eric Hargan, HHS deputy secretary, said Tuesday during a call with reporters.

However, some have been critical of how the administration decided to allocate the first few waves of funding.

Congress has earmarked a total of $175 billion in funding for providers through two pieces of legislation, including the CARES Act.

To get the money out the door quickly, the first tranche was sent to providers based on the Medicare fee-for-service business, and later on the net patient service revenue.

These formulas put certain providers at an advantage, which tend to be for-profit hospitals with higher-margins, or those who were already well off heading into the pandemic, according to a recent Kaiser Family Foundation analysis.

This targeted funding was not swift, one reason for the delay was the challenge in getting a list of Medicaid providers from the states to validate and authenticate those who came to the portal to apply for funds, according to a senior HHS official.​

Still, providers that have already received funds have noted that it comes with its own set of headaches. Some have decided to return the funds as navigating the legal and compliance issues may not be worth the hassle.

Though, that’s likely not the case for these safety net hospitals and providers.

 

 

 

 

Hospitals push for release of $50B more in COVID-19 funds

Posted on by • Posted in 2020 Election Issues, America's Essential Hospitals, American Hospital Association (AHA), Coronavirus, Crisis, Crisis Management, Economic Crisis, Economic Stimulus, Health Policy, Health System, Hospital, Hospital Industry, Medicaid, Vulnerable Populations • Leave a comment

https://www.healthcaredive.com/news/hospitals-push-for-release-of-50b-more-in-covid-19-funds/579072/

COVID-19 Stimulus Bill: What It Means for States

Dive Brief:

  • The American Hospital Association is urging HHS to distribute at least $50 billion more in funding from the $175 billion allocated by Congress to hospitals as providers continue to wrestle with the challenges spurred by the outbreak of the novel coronavirus. 
  • More funds are “urgently needed” for the more than 5,000 hospitals and health systems AHA represents, the group wrote in a letter to HHS Secretary Alex Azar on Tuesday.
  • While AHA is calling for more money for all hospitals, it also wants a special focus paid to hospitals in hot spot areas and those serving a higher number of Medicaid and uninsured patients. 

Dive Insight:

AHA is requesting $10 billion for hot spot areas, $10 billion for hospitals with a larger share of Medicaid and uninsured patients and another $30 billion for all hospitals, including inpatient rehabilitation centers and inpatient psychiatric facilities.

Making substantial funds of money available will help facilities weather the pandemic and will “actually ensure they are able to keep their doors open,” AHA CEO Richard Pollack wrote. The second quarter is expected be the hardest hit to hospital operations.​

On Tuesday, the HHS Office of the Assistant Secretary for Preparedness and Response said it was making available another $225 million for health systems. That’s a drop in the bucket compared to the total federal funds that have already gone out the door. 

So far, the federal government has earmarked a total of $175 billion to disperse to hospitals and providers across the country. Only a portion of those funds have gone out. Initially, HHS sent out $30 billion directed to all eligible hospitals, based on Medicare fee-for-service. The criteria for funding faced criticism over seemingly giving an advantage to certain hospitals over others, such as those with many Medicaid patients.

Other more targeted tranches have followed, including $20 billion based on net patient service revenue. Disbursements of $10 and $12 billion were reserved for rural providers and hot spots, respectively.

AHA’s latest requests seems to acknowledge the concerns others have raised about providers with high Medicaid numbers.

Late last month, America’s Essential Hospitals, which represent safety net hospitals, said the administration should quickly move to dstribute more funding to facilities serving large shares of uninsured and Medicaid members.

“They continue to struggle with the heavy financial costs of this public health emergency and need relief now,” Bruce Siegel, CEO of AEH, said in a statement.

HHS developed funding formulas that rely heavily on a Medicare and net patient service revenue, so facilities that rely more on Medicaid as opposed to private insurers and Medicare, like pediatric hospitals, are at a disadvantage when it comes to receiving funds.

As such, AHA is calling for an additional $20 billion, divided evenly between hot spot hospitals and those with a large share of Medicaid patients.

“These hospitals care for the nation’s most vulnerable patients, who, largely as a result of underlying health conditions, have suffered disproportionately from the pandemic. They have been hospitalized at greater rates, and required more care and resources once hospitalized,” AHA said of hospitals with large shares of Medicaid patients.

 

 

 

Providers show support amid unrest: #WhiteCoatsForBlackLives

Posted on by • Posted in 2020 Election Issues, Access, Access & Quality of Healthcare, American Hospital Association (AHA), American Medical Association (AMA), Core Values, Coronavirus, Governance, Gun Violence, Health Equity, Health Inequity, Health Policy, Police Violence, Protest, Public Debate, Public Discourse, Public Good, Public Health, Public Inaction, Public Safety, Social Determinants of Health, Trust, World Health Organization (WHO) • Leave a comment

https://www.healthcaredive.com/news/providers-show-support-amid-unrest-whitecoatsforblacklives/579020/

Dive Brief:

  • The American Hospital Association on Monday condemned what they called the “senseless killing of an unarmed black man in Minneapolis,” referring to George Floyd, who died more than a week ago after a police officer held his knee on Floyd’s neck for more than eight minutes. AHA said the group’s vision is a “society of healthy communities, where ALL individuals reach their highest potential for health.”
  • Medical societies, providers and other healthcare organizations weighed in to support peaceful protests, especially as the COVID-19 pandemic shines a light on racial inequities in access to healthcare and job security in America.
  • Health officials also expressed worry that the protest gatherings could further spread of the novel coronavirus. Minnesota Gov. Tim Walz said hospitals in the state could be overwhelmed. And some COVID-19 testing sites have been shut down for safety reasons, further exacerbating concerns.

Dive Insight:

Since protests and occasionally violent police confrontations in recent days were sparked by Floyd’s death, providers have taken to social media with notes of support and pictures of themselves taking a knee in their scrubs under the hashtag #WhiteCoatsForBlackLives.

The American Medical Association responded to ongoing unrest Friday, saying the harm of police violence is “elevated amidst the remarkable stress people are facing amidst the COVID-19 pandemic.”

Board Chair Jesse Ehrenfeld and Patrice Harris, AMA’s first African American woman to be president, continued: “This violence not only contributes to the distrust of law enforcement by marginalized communities but distrust in the larger structure of government including for our critically important public health infrastructure. The disparate racial impact of police violence against Black and Brown people and their communities is insidiously viral-like in its frequency, and also deeply demoralizing, irrespective of race/ethnicity, age, LGBTQ or gender.”

Other organizations weighed in, including CommonSpirit Health, the American Psychiatric Association, the American College of Physicians and several medical colleges.

The nascent research and data from the pandemic in the U.S. have shown people of color are more likely to die from COVID-19 than white people. The reasons behind that are myriad and complex, but many can be traced back to systemic inequality in social services and the healthcare system.

Payers, providers and other healthcare organizations have attempted to address these issues through programs targeting social determinants of health like stable housing, food security and access to transportation.

But despite these efforts over several years to recognize and document the disparities, they have persisted and in some cases widened, Samantha Artiga, director of the Disparities Policy Project at the Kaiser Family Foundation, noted in a blog post Monday.

“Health disparities, including disparities related to COVID-19, are symptoms of broader underlying social and economic inequities that reflect structural and systemic barriers and biases across sectors,” she wrote.

Providers have waded into political issues affecting them before, including gun violence. Several organizations also objected to the Trump administration’s decision to cut ties with the World Health Organization in the midst of the pandemic.

The American Public Health Association in late 2018 called law enforcement violence a public health issue.

 

 

 

 

Administration Wants To Cut Back A Billion-Dollar Healthcare Program. Hospitals Say Now Is A Really Bad Time.

Posted on by • Posted in 2020 Election Issues, American Hospital Association (AHA), Center for Medicare and Medicaid Services (CMS), Dept of Health and Human Services (HHS), District Court of Appeals, Financially Distressed, Government Accountability Office, Health Policy, Health System, Hospital, Hospital Industry, Lawsuit, Medicare 340B Drug Discount Program, Pandemic, Pharmaceutical Industry, Safety Net Hospitals, Safety-Net Providers, Vulnerable Populations • Leave a comment

https://www.buzzfeednews.com/article/zoetillman/trump-medicare-cuts-hospitals-coronavirus-lawsuits?mkt_tok=eyJpIjoiTVRRd00yUmpZbUV3TVRVeiIsInQiOiJTZ0piR2wyRnBZOU5jR3N2TTNzd3Vrb040dHA5K0hVT0lQRm82YnFkVlNVVko4QlVRU0Z0SVVTQWxZUXJmWTZFTVBqaVh0N1JRWHFJTmg2dkNDb0hQTjBYYmxyUnphMEVGSmhwN0NJWUE3V0FFa2FIenJRZTJjWmliSWZKRVwvcU8ifQ%253D%253D

340B Drug Pricing Program: What Is it, How Does It Work?

The Trump administration has been fighting in court with public and nonprofit hospitals since 2017 over a plan to slash the reimbursement rates for drugs prescribed to Medicare patients.

In 2018, Park Ridge Health, a not-for-profit healthcare network in western North Carolina that serves a large population of lower-income patients, delayed plans to buy a new CT scanner for stroke patients.

The Trump administration had drastically scaled back a federal drug reimbursement program that benefitted public and not-for-profit hospitals. Park Ridge, now called AdventHealth Hendersonville, stood to lose $3.3 million per year, the hospital’s chief financial officer wrote in a court affidavit, and it wasn’t just the CT scanner on the line — that money went toward a variety of services for elderly and poor patients, including new cancer treatment facilities, women’s healthcare, and partnerships with nonprofits on issues like prescription drug abuse.

Park Ridge and other hospitals have been battling with the administration in court for three years over a plan to slash by nearly 30% the reimbursement rate that hospitals get for certain drugs prescribed to Medicare patients. The hospitals won the first round. The US Court of Appeals for the DC Circuit heard arguments in November and has yet to rule, and for now the cut is still in effect. In the meantime, the Centers for Medicare & Medicaid Services (CMS) is exploring another way to make the cut if they lose the case, over the objection of hospitals.

The litigation predates the coronavirus pandemic, but the stakes are higher as hospitals nationwide lose tens of billions of dollars weekly while nonessential services and elective surgeries are on hold because of the ongoing crisis.

“If [hospitals] lost that money now, it would make an already dire financial situation worse,” Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law, wrote in an email to BuzzFeed News.

Hospitals that serve a high proportion of lower-income patients can buy outpatient drugs at a discounted price through what’s known as the 340B program. Until 2017, these hospitals were reimbursed by the federal government for drugs prescribed to Medicare patients at a higher rate than the discounted price the hospitals paid.

The CMS announced in 2017 that it was slashing the reimbursement rate from 6% above the average price of the drugs to 22.5% below the average cost. The agency said the program gave hospitals an incentive to overprescribe drugs and cost patients more money, and shouldn’t provide a windfall to subsidize other services.

Hospitals that opposed the change argued that they had put money earned through the program — which can run in the millions of dollars for a hospital each year — into services for poor and underserved communities, as Congress intended.

The CMS estimated that cutting the reimbursement rate for the drugs would reduce the amount of money paid to hospitals by $1.6 billion in 2018 alone. Scaling back that funding would actually increase the rates paid by the government for other services for Medicare patients — the payment system has to be “budget neutral” — but Park Ridge and other hospitals that took the administration to court said they still expected net losses of millions of dollars.

Many hospitals that participate in the 340B program “are in the red to begin with,” said Maureen Testoni, president and CEO of 340B Health, a membership group for hospitals and health systems that participate.

“So on top of that, you add this pandemic and all the financial turmoil that this has caused,” Testoni said. The pandemic has highlighted “how critical [hospitals] are … and what an important role they play. And, financially, they’re not in a situation where they can play that role when they have this big financial reduction.”

While waiting for the DC Circuit to rule, the CMS is exploring ways to move forward with the rate cut even if it loses. Last month, the agency launched a survey to collect data from 340B hospitals that the CMS says would address the issues that led the lower court judge to rule against the government. Hospitals opposed the survey and asked the agency to at least delay it, saying they’d have to divert resources that are already stretched thin during the pandemic to respond.

“Now is not the time to distract hospitals’ attention from the vital job at hand to complete a CMS survey on drug acquisition costs. By launching the survey with no notice on April 24 and providing less than three weeks to respond, CMS is creating an unnecessary burden on hospitals at the worst possible moment,” Testoni wrote in a May 4 letter to the agency. The agency didn’t respond.

Representatives of hospitals involved in the lawsuits declined interview requests, citing the pending litigation. The American Hospital Association, a lead plaintiff, declined an interview request but sent a statement:

“The COVID-19 pandemic has created the greatest financial crisis in history for America’s hospitals and health systems, with our field losing over $50 billion each month. While it is too soon to have precise data on the full impact of this pandemic, the unlawful Medicare cuts that we are contesting in federal court have added significantly to the financial pressure all hospitals face,” the group said.

A spokesperson for the Department of Health and Human Services did not return a request for comment. In court, the Justice Department has argued that the district court judge lacked authority to review the rate cut at all, and that even if he could, the government had the power to bring the rate in line with what the available data showed hospitals were paying for the drugs.

“[O]vercompensation for some drugs or treatments means reduced payments for other drugs and treatments, and correcting overcompensation permits more equitable distribution of limited funds,” Justice Department lawyers argued in the government’s brief to the DC Circuit. “The result of bringing the Medicare payment amount for 340B drugs into alignment with average acquisition cost was therefore the redistribution of the anticipated $1.6 billion in savings, resulting in a 3.2% increase in the Medicare payment rates for non-drug items and services.”

Congress created the 340B program in 1992. Healthcare providers eligible for the program can buy outpatient drugs at discounted rates from pharmaceutical companies. When hospitals prescribe those drugs to patients covered by Medicare — the federal insurance program for people who are over the age of 65 or have disabilities — they submit claims to the government for reimbursement.

Starting in 2006, Congress gave the CMS two options to set the drug reimbursement rate. It could rely on what hospitals were actually paying to buy drugs if it had “statistically sound survey data” or, if that wasn’t available, the average sales price of the drugs. If the agency used the second, alternative option, Congress set a default rate: the average sales price plus 6%.

In the summer of 2017, the Trump administration announced a plan to change the rate. Under the new rule, the Medicare agency said it would pay the average sales price of drugs minus 22.5%. That rate would come closer to matching the discounted rate hospitals were paying through the 340B program, the agency said.

Hospitals don’t have to track or disclose how they use money saved through the program. Kelly Cleary, who spent three years as the chief legal officer for the CMS, said hospitals had provided examples of how they were using the funds to expand services into underserved areas and provide free or low-cost care.

“The money was going toward a purpose that was consistent with their mission,” said Cleary, who was involved in the CMS’s effort to change the rate and defend it in court. She returned to private practice last month as a partner at the law firm Akin Gump Strauss Hauer & Feld.

The chief financial officer for the Henry Ford Health System, which serves patients in Detroit and Jackson, Michigan, wrote in a court affidavit that even if the cut meant that reimbursement rates increased for other Medicare services, the hospital network still expected to lose around $8.5 million by the end of 2018 — money that had gone toward services for patients with low incomes, such as free and low-cost medications, a free community clinic, and mobile health units.

The margin between what the Henry Ford Health System paid for drugs through the 340B program and what it received back from Medicare helped hospitals in that network provide care for “underserved and indigent populations … that would otherwise be financially unsustainable,” the officer wrote.

In support of the rate cut, the CMS pointed to a 2015 report by the Government Accountability Office that showed hospitals participating in the program had an incentive to prescribe more drugs than hospitals that weren’t in the program, and that meant higher copayments for Medicare patients who were prescribed more drugs or higher-priced drugs. The agency concluded hospitals were receiving too much of a net financial benefit.

“While we recognize the intent of the 340B Program,” the agency wrote in a November 2017 notice in the Federal Register, “we believe it is inappropriate for Medicare to subsidize other activities.”

It’s a position that aligned the government with the pharmaceutical industry, which argued that some hospitals had abused the program. Drugmakers pointed out that even with a cut to the reimbursement rate, the healthcare providers would still get the benefit of discounted drugs. A representative of PhRMA, a membership group for the pharmaceutical industry, declined an interview request, but sent BuzzFeed News a copy of comments the group submitted in support of the cut.

“PhRMA is concerned that the 340B program continues to grow rapidly and without patient benefits, thus increasingly departing from its purpose and statutory boundaries,” the group wrote. “This growth in the 340B program creates market-distorting incentives that affect consumer prices for medicines, shift care to more expensive hospital settings, and accelerate provider market consolidation.”

Hospitals that supported the program, meanwhile, said the proposal punished providers who work with vulnerable patients, and they urged the CMS to focus its efforts instead on bringing down drug costs.

The agency disputed that the plan was punitive and said that “lowering the price of pharmaceuticals is a top priority” but was outside the scope of what it was considering at the time.

Hospitals and hospital associations began suing the administration shortly after the rule became final in November 2017. They argued that the CMS had come up with the new rate using a process that Congress hadn’t approved. The agency admitted that it didn’t have the “statistically sound” survey data on what hospitals were actually paying for the drugs — the first method Congress had laid out — so instead it used an estimate of average purchase costs compiled by the Medicare Payment Advisory Commission, an agency that advises Congress.

The problem with the government’s approach, the hospitals argued, was that Congress had said the CMS could either use survey data on purchase costs or the average sales price of the drugs, but not a hybrid of the two. Congress had given the CMS authority to “adjust” rates, but cutting the reimbursement rate by nearly 30% was more than just an adjustment, the hospitals said.

US District Judge Rudolph Contreras in Washington, DC, sided with the hospitals. In a December 2018 opinion, he wrote that the rate cut’s “magnitude and its wide applicability inexorably lead to the conclusion” that the agency had “fundamentally altered” what Congress had spelled out.

The judge stopped short of blocking the rule and ordering the government to reimburse hospitals for the difference between the previous rate and the CMS’s new, lower rate, however, writing that it was “likely to be highly disruptive.” He noted that the payment system had to stay budget neutral, which meant the money would need to come from another source, a “quagmire that may be impossible to navigate” given how much money the government paid out of Medicare each year. He asked for more briefing on what the agency should do to fix the problem, but that issue was put on hold as the administration took the case to the DC Circuit.

A three-judge DC Circuit panel heard arguments on Nov. 8 and has yet to release a decision. In the meantime, hospitals have continued to file lawsuits as their claims for reimbursement at the previous, higher rate are rejected; earlier this month, a hospital system in Jacksonville, Florida, which is part of the University of Florida, filed a new suit in federal court in Washington. And the CMS is going ahead with its survey over the objections from hospitals.

“The pandemic amplifies the significance of this policy, but the fact remains that there were winners and losers with the policy and it’s always going to be a zero-sum game,” Cleary said. “If the court rules against the agency and the agency is forced to walk back the policy, that stands to negatively impact thousands of hospitals.”

Wiley, of American University, told BuzzFeed News that even before the pandemic, the fight over the 340B program highlighted how hospitals and drugmakers were “actively throwing each other under the bus” in the broader debate about who was to blame for the high cost of prescription drugs and what the federal government should do about it.

“Which stakeholders voters perceive to be the heroes of the pandemic response could affect health reform and reimbursement politics for years to come,” she wrote.

 

 

 

Pandemic response complicated by public health agencies’ inability to receive data from hospitals

Posted on by • Posted in American Hospital Association (AHA), Center for Medicare and Medicaid Services (CMS), Data, Data Governance, Data Management, Electronic Health Record (EHR), Health Policy, Health System, Hospital, Hospital Industry, Information Technology, Interoperability • Leave a comment

https://www.healthcaredive.com/news/pandemic-response-complicated-by-public-health-agencies-inability-to-recei/578663/

Dive Brief:

  • The biggest problem with electronic syndromic surveillance reporting isn’t that hospitals lack the capacity to send data — it’s that public health agencies lack the ability to receive it, according to a new report published in the Journal of the American Medical Informatics Association.
  • More than four in 10 U.S. hospitals say their local, state and federal public health agencies are unable to receive data electronically, reflecting a decade-long investment in health IT infrastructure on the private sector side without a concomitant investment from its federal partners, researchers found.
  • Hospitals in regions forecast to be some of the hardest hit from COVID-19 were more likely to say public health agencies were unable to receive health data electronically, implying areas of highest need were some of the least prepared to mount a coordinated, data-driven response going into the pandemic.

Dive Insight:

Effective pandemic response requires real-time, accurate data sharing between providers and public health agencies, allowing the government to track outbreaks and allocate resources as needed.

A lack of nationwide, interoperable reporting infrastructure has been one of the major criticisms of the Trump administration’s handling of the pandemic, which has infected almost 1.7 million and killed 99,000 people in the U.S. as of Wednesday.

CMS requires hospitals be able to electronically send and receive health information, including lab results and syndromic surveillance data, to and from public health agencies like their state’s department of health. For more than a decade, providers have funneled significant resources into their IT infrastructure due to a slurry of federal incentive programs, though EHR implementation remains piecemeal across the U.S. due to cost and other barriers.

The JAMIA study, one of the first looking at the state of health data reporting, analyzed 2018 American Hospital Association data to identify hospital-reported barriers to surveillance data reporting, and Harvard Global Health Institute data on the coronavirus pandemic’s projected impact on hospital capacity at the hospital referral region (HRR) level. Researchers assumed a 40% population infection rate over 12 months.

The group found 31 high-need HRRs, those in the top quartile of projected beds needed for COVID-19 patients, with more than half of the hospitals in the region saying the relevant public health agency couldn’t electronically receive data.

That suggests areas more likely to be overwhelmed by the pandemic had some of the least interoperable data-sharing capabilities going into it, hamstringing outbreak response.

Researchers found the most common barrier to data-sharing nationwide, reported by 41% of hospitals, was that public health agencies didn’t have the capacity to receive data electronically.

The next most common, reported by 32% of hospitals, was interface-related issues, such as costs or implementation complexity; followed by difficulty extracting data from the EHR (14% of hospitals reporting), different data standards (also 14%), hospitals lacking the capacity to send data (8%) and hospitals being unsure what public health agencies to send the data to (3%).

Researchers also found significant state variance in hospitals saying public health agencies couldn’t receive needed data electronically, running the gamut from 83% of hospitals saying so in Hawaii and Rhode Island to 40% in New Jersey and Virginia to none in Delaware.

Geographic variation is likely due to different funding priorities in different places, as some agencies may only be able to receive specific data elements or interface with a select number of EHRs. This spotty IT implementation results in a patchwork picture of disease progression across the U.S., though the Centers for Disease Control and Prevention is working to automate the COVID-19 reporting process.

The study does have some significant limitations. It’s a relatively one-sided portrayal of the issue, as researchers did not have access to data or survey results from public health agencies. And, since AHA survey results were from two years ago, the EHR landscape could have shifted since 2018.

However, researchers called upon policymakers to build up public health agencies’ IT capabilities, especially as states begin to reopen despite an increasingly likely resurgence of the virus in the fall.

“Policymakers should prioritize investment in public health IT infrastructure along with broader health system information technology for both long-term COVID-19 monitoring as well as future pandemic preparedness,” authors A Jay Holmgren, a doctoral candidate at Harvard Business School; Nate Apathy, a doctoral candidate at Indiana University’s Richard M. Fairbanks School of Public Health; and Julia Adler-Milstein, a professor at University of San Francisco Department of Medicine, wrote.

 

 

 

Hospitals to get $75B in latest round of COVID-19 funding passed by Senate

Posted on by • Posted in American Hospital Association (AHA), Center for Medicare and Medicaid Services (CMS), Coronavirus, Crisis, Crisis Management, Dept of Health and Human Services (HHS), Economic Crisis, Economic Stimulus, Health Policy, Health System, Hospital, Hospital Industry, Pandemic, The CARES Act • Leave a comment

https://www.healthcaredive.com/news/hospitals-to-get-75b-in-latest-round-of-covid-19-funding-passed-by-senate/576466/

Jobs: A Historic Topic When Presidents Address Congress ...

Dive Brief:

  • Hospitals are set to get $75 billion in the next round of emergency funding for the country’s COVID-19 response as the Senate approved legislation Tuesday and the White House expressed support. The House of Representatives could return for a vote as soon as this week.
  • The amount is three-quarters of what various hospital groups had requested as their facilities face a major financial hit from the pandemic. Most have stopped lucrative elective procedures at the same time expenses rise due to increased need for staff and specialty supplies to treat the virus. Still, hospitals commended the legislation, saying it would “help ensure that critical care can continue to be provided by frontline providers throughout the country.”
  • The Paycheck Protection Program and Health Care Enhancement Act allocates another $25 billion for expanding and administering COVID-19 testing for active infection and prior exposure as well as conducting surveillance and contact tracing.

Dive Insight:

Major hospital operators HCA Healthcare, Community Health Systems and Tenet Healthcare have all pulled their 2020 guidance as they adjust for the influx of COVID-19 patients across the country.

In its first quarter report Tuesday, HCA attributed a steep decrease in volumes and 45% drop in profit to the pandemic. “We do believe the impact to the company will be most pronounced during this current response phase, as volume continues to decline throughout April,” HCA CFO Bill Rutherford told investors Tuesday.

Hospitals received $100 billion in the $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act passed last month and the first tranche of that funding has already been deposited in facilities’ bank accounts, based on historic Medicare payments.

The second round will be targeted to reach providers in hot spots and those not included previously, CMS has said. The agency has declined to give further details or an update on timing, however.

The American Hospital Association said in a statement the CARES funds “are already being used by hospitals and health systems to increase capacity and provide care, and in some cases to keep access to care available by keeping the doors open.”

And while the agency touted the funding as “no strings attached,” terms and conditions subsequently put out have given some providers pause.

CMS has made other attempts to help hospitals financially. The CARES Act includes a 20% bump to payments for treating COVID-19 and the agency has sent billions in expedited Medicare payments as hospitals request them.

Hospitals warned Tuesday that HHS should distribute funds quickly. “While we appreciate Congress taking swift action — more still needs to be done to defeat COVID,” the Federation of American Hospitals said in a statement. “It is important that HHS distributes the funding in a timely, well-targeted fashion. And it remains mission-critical to reform the Medicare Accelerated Payment Program so that it does not impede hospitals’ ability to meet patient needs.”

 

 

 

 

Labor Secretary Eugene Scalia faces blowback as he curtails scope of worker relief in unemployment crisis

Posted on by • Posted in 2020 Election Issues, American Hospital Association (AHA), Centers for Disease Control & Prevention (CDC), Coronavirus, Crisis, Crisis Management, Economic Stimulus, Employee Family Leave, Employee Protections, Gig Workers, Nurses, Nurses Union, Occupational Safety and Health Administration (OSHA), Pandemic, Personal Protective Equipment (PPE), Sick Leave, Unemployment, Unemployment Insurance, Worker Rights • Leave a comment

https://www.washingtonpost.com/business/2020/04/10/labor-secretary-eugene-scalia-faces-blowback-he-curtails-scope-worker-relief-unemployment-crisis/?fbclid=IwAR3mYk7W0Jvxu0lJ9vo7FXufkVsy1OVsg-VqmUztG1hi5PJAneL7PzcKDtI

Eugene Scalia, rising in Trump orbit, becomes key force in ...

Labor Department comes under fire over handling of worker protection, unemployment program.

The Labor Department is facing growing criticism over its response to the coronavirus pandemic as the agency plays a central role in ensuring that the tens of millions of workers affected by the crisis get assistance.

The criticism ranges from direct actions that the agency has taken to limit the scope of worker assistance programs to concerns that it has not been aggressive enough about protecting workers from health risks or supporting states scrambling to deliver billions in new aid.

In recent days, Labor Secretary Eugene Scalia, who has expressed concerns about unemployment insurance being too generous, has used his department’s authority over new laws enacted by Congress to limit who qualifies for joblessness assistance and to make it easier for small businesses not to pay family leave benefits. The new rules make it more difficult for gig workers such as Uber and Lyft drivers to get benefits, while making it easier for some companies to avoid paying their workers coronavirus-related sick and family leave.

“The Labor Department chose the narrowest possible definition of who qualifies for pandemic unemployment assistance,” said Andrew Stettner, a senior fellow at the Century Foundation who has spent two decades working on unemployment programs.

At the same time, frustrations have built among career staff at the Labor Department that the agency hasn’t ordered employers to follow safeguards, including the wearing of masks, recommended by the Centers for Disease Control and Prevention to protect workers. Two draft guidance documents written by officials at the Occupational Safety and Health Administration, part of the Labor Department, to strengthen protections for health-care workers have also not been advanced, according to two people with knowledge of the regulations granted anonymity to discuss the internal deliberations.

Scalia, a longtime corporate lawyer who is the son of the late Supreme Court justice Antonin Scalia, has emerged as a critical player in the government’s economic response to the pandemic. Nearly 17 million Americans have applied for unemployment insurance since President Trump declared a national emergency on March 13, and states are struggling to get their systems working to deliver $260 billion in new aid approved by Congress.

Democrats and some Republicans argue that the Labor Department needs to be more aggressive about disbursing money and technical assistance to states to shore up the unemployment insurance system. The department has released only half of $1 billion in administrative support for states that Congress approved almost a month ago.

Sen. Lindsay O. Graham (R-S.C.) said Thursday in an interview that he has talked to Scalia about the need to speed things up.

“You could have massive civil unrest if these systems cannot get checks out the door. We’re talking about 20 percent unemployment, maybe even more,” Graham said. “The application process is a nightmare. The state systems are failing.”

Graham said that Scalia has been responsive, but, “I don’t see any action being taken.”

Labor Department officials said Scalia is moving rapidly to help U.S. workers in an unprecedented time. They pointed to a poster and guidebook that OSHA released with steps companies “can take” to reduce worker risk of coronavirus exposure.

“Under Secretary Scalia’s leadership, in the last two weeks, the department has quickly released new rules and guidance for states, businesses, and individual Americans to help those in need of relief,” said Patrick Pizzella, deputy labor secretary. “The department has already distributed nearly $500 million in additional administrative funding to 39 states.”

Still, Scalia has made clear he is wary of taking an excessively lax approach to disbursing aid, an argument that he used to help win GOP support for recent legislation. Writing on Fox Business Network’s website on Monday, he warned that he does not want unemployed people to become addicted to government aid.

“We want workers to work, not to become dependent on the unemployment system,” Scalia wrote with Small Business Administration chief Jovita Carranza. “Unemployment is not the preferred outcome when government stay-at-home orders force temporary business shutdowns.”

On the day the $2 trillion package passed the Senate, Scalia spoke with Sens. Rob Portman (R-Ohio), Ben Sasse (R-Neb.) and Tim Scott (R-S.C.), who had raised concerns the law’s new unemployment benefits were too large and would deter workers from returning to jobs.

Scalia told conservative senators that once enacted, his agency would ensure the provisions his agency oversees would not hurt U.S. companies, according to three congressional officials aware of the conversations and granted anonymity to discuss the call.

Narrowing rules

Two recent laws passed by Congress expanded paid and sick leave policies as well as the size and scope of unemployment benefits for Americans. But worker advocates argue that as Scalia begins to implement these measures, his department is being much less generous toward workers than toward companies.

New Labor Department guidance says unemployment benefits apply to gig workers only if they are “forced to suspend operations,” which could dramatically limit options for those workers if their apps are still operating. Other workers also face a high hurdle to qualify for benefits.

The guidance says a worker “may be able to return to his or her place of employment within two weeks” of quarantining, and parents forced to stop work to care for kids after schools closed are not eligible for unemployment after the school year is over. Workers who stay home because they are older or in another high-risk group are also ineligible unless they can prove a medical professional advised them to stop working.

Some states are also having a difficult time figuring out how to verify how much money self-employed workers typically earn. It might require looking at tax documents, which unemployment offices don’t usually have access to.

“Some of the requirements, the standards that we’re being held to, are going to be incredibly difficult to adhere to,” Maine Labor Commissioner Laura Fortman said.

A Labor Department spokesperson said the agency is “providing as much technical assistance and IT support as possible” to states, some of which are using computer systems that are several decades old.

Scalia’s agency is also in charge of overseeing the new paid sick and family leave regulations, which apply to companies with fewer than 500 employees during the pandemic. The law gave the Labor Department authority to exempt businesses with under 50 employees from providing 12 weeks of paid family leave to care for a child out of school if the leave policy threatens to bankrupt the company.

Businesses that deny workers paid leave don’t have to send the government any paperwork justifying why. The Labor Department’s guidance asks companies to “retain such records for its own files,” a contrast with the heavy documentation required from gig workers who must prove they were affected by the coronavirus outbreak to get aid.

A Labor Department spokesperson said its rules on paid sick and family leave follow Congress’ direction.

“The department’s new rule balances allowing workers to take paid leave to care for their children with keeping small businesses open — as instructed by Congress,” a spokesperson said.

Tension at OSHA

Some Labor Department staffers and outside critics have also faulted Scalia for his handling of OSHA, which falls under his jurisdiction.

The CDC has issued recommendations for the public and businesses to follow practices such as social distancing and sanitizing workstations. OSHA could make those guidelines mandatory for all employers or for all essential employees but has not done so.

“Some of the OSHA staff is frustrated they can’t do more to protect workers. They want an emergency standard that would require employers to follow CDC guidelines,” said David Michaels, a George Washington University School of Public Health professor who served as assistant secretary of labor for occupational safety and health in the Obama administration.

Under Scalia, OSHA has also decided against issuing safety requirements to protect hospital and health-care workers, including rules that would mandate nurses and other providers be given masks and protective gear recommended by the CDC when at risk of exposure.

The union National Nurses United petitioned Scalia to increase the requirements during the pandemic, but a union spokeswoman said the Labor Department has not even acknowledged receipt of the letter.

Hospitals have resisted these rules for years. Tom Nickels, the chief lobbyist for the American Hospital Association, said that he hadn’t spoken to Scalia but that his group has opposed these actions in conversations with OSHA staff because widening the use of N95 respirator masks would be impractical. “The equipment is in short supply,” he said. “We can’t get it.”

OSHA also has not taken significant action to protect workers from retaliation when they speak out about dangerous conditions that expose them to coronavirus, Michaels said.

When workers at a manufacturing plant in northern Illinois tried alerting government officials about their concerns about working shoulder to shoulder, the regional OSHA official responded that “all OSHA can do is contact an employer and send an advisory letter outlining the recommended protective measures,” according to an email reviewed by The Washington Post. “This isn’t very helpful for you or your labor group, but it is the best I have to offer,” the email said.

On Wednesday, OSHA sent out a news release reminding companies that it is “illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.”

“OSHA has completely abandoned their responsibility to protect workers on the job,” said Debbie Berkowitz, who worked at OSHA in the Obama administration and is now director of the worker safety and health program at the National Employment Law Project. “I have never felt this way, that every worker is at the mercy at their boss of whether they get protected. People are going to get sick and die, and they don’t have to.”

This week, Scalia said OSHA would take all worker safety concerns seriously.

“We are fielding calls from workers worried about their health and from workers who believe they have been illegally disciplined by their employer for expressing health concerns,” he said. “We will not tolerate retaliation.”