Under the Biden Administration, the DOJ says the ACA can stand even though there is no longer a tax penalty for not having health insurance.
The Department of Justice, under the Biden Administration, has told the Supreme Court that it has changed its stance on the Affordable Care Act.
The DOJ previously filed a brief contending that the ACA was unconstitutional because the individual mandate was inseverable from the rest of the law.
Following the change in Administration, the DOJ has reconsidered the government’s position and now takes the position that the ACA can stand, even though there is no longer a mandate for consumers to have health insurance or face a tax penalty, according to a February 10 filing.
WHY THIS MATTERS
Hospitals and health systems support the change in position.
“Without the ACA, millions of Americans will lose protections for pre-existing conditions and the health insurance coverage they have gained through the exchange marketplaces and Medicaid. We should be working to achieve universal coverage and preserve the progress we have made, not take coverage and consumer protections away,” said American Hospital Association CEO and president Rick Pollack.
The Supreme Court is expected to return a decision before the end of the term in June.
THE LARGER TREND
The Supreme Court heard oral arguments on November 10, 2020 regarding whether the elimination of the tax penalty made the remainder of the ACA invalid under the law.
The DOJ sided with the Trump Administration and Republican states that brought the legal challenge, while 20 Democratic attorneys general supported the ACA and asked the court for quick resolution.
Mercy Hospital & Medical Center in Chicago filed for bankruptcy protection Feb. 10, amid its plan to close that has been contested in the community.
The Chapter 11 plan includes the discontinuation of inpatient acute care services, Mercy’s owner, Livonia, Mich.-based Trinity Health, said in a bankruptcy filing.
Mercy said it plans to cease operations of all departments, except for basic emergency services, on May 31.
“There have been many steps that preceded the difficult decision to file for Chapter 11,” Trinity said.
In a news release announcing the bankruptcy, Mercy said it was losing staff and “experiencing mounting financial losses” that are challenging its ability to provide safe patient care.
Mercy said its losses have averaged about $5 million per month and reached $30.2 million for the first six months of fiscal year 2021. Further, the hospital has accumulated debt of more than $303.2 million over the last seven years, and the hospital needs more than $100 million in upgrades and modernizations.
The Chapter 11 bankruptcy filing comes just weeks after the Illinois Health Facilities and Services Review Board rejected Trinity’s plan to build an outpatient center in the neighborhood where it is closing the 170-year-old inpatient hospital. The same board unanimously rejected Trinity’s plan to close the hospital in December.
The December vote from the review board came after months of protests from physicians, healthcare advocates and community organizers, who say that closing the hospital would create a healthcare desert on Chicago’s South Side.
The state review board has a meeting to discuss the closure March 16.
The American Hospital Association, other trade groups and individual hospitals filed petitions Feb. 10 asking the U.S. Supreme Court to reverse appeals court decisions in two cases involving outpatient payment cuts to hospitals.
One lawsuit hospitals are asking the Supreme Court to hear challenges HHS’ payment reductions in 2019 for certain outpatient off-campus provider-based departments.
Under the 2019 Medicare Outpatient Prospective Payment System final rule, CMS made payments for clinic visits site-neutral by reducing the payment rate for evaluation and management services provided at off-campus provider-based departments by 60 percent.
In an attempt to overturn the rule, the AHA, the Association of American Medical Colleges and dozens of hospitals across the nation sued HHS. They argued CMS exceeded its authority when it finalized the payment cut in the OPPS rule. They further claimed the site-neutral payment policy violates the Medicare statute’s mandate of budget neutrality.
HHS argued that under the Bipartisan Budget Act of 2015 it has authority to develop a method for controlling unnecessary increases in outpatient department services. Since “method” is not defined in the statute, the government argued its approach satisfies generic definitions of the term. U.S. District Judge Rosemary M. Collyer rejected that argument and set aside the regulation implementing the rate reduction in September 2019.
HHS filed an appeal in the case, and the appellate court reversed the lower court’s decision July 17.
The second lawsuit hospitals are asking the Supreme Court to hear challenges HHS’ nearly 30 percent cut to 2018 and 2019 outpatient drug payments for certain hospitals participating in the 340B Drug Pricing Program.
A district court sided with hospitals and found the payment reductions were unlawful. Two members of a three-judge panel of the U.S. Court of Appeals overturned that ruling in July.
The hospitals argue in both petitions that the Supreme Court should review the cases because of the “excessive deference” the appeals court gave to HHS’ interpretation of the respective governing statutes.
Patient volumes were uneven in 2020, and a new report shows volumes will likely remain below pre-pandemic levels in 2021. This indicates challenges for hospitals looking to stabilize their finances — but there are some key strategies that can help.
Though hospital finances recovered to some extent by the end of 2020, the industry is not out of the woods yet. However, with strategic investments, especially in outpatient care and technology, hospitals and health systems can help buoy their finances in this challenging time, industry observers said.
Patient volumes have fluctuated wildly after the Covid-19 pandemic hit as Covid-19 patients flocked to hospitals and those needing or seeking elective surgery and other care staying away. Not surprisingly, this has had a significant impact on health systems’ financial health.
But outpatient settings and digital solutions offer some revenue-generating opportunities for hospitals.
“A number of the major players and some of the bigger regional systems in the country now are in a place where they get more of their revenue from the outpatient side as opposed to the inpatient side,” said Dr. Sanjay Saxena, global healthcare leader, Payers, Providers, Health Care Systems & Services and managing director at Boston Consulting Group, in a phone interview.
In fact, outpatient care was the only healthcare setting that saw an increase in patient volumes in 2020. Though emergency department visits and inpatient volumes were down from July to December last year compared to the same period in 2019, outpatient volumes actually increased by 5%, according to a report by consumer credit reporting agency TransUnion.
Healthcare providers that have well-established and expansive outpatient and ambulatory care businesses will be able to weather patient volume trends better in 2021 than those who do not, said Saxena.
Take HCA Healthcare, for example. The Nashville, Tennessee-based healthcare giant’s revenues jumped to $14.2 billion in the fourth quarter of last year, up from $13.5 billion in the same period in 2019. HCA’s ability to move care outside of the inpatient setting to the ambulatory environment really helped their financial performance, said Saxena.
On the other hand, smaller and more rural hospitals, which depend heavily on ED and inpatient care, may face a challenging year, he added.
Another key investment for hospitals will be in digital solutions to help them manage the ups and downs of patient volume.
“Resilience as a broad topic for provider executives is absolutely top of mind,” said Gurpreet Singh, health services leader at PriceWaterhouseCoopers, in a phone interview. “And resiliency can be achieved in a number of different ways. One way is [figuring out] — can you predict demand a little bit better?”
Patient demand forecasting solutions will be popular, with 74% of health executives recently surveyed by PwC’s Health Research Institute saying their organizations would invest more in predictive modeling in 2021.
Further, hospitals will see savings in some unexpected places. For example, with an increasingly remote and mobile healthcare workforce, hospitals may see cost savings on real estate and facility leases, said Singh.
They can use these savings to invest further in telehealth and at-home care programs to expand care outside of the four walls of the hospital, he added.
The industry has to come to terms with changes brought on by the Covid-19 pandemic, including the shifts in care delivery and patient preferences.
“Some of these things are structurally significant changes,” said Saxena. “Organizations ignore these things…at their peril. Some leading organizations and systems will find a way to embrace [these changes] and leapfrog others in the market coming out of 2021.”
Tower Health said it is cutting salaries of executives and managers amid financial losses linked to the COVID-19 pandemic.
The West Reading, Pa.-based health system has struggled financially in the last two fiscal years. It recorded an operating loss of $378.2 million in fiscal year 2020, as well as an operating deficit of $178.8 million the year prior. And last November, the health system said it would consider selling six of its Philadelphia-area hospitals, including those it has purchased since 2017 from Franklin, Tenn.-based Community Health Systems, as part of a financial turnaround plan.
To help offset the financial damage, about 400 Tower Health executives and managers will have their pay cut, beginning in their Feb. 19 paychecks, according to The Philadelphia Inquirer, which cites a letter CEO Clint Matthews wrote to staff. Executives will have their pay cut by 15 percent, and directors, senior directors and associate vice presidents will have their pay cut by 10 percent.
In a statement shared with Becker’s on Feb. 8, the health system said it “is undertaking several initiatives as part of a coordinated plan to improve operations, strengthen care delivery and address the ongoing financial impact of COVID-19.”
“These actions include compensation reductions for executives and managerial employees, along with operational improvements to reduce costs and enhance revenue,” according to the Tower Health statement.
The salary cuts will be in effect until June 30, and do not affect front-line clinical or support staff, who received merit increases in January.
Tower Health projects cost savings of about $11.6 million because of the pay cuts.
“Reducing management compensation is a difficult but necessary decision that will stabilize and strengthen our financial performance as we continue to meet the challenges of the COVID-19 pandemic, as well as our ongoing mission of providing compassionate, accessible, high-quality, cost-effective healthcare to our communities,” the health system said.
As “consumerism” becomes an ever-greater focus of health system strategy, we’ve begun to field a number of questions from leaders looking to develop a better understanding of consumers in their market.
In particular, there’s a growing desire for more sophistication around consumer segmentation—understanding how preferences and behavior differ among various kinds of patients.
Traditional segmentation has largely been marketing-driven, helping to target advertising and patient recruitment messages to key groups. For that, the old-school marketing segments were good enough: busy professionals, the worried well, the growing family, and so forth.
But as systems begin to develop product offerings (telemedicine or home-based services, for example) for target populations, those advertising-based segments need to be supplemented with a more advanced understanding of care consumption patterns over time. Segmentation needs to be dynamic, not static—how does a person move through life stages, and across care events, over time?
A single consumer might be in different segments depending on the type of care they need: if I have a new cancer diagnosis, that matters more than whether I’m a “busy professional”, and my relevant segment might be different still if I’m just looking for a quick virtual visit.
Layered on top of demographic and clinical segments is the additional complexity of payer category—am I a Medicare Advantage enrollee or do I have a high-deductible exchange plan?
With consumers exercising ever greater choice over where, when, and how much care to receive, understanding the interplay of these different kinds of segments is fast becoming a key skill for health systems—one that many don’t currently have.
Humana, the nation’s second-largest Medicare Advantage (MA) insurer, is pushing further into home-based care, partnering with Denver-based startup DispatchHealthto offer its members—especially those with conditions like heart failure, chronic obstructive pulmonary disease, and chronic cellulitis—access tohospital-level care at home.
The service will initially be available in the Denver and Tacoma, WA markets, with plans to expand to Arizona, Nevada, and Texas across 2021. Humana members who meet hospital admission criteria will receive daily home visits from an on-call, dedicated DispatchHealth medical team, as well as 24/7 physician coverage enabled by remote monitoring and an emergency call button.
DispatchHealth will also coordinate other patient care and wraparound services in the home as needed, including pharmacy, imaging, physical therapy, durable medical equipment, and meal delivery. Dispatch’s earlier offerings centered around home-based, on-demand urgent and emergency care services, now available in at least 29 cities nationwide.
Humana’s partnership with DispatchHealth could deliver a full care continuum of home-based services to its Medicare Advantage enrollees and has the potential to displace hospitals from at least a portion of acute care services.
Post-COVID, it’s becoming increasingly clear that the nexus of care delivery has shifted even more rapidly to consumers’ homes—and traditional providers will need to rethink service strategies accordingly.
Remember 2019, when the scariest “new” pathogen was Candida auris, a drug-resistant fungus that was creeping into hospitals and nursing homes, often proving fatal to elderly and immune-compromised patients who came in contact with it? C. auris proved difficult to eliminate from infected facilities, sometimes requiring drywall to be ripped out of patient rooms in order to fully decontaminate.
With all of our attention focused on COVID-19, C. auris and other drug resistant bacteria and fungi have been making a resurgence, according to a recent New York Times report. In Los Angeles County alone, 250 facilities now report C. auris infection, up from just a handful before the pandemic.
Unlike COVID-19, these pathogens cling relentlessly to surfaces, so protocols allowing the reuse of protective equipment in order to conserve resources inadvertently provided a mechanism for these bugs to spread.
Steroids used to treat COVID-19 patients suppress the immune system, making patients more vulnerable. According to one expert, the spread of these drug-resistant infections shows the danger of “seeing the world as a one-pathogen world”.
Providers have had a laser focus on preventing the aerosol spread of COVID—now is the time to double down on surface decontamination and infection mitigation procedures to make sure we don’t meet the end of the pandemic with the rise of other classes of “superbugs”.
Overlake Medical Center & Clinics invited about 110 donors who gave more than $10,000 to the Bellevue, Wash.-based health system to receive COVID-19 vaccines, drawing criticism from the state’s governor, according to The Seattle Times.
Molly Stearns, the chief development officer at Overlake, emailed the “major donors,” as they were addressed in correspondence, about 500 open appointments in its COVID-19 clinic that were set to open Jan. 23. According to The Seattle Times, donors who received the email got an access code to register for appointments.
The vaccination appointments weren’t exclusive to donors, but were open to some 4,000 people who were board members, some patients, volunteers, employees and retired health providers, Overlake told the newspaper. All registrants were supposed to meet state-specific eligibility requirements for the vaccine, according to The Seattle Times.
Tom DeBord, Overlake’s COO, told the newspaper that the invitation was sent after the hospital’s scheduling system stopped working properly. To speed up distribution, the system began contacting people whose emails they had access to, which included donors, retirees, some patients and board members.
“We’re under pressure to vaccinate people who are eligible and increase capacity. In hindsight, we could certainly look back and say this wasn’t the best way to do it,” Mr. DeBord told The Seattle Times.
Once Gov. Jay Inslee’s office found out about the “invite-only” appointments, the office asked Overlake to shut down the sign-ups, which the system did.
In a Jan. 27 statement posted to the health system’s website, Overlake said all communications with people invited to sign up for the vaccine “made clear that people must show proof of eligibility under current Washington State requirements to ultimately be vaccinated, no matter who they are or how they are affiliated with us. We recognize we made a mistake by including a subset of our donors and by not adopting a broader outreach strategy to fill these appointments, and we apologize. Our intent and commitment has always been to administer every vaccine made available to us safely, appropriately, and efficiently.”
Mario Jardon, president and CEO of the Hialeah-based Citrus Health Network, made $574,660, which the state says includes $360,840 in excess compensation. The state says the agency also paid excessive compensation to two other executives at the community-based mental health center, for a total of $403,000 in excessive compensation. The company denies it.
The child welfare agency that serves Miami-Dade and Monroe counties pushed back Wednesday against allegations made by the governor’s chief inspector general, denying claims that it used taxpayer funds to pad excessively high salaries of top executives.
In a statement, Citrus Health Network President and CEO Mario Jardon and Citrus Health Network Board of Directors Chair Patricia Croysdale said that the state did not check with them before issuing the preliminary report and Jardon’s salary, and that of chief operating officer Maria Alonso, “do not come from state funds allocated to Citrus as the lead agency, and are provided at no cost to the state.”
Citrus Health Network, a mental health nonprofit, won a half-billion dollar contract in 2019 from the state Department of Children & Families to oversee child welfare cases in Miami-Dade and Monroe. The arrangement is part of the state program that has privatized state services to a patchwork of “lead agencies.”
Florida law prohibits a community-based care lead agency that receives state and federal funding to provide welfare services from paying its executives more than 150% of what the Department of Children and Families secretary makes — a threshold estimated at $213,820.
In response to the Citrus Health comments, Meredith Beatrice, spokesperson for Gov. Ron DeSantis, said that the intent of the report was to highlight agencies that “were either in non-compliance or appeared to have excessive compensation” and will be investigated further.
“Nothing within the document is conclusory or final,’’ she said.
PRELIMINARY FINDINGS
The report says Jardon made $574,660, which the state says includes $360,840 in excess compensation. The state also said Alonso, Jardon’s partner, made $42,379 over the maximum, and the company’s chief information officer, Renan Llanes, made $172 over the limit.
“The Governor’s Office of Inspector General chose to release a preliminary report incorrectly alleging inappropriate use of state funds and excessive executive compensation without first confirming the information in the report directly with Citrus, and without utilizing other publicly available fiscal documents related to our company,’’ the company’s statement said.
The Citrus Health contract began in July 2019, but the state report appears to have used compensation data from tax documents ending in June 2019.
Citrus also pointed to its web site, which has posted a document that shows a 2020-21 budget that includes compensation of $207,711 with “other compensation” of $20,498 for its director. The company said that refers to Esther Jacobo, the director of the Citrus Health Family Care Network, who formerly was the interim secretary at DCF.
A footnote then adds that “CEO and COO are provided at no cost to [Citrus Family Care Network] and DCF.”
“At the beginning of operations as the lead agency, Citrus’ Board of Directors resolved not to burden the budget of the lead agency with the salaries of the CEO and COO of Citrus Health Network,” said Citrus Health Network spokesperson Leslie M. Viega in a statement. “Our CEO and COO’s salaries do not come from any funds allocated to Citrus as the lead agency, regardless of the source, including state-appropriated funds, state-appropriated federal funds, or private funds.”
The company says the salaries are paid through another division, its federally qualified health center which provides behavioral health, primary care, housing for the homeless, and other social services.The Herald/Times asked Citrus Health for a copy of the financial documents that demonstrate this claim but the organization has not provided them.
The inspector general’s investigation is the result of an executive order by DeSantis in February 2020 after the Miami Herald reported and a House of Representatives investigation found that the Florida Coalition Against Domestic Violence paid its chief executive officer, Tiffany Carr, more than $7.5 million over three years.
Carr, who is now a party to two lawsuits, including an attempt by the state to claw back the compensation she was awarded, is currently engaged in negotiations with the attorney general’s office over a mediated settlement.
But it was Carr’s ability to use her network of influential legislators and lobbyists, coupled with the lack of oversight by the Department of Children and Families, that provoked legislators and the governor’s investigators to look into how other non-profits are compensating their executives.
Carr persuaded her board of directors, a close-knit group whom she hand-selected, to approve her compensation package that included thousands of hours of paid leave which she converted to cash.. She justified her salary and bonuses by using comparable salaries of similar organizations but she is alleged to have misrepresented the size of her organization to make the comparisons work to her advantage.
Investigators also suspect Carr avoided declaring millions of dollars in deferred compensation on her tax forms by using a loophole in the tax code.
The governor’s office said the next phase of the investigation will be to meet with the nine community-based care organizations early next week “to explain the process” before the final report is completed by June 30.
“It is important to note that the entities impacted from this review will have an opportunity in late May to offer a written response to the draft of the final report,’’ Beatrice said. “Their responses will be included as an attachment to the final report presented to the governor.”
HENRY KOTULA 