Supreme Court rejects HHS’ Medicare DSH changes

https://www.modernhealthcare.com/legal/supreme-court-rejects-hhs-medicare-dsh-changes?utm_source=modern-healthcare-alert&utm_medium=email&utm_campaign=20190603&utm_content=hero-readmore

The U.S. Supreme Court on Monday ruled that HHS improperly changed its Medicare disproportionate share hospital payments when it made billions of dollars in cuts.

In a 7-1 decision, the justices said HHS needed a notice-and-comment period for the Medicare DSH calculation change. Justice Neil Gorsuch wrote in the decision that HHS’ position for not following the procedure was “ambiguous at best.”

“Because affected members of the public received no advance warning and no chance to comment first, and because the government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligations, we agree with the court of appeals that the new policy cannot stand,” Gorsuch wrote.

The case was highly technical, and hinged on a dueling interpretations of agency activity that constitutes a “substantive legal standard” in a payment policy change to Medicare.

Under the new Medicare DSH formula, the CMS began to lump Medicare Advantage enrollees in with traditional Medicare enrollees to calculate a hospital’s DSH payment.

But Medicare spending is about $700 billion per year, and the program covers nearly one-fifth of Americans.
“Not only has the government failed to document any draconian costs associated with notice and comment, it also has neglected to acknowledge the potential countervailing benefits,” Gorsuch wrote. “Notice and comment gives affected par-ties fair warning of potential changes in the law and an opportunity to be heard on those changes—and it affords the agency a chance to avoid errors and make a more informed decision.”

The majority opinion also emphasized the size and scope of Medicare, noting that “even seemingly modest modifications to the program can affect the lives of millions.” “As Medicare has grown, so has Congress’s interest in ensuring that the public has a chance to be heard before changes are made to its administration,” Gorsuch wrote.

During oral arguments in the case in January, Gorsuch and Justice Sonia Sotomayor doubled down on the economic magnitude of the change, which HHS estimated to be between $3 billion and $4 billion between fiscal 2005 and 2013.

Justice Stephen Breyer dissented from the majority, and Justice Brett Kavanaugh recused himself because he participated in the U.S. Court of Appeals for the D.C. Circuit ruling that the Supreme Court upheld.

Breyer wrote he believed the government had the legal grounds to skip the public comment period in this policy.
“The statutory language, at minimum, permits this interpretation, and the statute’s history and the practical consequences provide further evidence that Congress had only substantive rules in mind,” he wrote. “Importantly, this interpretation of the statute, unlike the court’s, provides a familiar and readily administrable way for the agency to distinguish the actions that require notice and comment from the actions that do not.”

 

 

 

Will you get your Money’s Worth?

Will you get your Money’s Worth?

InterimCFO

All about Interim Executive Services in healthcare administration.

Will you get your Money’s Worth?

Abstract: This article is a continuation of the series on the value proposition of Interim Executive Consulting.  In this article, I look at the value proposition from the consultant’s perspective.

Recently, I was discussing an interim opportunity in a smaller hospital with a referral source.  The prospective argument was that the client did not have the capacity (did not want) to pay a market rate fee.  You never hear hospitals argue with their lawyers or other consultants on this point, but I digress.

Based on my experience, there are two things that you can be sure of in any interim engagement.  One is that as soon as you think you have an idea of what is going on around you, you had better get ready for a big and sometimes very nasty surprise.  The other is that you are going to find challenges and problems in the situation that the client either intentionally withheld or that the client had no idea of in the first place.  Some clients have told me after skeletons started falling from closets that they harbored the fear that if they were fully transparent that an interim consultant would refuse the gig.  What they do not know is that as professional Interim Executives, we usually do not get the call until the situation is challenging and that if we are distressed by the surprises and uncertainty that characterize Interim Executive Services, we would have found something else to do.  Remember, firefighters run toward a fire when everyone else is running away.

Another principle of doing interim work in my experience is that there is no correlation between the size of the organization and its capacity to produce drama, challenges, and vexing problems.  An argument can be made, and my on-point experience confirms that the risk is higher the smaller the organization because smaller organizations do not have the intellectual and bandwidth resources necessary to avoid creating or falling into serious problems.  If the issues have anything to do with compliance, the potential risks to the interim executive increase exponentially, especially if they are going to be executing documents or making representations on behalf of the organization.  Compliance related signatory authority risk is a risk that cannot be insured by either the consultant or the client. I told the referral source that if anything, there should probably be a significant premium associated with going into a smaller place.

What is a client to do?  I try to mitigate this risk for my client by offering a no-notice, no-fault termination clause in my contract.  The day that the client decides that I am not providing value, I am out of there.  I do not wish to become a perceived burden to an organization during what is already likely an awkward transition.  I have not been released from an interim engagement.  To the contrary, the opposite is true.  In every one of my interim engagements, the timeline has been extended, extensively in some cases once the client appreciates the value proposition.  My average ’90 – 120′ day gig lasts around nine months, and my longest has been over two years.

I have stated repeatedly in these articles that I do not follow bad people and I stand by that contention.  However, this does not mean that there will not be serious problems in an organization.  I followed a CFO that was compelled to resign among other things for digging in over what he believed was a non-compliant acquisition of a physician practice that had millions of dollars of goodwill baked into the deal along with lavish estimates of the value of furniture, fixtures, and equipment.  In another situation, the CEO had been overridden on multiple occasions by a Board that was determined to do non-compliant deals with physicians.  I could go on and on about these types of challenges.

Problems do not have to be compliance related to be challenging and of high potential value.  During the course of every engagement, I am routinely asked, “Is this the worst you have ever seen?”  Most of the time the answer is no, and in every case, it is situation specific.  I was engaged by a hospital to assess the revenue cycle.  Other than the AR being currently fairly valued following multiple unfavorable audit adjustments, about everything else in the revenue cycle process was broken as the client had expected.  The resulting intervention increased cash collections more than $10 million in the next year on around $300 million of revenue.  As an aside, in an organization of this size with a typical operating margin in the 3% range, this intervention more than doubled operating income so, in context, it was a pretty big deal.  This organization was trying to save money by doing things like buying thinner tongue depressors and cutting the amount of soap housekeeping could put in mop buckets while it threw away all of the savings and more in the revenue cycle.  It was the worst revenue cycle operation I have seen measured by results or lack thereof.  This same organization had some of the strongest and highest performing functions in other areas that I have experienced.  Even in the revenue cycle, I got to meet some of the smartest, most dedicated people I have ever known.  They were handicapped by a dearth of leadership and decrepit systems.  None of this supported a conclusion that the organization was terrible or on balance, it was the worst I have ever seen although the revenue cycle concerns did have something to do with the prior CFO being ‘freed up to seek other opportunities.’

What is a consultant to do?  My advice is to the degree possible and reasonable, stand your ground on your professional fee.  It would be nice if you knew you were going to a cake-walk that would mainly be a paid vacation and that you could confidently offer a come-on rate to land the gig.  You know the reality is that you are probably going into a complicated, high-stress situation that is going to tax all of your physical and mental capacity.  This situation is exacerbated by desperate or ignorant consultants and firms that will take any gig at any rate when they have an unsophisticated buyer or just to have something to do.  I have considered offering such a price based on not finding any problems.  For example, I could offer a 30% – 50% discount for a lush sabbatical that would be reversed if (when) issues begin to emerge.  Maybe I could even bargain to double my rate upon discovery of the first compliance problem.   Unfortunately, the world does not work this way, and if you are up against an unsophisticated or ignorant potential client, there is an excellent chance you are going to be undercut by an equally ignorant potential consultant.  You have to decide for yourself how much risk you are willing to take on.  How much is it worth to you to put yourself, your net worth and your family’s livelihood into play in a situation where you may be exposing yourself to the risk of becoming the target of a government compliance investigation?  In a bad case scenario, you could become a witness in a hostile position vis-a-vis the client. The government is currently pursuing multiple felony charges against John Holland (look him up on the internet) even though he alleges and there is apparently little evidence that he benefited directly or indirectly from compliance problems that occurred in organizations he served.  By the way, John may and probably did inherit some of the issues that resulted in criminal charges, i.e., the problems were present in the organization when he started.  Tell me again Mr. cut-rate consultant or firm how anxious you are to get yourself into a situation like this?  By the way, if you are placed by a firm and compliance problems emerge, you are going to be on your own.  Do not forget this.

If you are a decision maker and you are getting resistance to rate discounting from interim executive services providers, it is probably because of their prior experiences and bias about potential problems in your organization.  Instead of dismissing them for something cheaper, you might want to understand better where they are coming from and how that might translate into risk you are bearing that you might not even recognize.  You have to accept the fact that you would not be seeking interim services if you did not have a significant challenge on your hands.  Your best defense against getting into a deal that could make the situation worse is to negotiate an agreement that can be exited rapidly and without recourse. You may have problems that are as yet undiagnosed.  Your run in your current situation could be riding on the ability of the interim executive you choose to pull your bacon out of a fire and potentially save many of your direct reports’ jobs in the process.  What is that worth to you?

Contact me to discuss any questions or observations you might have about these articles, leadership, transitions or interim services.  I might have an idea or two that might be valuable to you.  An observation from my experience is that we need better leadership at every level in organizations.  Some of my feedback is coming from people that are demonstrating an interest in advancing their careers, and I am writing content to address those inquiries.

The easiest way to keep abreast of this blog is to become a follower.  You will be notified of all updates as they occur.  To become a follower, click the “Following” bubble that usually appears near the bottom of each web page.

I encourage you to use the comment section at the bottom of each article to provide feedback and stimulate discussion.  I welcome input and feedback that will help me to improve the quality and relevance of this work.

This blog is original work.  I claim copyright of this material with reproduction prohibited without attribution.  I note and provide links to supporting documentation for non-original material.  If you choose to link any of my articles, I’d appreciate a notification.

If you would like to discuss any of this content, provide private feedback or ask questions, you can reach me at ras2@me.com.

 

 

 

Breaking down blockchain’s role in healthcare

https://www.healthcarefinancenews.com/node/138760?mkt_tok=eyJpIjoiTVRWbU1UVmpOak13T1RZeSIsInQiOiJxVjJhTTVib1QwQkp3Qkl4QVExeUZTZVFoUDZYZ1NHa3U1VGhrQmQ5NklQdnc1c2g3WXJnMXJja09ldTVZTDRNSnZIZUJZQWxGTmg5M2JpS1BZb085UzFHblZvU3FTejVjRFRjV1BcL1ZcL1VoSzBCc2hPcEpVeHJ5c1BKaW9JMnFYIn0%3D

Image result for Breaking down blockchain's role in healthcare HIMSS

HIMSS Director of Informatics Mari Greenberger says that as pilot tests move into production, healthcare organizations should rally around a use case and understand who needs to be involved to reduce redundancies and costs.

 

 

 

The 6 Forces Transforming the Future of Healthcare

The 6 Forces Transforming the Future of Healthcare

The 6 Forces Transforming the Future of Healthcare

 

 

 

The Amazonification of Healthcare

The Amazonification of Healthcare

The Amazonification of Healthcare

 

 

5 Ways Technology is Transforming the Healthcare Industry

5 Ways Technology is Transforming the Healthcare Industry

5 Ways Technology is Transforming the Healthcare Industry

 

 

 

Bon Secours Mercy Health to sell majority stake of RCM to PE firm

https://www.modernhealthcare.com/finance/bon-secours-mercy-health-sell-majority-stake-rcm-pe-firm?utm_source=modern-healthcare-daily-dose-thursday&utm_medium=email&utm_campaign=20190530&utm_content=article4-readmore

Image result for alternative revenue sources

Bon Secours Mercy Health plans to sell a majority stake of its revenue-cycle management subsidiary Ensemble Health Partners to private equity firm Golden Gate Capital, the organizations announced Thursday.

The Cincinnati-based Catholic health system aims to sell 51% of the equity in Ensemble netting $1.2 billion in cash proceeds, which will be reinvested in Bon Secours Mercy when the deal is completed following the standard regulatory approvals.

“Our bread and butter is not to be a revenue cycle management company, so we thought maybe it was time to spin it out as a private company,” said John Starcher, Bon Secours Mercy Health president and CEO, adding that Golden Gate has the capital and expertise to continue to build out Ensemble.

Founded in 2014, Ensemble has grown to 3,600 employees in 30 states that serve 27 health systems. Then-Mercy Health acquired Ensemble in 2016, when it worked with about eight health systems, and invested around $60 million.

At that time, Mercy was coming off a failed revenue cycle outsourcing venture and an attempt to bring it in-house as its cost to collect, point of service collections and other metrics were trending negatively, resulting in a $135 million shortfall in expected cash collections, Starcher said.

Ensemble has helped Mercy Bon Secours accrue about $400 million to its bottom line over a three-year period, he said.

“Our terrible numbers had righted in less than one year,” Starcher said.

More providers are outsourcing their scheduling, billing and collections services as patients shoulder more of their healthcare costs and bad debt levels grow. Hospitals and health systems are turning to specialists that claim to deliver on patient satisfaction goals, which are poised to have a greater impact on reimbursement rates. Outsourcing also allows providers to free up capital and mitigate compliance risks.

“There is a tremendous amount of pricing and rate pressure on health systems,” said Judson Ivy, founder and CEO of Ensemble, adding that consumerism is another driving force behind outsourcing revenue cycle management as consumers seek a better experience. “There is also a talent drain on the industry.”

Meanwhile, alternative revenue sources are becoming a bigger part of hospital and health systems’ strategies. Ninety percent of hospital and health system executives in a recent survey indicated that new revenue streams were an urgent priority and expected to yield a return in the next three years, a study from Boston-based Partners HealthCare and healthcare private equity firm Fitzroy Health found.

Pressure on reimbursement rates from government and commercial payers have driven investment in revenue cycle subsidiaries, commercial real estate ventures, consulting spin offs, supply chain companies and other endeavors.

Bon Secours Mercy Health also has an IT subsidiary that specializes in Epic installations and a call center venture that manages the patient journey, among others, Starcher said.

“We also have expertise as we look across the continuum in marketing, supply chain and HR, and we think this is a burgeoning opportunity,” he said.

But you can’t monetize a mediocre service, Starcher said, offering a word of caution. A subsidiary can’t be so tethered to a health system that it can’t be priced competitively with other standalone companies, he said.

“While many health systems talk about this a lot, it doesn’t mean that it has been done successfully,” Starcher said.

Mercy Health and Bon Secours Health System completed their merger in September 2018, expanding its combined network to 43 hospitals, more than $8 billion in net operating revenue and 57,000 employees.

Over a four-month period following the merger, the health system reported $58.9 million in recurring operating income, which excludes restructuring and integration expenses, on operating revenue of $2.7 billion. With the $95.5 million of one-time costs, its operating income fell to negative $36.6 million. Those losses included an impairment charge on the now-defunct HealthSpan Partners’ investment in Summa and merger-related costs.

That compared to $72.9 million in recurring operating income on revenue of $2.69 billion over the same period the year prior. Operating income fell slightly to $68.2 million with $4.7 million of one-time expenses.

 

House committee to discuss DSH cut repeal next week

https://www.modernhealthcare.com/government/house-committee-discuss-dsh-cut-repeal-next-week?utm_source=modern-healthcare-daily-dose-thursday&utm_medium=email&utm_campaign=20190530&utm_content=article1-readmore

The House Energy and Commerce Committee next week will consider a full repeal of the Medicaid disproportionate share hospital cuts, a sign that hospitals are getting closer to securing the top lobbying priority for safety net providers and academic medical centers.

The committee will hold a hearing next Tuesday on proposed legislation from Rep. Eliot Engel (D-N.Y.), whose home state gets the single largest so-called Medicaid DSH allotment in the country. In fiscal 2018, New York received $1.8 billion of the roughly $12 billion in annual federal payments.

Engel has pitched a full repeal of the cuts mandated by the Affordable Care Act, which are set to take effect Oct. 1. Should those cuts move forward, they would reduce federal DSH payments to states by $4 billion in fiscal 2020 and $8 billion in fiscal 2021. An aide to Engel said that a full repeal “provides the long-term solution.”

Medicaid DSH is the second-largest federal program to boost hospital Medicaid funding, representing about $12 billion in federal spending annually. It has been the subject of a political fight over proposed reforms to the program.

Last week, 300 of the 435 U.S. House of Representatives lawmakers sent a letter to the chamber’s leadership urging a two-year delay to the DSH cuts, and hinted that some in Congress believe the Medicaid DSH formulas need to be reconfigured, calling for a “sustainable, permanent” solution.

“This delay will ensure that hospitals can continue to care for the most vulnerable in our communities,” the lawmakers wrote, led by Engel and Rep. Pete Olson (R-Texas).

The amount the federal government pays out for DSH varies enormously across states and is mostly arbitrary, reflecting the caps set by Congress in 1992 instead of a relevant benchmark.

Florida, where about 3.3 million people are uninsured, gets the exact same federal DSH allotment as Connecticut, where about 245,000 people are uninsured.

Finance Committee Chair Chuck Grassley (R-Iowa) has said he wants to see a reset. Sen. Marco Rubio (R-Fla.), whose state has a strong vested interest in a formula change, has used the Sept. 30 deadline to push a proposal that would base the federal dollar allotment on a particular state’s share of U.S. citizens living below the poverty level.

But the major trade groups representing DSH hospitals continue to push for a simple delay, since their constituents include hospitals in all the states. Dr. Bruce Siegel, CEO of America’s Essential Hospitals, said at a briefing to House staff earlier this month that he’d be open to a formula change as long as hospitals don’t see cuts to existing funding. That means Congress would have to allocate even more money to the program.

House Speaker Nancy Pelosi (D-Calif.) said she backed another delay when she addressed American Hospital Association’s annual meeting in April. She noted that she wouldn’t back a program overhaul.

“We cannot support efforts that will reward states for not expanding Medicaid or simply take DSH money from some other state and give it to others,” she said. “Who thought that was a good idea?”

The DSH debate doesn’t fall along the lines of which states expanded Medicaid or not. Alabama and Missouri haven’t expanded Medicaid but receive high federal DSH allotments, and would likely lose money if Congress decided to redistribute the existing payments.

Although the policy rationale behind the ACA-mandated cuts was that Medicaid expansion would shrink hospitals’ need for DSH money, high-DSH expansion states such as New York and New Jersey aren’t giving an inch.

Siegel framed the debate over expansion states’ need as being “a little more complicated now” than in the early years of the ACA.

“I think the market has changed in the last eight years or nine years when we started down the road of Medicaid expansion,” he said at the Capitol Hill staff briefing.

He pointed to the slight rise in the uninsured rate recently, as well as the increase of high-deductible plans that put more fiscal burden on enrollees.

“We are frankly concerned about any moves to move us toward skinny health plans,” he added.

Enrollment in more bare-bones commercial plans doesn’t really affect the Medicaid enrollment, but he argued that expansion still brings Medicaid shortfall — which is the difference between Medicaid and Medicare reimbursement.

“If you have 70% Medicaid patients which some of our hospitals do, you are in a terrible disadvantage in terms of payment streams, with the shortfall becoming enormous for you,” he said.

There is another Medicaid program that can help hospitals with shortfall: the “upper payment limit” supplement for Medicaid fee-for-service. States can deploy UPL payments to hospitals in order to increase their reimbursement based on rates Medicare would have paid for the same treatment.

UPL is the largest Medicaid supplemental funding program, with about $13 billion in annual spending according to the Medicaid and CHIP Payment and Access Commission data from fiscal 2017.

The UPL program is also under scrutiny by MACPAC, whose analysts found that 17 states have overspent billions of these payments.

 

 

 

Hospital Boards Seeing Low Turnover Rates, AHA Finds

Click to access aha-2019-governance-survey-report_v8-final.pdf

https://www.healthleadersmedia.com/strategy/hospital-boards-seeing-low-turnover-rates-aha-finds

A survey of hospital and health system CEOs noted opportunities for improvement in board governance, alongside some positive trends.

The boards of trustees governing U.S. hospitals and health systems have relatively low turnover rates in an industry that’s shifting rapidly, according to a survey report released Wednesday by the American Hospital Association.

The survey asked more than 1,300 CEOs of nonfederal community hospitals and health systems in the U.S. about their organizations’ governance structures and practices, then the AHA compared their responses to data collected in a similar survey five years ago.

The researchers found that the policies and norms in place for most healthcare organizations result in low levels of board turnover.

The report cited several related opportunities for improvement:

  • Nearly a third of all respondents said their boards do not use term limits at all.
  • More than 75% of respondents said their organizations either didn’t replace board members during their terms or kept reappointing them (when eligible) within the past three years, rather than recruiting a fresh face.
  • Formal assessments were not conducted within the past three years for boards, board members, or chairpersons at 31% of respondent organizations.
  • Older board members are increasingly common. Overall, 12% of board members were age 71 or older in 2018, up from 9% in 2005, the report states. The percentage of members age 50 or younger was 22% last year, down from 29% in 2005.

Luanne R. Stout, president of Stout Associates based in the Dallas/Fort Worth area and a retired Chief Governance Officer of Texas Health Resources, wrote in commentary included with the report that healthcare organizations have a number of options when trying to foster a healthy degree of board turnover.

“Term limits (usually three or four consecutive, three-year terms) are helpful in accomplishing board turnover; however, some boards are reluctant to adopt term limits for fear of losing highly valued board members,” Stout wrote. “Boards that annually review board member attendance, performance and contribution can achieve desired levels of rotation and competency enhancement without utilizing term limits.”

The AHA report also notes some positive trends around healthcare board governance, including the following:

  • There has been some increase in racial and ethnic diversity among board members. The survey found 58% of respondents had boards with at least one non-white member, up from 53% in 2014. (That means about 42% of boards were still composed last year entirely of white members.)
  • A majority of boards restructured to improve their governance.
  • Nearly half of all system boards include members from outside the communities served.

“This year’s survey demonstrates how hospitals and health system boards are rising to meet tomorrow’s challenges through redefining roles, responsibilities and board structures,” said AHA President and CEO Rick Pollack in a statement. “These changes are not surprising given the continued transformation in where, how, when and from whom patients receive care.”

 

 

 

The hospitals staying silent on Medicare for All

https://www.axios.com/hospitals-medicare-for-all-health-care-bernie-sanders-5d28dc00-05cd-411b-98cc-556ddfa12c9b.html

Doctors and nurses treat a patient in a hospital trauma room.

Large hospital systems and trade groups have vociferously criticized Democrats’ “Medicare for All” proposals, but rural facilities and public hospitals that treat mostly low-income patients are sitting on the sidelines of the debate.

Why it matters: Safety nets and many rural hospitals could hypothetically benefit under Medicare for All, but expressing support would put them at odds with their larger brethren.

Between the lines: The Partnership for America’s Health Care Future has become one of the loudest industry-funded voices against Medicare for All.

  • Pharmaceutical companies, health insurers and others are part of PAHCF. But 10 hospital systems and lobbying groups, like Ascension and the American Hospital Association, drive PAHCF.
  • Chip Kahn, the head of the Federation of American Hospitals, said PAHCF was his “brainchild,” according to Modern Healthcare.

Yes, but: Some hospital constituencies aren’t part of the anti-single-payer lobbying.

  • America’s Essential Hospitals, the trade group for safety net hospitals, and the National Rural Health Association, which represents rural hospitals and providers, are not part of PAHCF. They also don’t have official positions on Medicare for All.
  • A spokesperson for AEH said the group recognizes industry peers “have raised reasonable questions” about Medicare for All, but “our focus right now is where our members want it: on stopping the $4 billion cut” to supplemental Medicaid payments.
  • “With specific legislation not moving forward at this time, I don’t see us weighing in anytime soon,” NRHA CEO Alan Morgan said. “I don’t see us at odds. We just haven’t entered the national debate yet.”
  • In an interview, Kahn would not discuss on the record why those two groups were not part of PAHCF.

The big picture: Hospitals that mostly care for poor and uninsured patients could see higher, more stable revenues if everyone had Medicare — a program that often pays higher base rates than Medicaid and infinitely higher rates than nothing at all.

  • Cook County’s public hospital system in Chicago, for instance, gets 79% of its gross patient revenue from the uninsured and Medicaid. That system and multiple other hospitals did not respond to interview requests.
  • Separately, Medicare pays rural “critical access” hospitals 101% of their allowable costs, although those payments have suffered since Congress instituted mandated cuts in 2013.

The intrigue:If you’re trying to solve the problem that we want to get everybody covered and we want to level the playing field between the hospitals that take care of the poor people and hospitals that take care of the rich people, Medicare for All is something we better take a look at,” Eric Dickson, CEO of UMass Memorial Health Care, told Politico.