New TJC Standards Addressing Patient Flow and Boarding
Citing a recent American College of Emergency Physicians state-by-state report card that gave the nation as a whole a “D+” in emergency department care, Modern Healthcare proclaimed the worsening state of the “emergency-care environment” a consequence of “increased demand and shrinking resources.”1 The decline in emergency department care is said to be due to workforce shortages, limited hospital capacity, long wait times and financial difficulties. The situation is expected to get worse as millions of individuals newly insured under Medicaid as a result of the Affordable Care Act flood the emergency rooms because they are unable to find physicians who are accepting new Medicaid patients.
Recognizing that patient flow and emergency room throughput is key to improving safety and quality of care, The Joint Commission (“TJC”) implemented standards revisions addressing “patient flow,” many of which became effective January 1, 2013. However, because patient boarding and leadership collaboration for behavioral health patients were deemed by TJC to be “particularly complex” issues, the implementation of two elements of performance (“EP”) addressing these issues were deferred until January 1, 2014 to give hospitals more time to adopt and test solutions before they affect accreditation decisions.
Following are the new EPs effective on January 1, 2014:
Standard LD.04.03.11: The hospital manages the flow of patients throughout the hospital.
(This standard highlights a systematic, hospital-wide approach to patient flow that emphasizes the use of performance measurement to monitor patterns and trends and identify potential improvement opportunities.)
EP A 6: The hospital measures and sets goals for mitigating and managing the boarding of patients who come through the emergency department.
Note: Boarding is the practice of holding patients in the emergency department or another temporary location after the decision to admit or transfer has been made. The hospital should set its goals with attention to patient acuity and best practice; it is recommended that boarding time frames not exceed four hours in the interest of patient safety and quality of care.
EP A 9: When the hospital determines that it has a population at risk for boarding due to behavioral health emergencies, hospital leaders communicate with behavioral health care providers and/or authorities serving the community to foster coordination of care for this population.
Hospitals accredited by TJC also should review Standard LD.04.03.11: EPs A 5, A 7 and A 8; and Standard PC.01.01.01: EPs A 4 and C 24 to review changes addressing patient flow implemented in January 2013.
MedPAC Votes to Recommend “Site-Neutral” Payment for Services Provided in Physician Offices and in Hospital Outpatient Departments
The Medicare Payment Advisory Commission (“MedPAC”), an independent Congressional agency established by the Balanced Budget Act of 1997 to advise Congress on matters impacting the Medicare program, voted at its January 16-17 meeting to recommend that Congress decrease the reimbursement differential between services provided in an outpatient hospital setting and services provided in the physician’s office.2 The recommendations will be published in MedPAC’s March 2014 report to Congress. While Congress is not obligated to accept MedPAC recommendations, they certainly influence deliberations and law making.
If the Medicare pay disparity between services provided in different provider settings is eliminated by Congressional action, the savings to Medicare will be in the millions, and hospitals would see a significant 0.6% drop in Medicare revenues.3 Further, such action would limit the advantages to “provider-based” reimbursement for hospitals and, thus, may limit the acquisition of physician practices and the conversion of ancillary services to provider-based services. Medicaid programs often follow Medicare rules, so further decreases in already abysmal Medicaid reimbursement could be forthcoming if Congress acts on the latest MedPAC recommendations.
MedPAC has considered “site-neutral” payment policies before. However, Congress may be more interested in implementing a change now (and the hospital lobby may have more of an uphill battle fighting a new policy) because the savings from site-neutral reimbursement could be used for a permanent fix of the vexatious “sustainable growth rate” cost control program (“SGR”). Currently, the SGR threatens physician fee schedule payment rate cuts on an annual basis when spending grows faster than inflation. So far, 11th hour Congressional action has averted the automatic pay cut from year to year. Congress is attempting to reach agreement on a reform that would permanently repeal the SGR.
It will come as no surprise that the American Hospital Association (“AHA”) strongly opposes site-neutral reimbursement because hospitals provide costly services and support to the community not provided by physician offices and ambulatory surgical centers. For example, hospitals provide “emergency standby services” (e.g., 24/7 access to care, a safety net encompassing the care of all patients who seek emergency medical care regardless of ability to pay, disaster readiness and response), which are not “explicitly funded.”4 The AHA believes “[i]t is critical that Congress consider these unique roles of hospitals and refrain from imposing site-neutral payment cuts on HOPD [hospital outpatient department] services.” Hall Render will post a link to the MedPAC report when it is released and will follow any legislative developments that may follow.
CMS Announces New Policy on FOIA Request of Physician Payment Data
On January 17, 2014, the Centers for Medicare and Medicaid Services (“CMS”) published in the Federal Register a modified policy addressing requests for information under the Freedom of Information Act (“FOIA”) concerning reimbursement paid to individual physicians under the Medicare program (“Modified Policy”). Effective March 18, 2014, when presented with a FOIA request for physician payment information, CMS will make a “case-by-case” determination as to whether exemption 6 of the FOIA applies.5 Exemption 6 will require CMS to weigh the balance between the privacy interest of individual physicians and the public interest in disclosure of such information. A decision to disclose will depend on the facts and circumstances of each request, but CMS stated it was “committed to protecting the privacy of Medicare beneficiaries” in all cases.
Under the previous policy as set forth in the November 28, 1980 Federal Register, the public interest in learning an individual physician’s Medicare reimbursement was deemed insufficient to compel disclosure under FOIA. The previous policy was driven by the outcome of a case, Florida Medical Association, Inc., et al. v. Department of Health, Education, and Welfare, et al. (M.D. Fla. 1979) in which the Florida district court issued a permanent injunction barring HEW, the predecessor agency to HHS, from disclosing annual Medicare reimbursement information of identifiable individual physicians. However, on May 31, 2013, the Florida district court vacated its earlier permanent injunction, determining that such a broad injunction was no longer authorized under the Privacy Act subsequent to a decision in a 1982 11th Circuit case. Following the Florida court’s 2013 decision, CMS solicited and reviewed public comments and decided to institute the Modified Policy in which it will make case-by-case determinations on whether disclosure of individual physician payment information is permissible under FOIA or exempt under exemption 6. The notice announcing the Modified Policy can be found here.
If you have any questions or would like additional information on these topics, please contact Adele Merenstein at 317-752-4427 or amerenst@hallrender.com or your regular Hall Render attorney.
Please visit the Hall Render Blog at http://blogs.hallrender.com/ for more information on topics related to health care law.
1 Rice, Sabriya, Nation’s Strained Emergency Care Getting Worse, ER Docs Warn, Modern Healthcare posted Jan. 16, 2014.
2 Dickson, Virgil, MedPAC Votes for Site-Neutral Medicare Payments, Modern Healthcare posted Jan. 16, 2014.
3 Id.
4 American Hospital Association Fact Sheet: Additional Hospital Outpatient Services at Risk for Site-Neutral Cuts (Jan. 10, 2014) at http://www.aha.org/content/13/fs-outptsiteneutral.pdf (last visited Jan. 20, 2014).
5 Exemption 6 permits the government to withhold information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”
