Lansing Lines is presented in cooperation with MIRS, a Lansing-based news and information service.
Providers For Injured Auto Wreck Victims Shutting Down; Berman Drops Bill
The president of a West Michigan-based home health care provider said he’s personally aware of nine Michigan facilities that will close their doors for good as of July 2 in reaction to the 2019 auto insurance law designed to cut rates for drivers.
Frantic families are calling Kris Skogen, president of AdvisaCare, and his team about availability at his facilities for their catastrophically injured loved one after they received a 30-day notice from their current provider that they’ll be ending service.
“It’s a real thing. It’s a mess out here,” he said.
The comments come a day after Rep. Ryan Berman (R-Commerce Twp.) introduced HB 4992 to change reimbursement rates for providers based on regional market averages as calculated by the Michigan Department of Insurance and Financial Services.
The current law mandates providers charge auto insurers 55% of what they’re currently charging for care for those injured in auto insurance. The other option is to charge 200% of what Medicare would charge.
The problem, Skogen said, is Medicare doesn’t cover hourly home care, a service provided in Michigan due to the coverage through its unique lifetime medical coverage for catastrophically injured patients. It also doesn’t cover supervised attendant care or 24-7 supervision.
With 55 cents of every $1 going to cover direct labor costs, AdvisaCare will be forced to pay for a portion of the services they provide auto accident victims starting July 2, he said.
“We will be upside down on every care we provide (to auto accident victims),” he said.
Tom Judd, the Michigan Brain Injury Provider Council president, said he’s aware, anecdotally, of 600 patients who will be displaced and 1,200 jobs that will disappear without a change to the law. He knows of nine to 10 companies that will no longer serve auto insurance accident victims and three companies that will completely close.
Since his organization doesn’t represent every Michigan home care provider, he’s confident the number of affected patients is much higher.
He supported Rep. Doug Wozniak’s (R-Shelby Twp.) HB 4486 and Sen. Curtis Hertel Jr.’s SB 0314 that allows providers to continue charging what they charged Jan. 1, 2019, or whatever a new fee scheduled created by MBIPC allows.
The Berman bill, he said, would work, as well.
HB 4992 attempts to address the core problem legislative leaders have had with the old auto no-fault law. Too many providers were bilking the catastrophic claims fund and auto insurers, which jacked up rates for the drivers to cover the costs.
This bill would have DIFS set industry averages that would bring down the rates of those arguably overcharging. Berman said if the current 2019 law is left alone, those who did charge higher rates may be able to survive a 45% rate cut. But those who are “doing the right thing” and charging customary rates at a small profit margin are being faced with shutting down.
“Just as many roads lead to Rome, multiple bills can achieve the same result of averting a crisis of care,” Judd said.
Skogen said he hasn’t read the Berman bill, but is aware of the concept and “We’re looking forward to having a conversation with the Representatives on the details soon.”
For his part, he’s taking the patients being displaced from other homes because he’s confident the Legislature will change the law eventually.
“It would be unfathomable to think they wouldn’t change the law,” Skogan said.
MIRS learned House Speaker Jason Wentworth (R-Farwell) was open to a “narrowly tailored” adjustment after Gov. Gretchen Whitmer made the issue a legislative priority.
Republican leaders suspect claims of financial hardship from brain injury clinics and other providers of those severely injured in car wrecks may be exaggerated.
In other states, auto insurers cover medical expenses to the catastrophically injured up to a point. It’s not unlimited. After the cap is reached, those not financially wealthy go on Medicaid and typically end up in a nursing home.
For Michigan patients, the argument is they paid extra on their auto insurance bills for unlimited lifetime benefits in case of a catastrophic injury. They were injured and deserve the treatment at facilities that will work to improve their quality of life, not a stay in a nursing home, where rehabilitation isn’t part of the equation.
“People bought their policies years and even decades ago with contractual assurances,” said attorney George Sinas, general counsel for the Coalition to Protect Auto No-Fault. “Now that care could be ripped away from them.”
Meanwhile, earlier this week, Rep. Julie Brixie (D-Meridian Twp.) and Rep. Andrea Schroeder (R-Independence Twp.) announced their work on a legal avenue to help these facilities.
They brought 73 current and former lawmakers, many of them yes votes on the 2019 change, to sign a legal memo questioning whether the retroactive application of these provisions in the 2019 law would violate the Contracts Clause of the Michigan Constitution.
They also signed a document stating they did not intend for the fee schedule for auto insurance accident payment to providers be applied retroactively.
They also thought the 56-hour-per-week cap on family and friend-provided, home-based attendant care would only apply to those accident victims going forward, not the hundreds of current people living with brain injuries.
“I refuse to believe that it was the intent of the Legislature to make these changes retroactive,” said Rep. Phil Green (R-Millington), a yes vote on 2019 law.
Panel OK With Nurse Anesthetists Operating Without Supervision
Certified registered nurse anesthetists (CRNAs) would be permitted to work without the supervision of a physician and as the sole anesthesia provider, under a House bill that moved out of the Senate Health Policy and Human Services Committee, 7-3.
HB 4359, supported by CRNA and rural hospitals to address staffing shortages, was opposed by the Senate’s sole physician, Sen. John Bizon (R-Battle Creek), who said it “lowers the standard of care for the citizens of this state.”
“Nurses are not doctors. Their training differs and the courts agree and hold the professions to a different professional standard and a different professional liability,” said Bizon, adding that telemedicine could be used to address staffing shortages.
When the sponsor of the legislation, Rep. Mary Whiteford (R-Casco Twp.), initially presented her HB 4359 in March, she explained 42 states have no physician supervision requirement for CRNAs and 19 of those states have opted out of the federal Medicare supervision rule for nurse anesthetists.
In April 2020, the Anesthesia Business Consultants described the phenomenon as a waiver-product from the Donald Trump White House with ambitions of allowing CRNAs to operate at the fullest extent authorized by their state and to relieve physicians from the supervisory obligations.
Groups like the Michigan Society of Anesthesiologists (MSA) claim HB 4359 could jeopardize the health and safety of Michigan patients. It lacks any cost savings to taxpayers and could “to increase health care costs at a time when Michiganders can least afford it,” said MSA.
During a May 27 Senate Health and Human Services Committee meeting, Batya Sherizen, who offered a patient’s perspective on HB 4359, retold the story of her being admitted into a Henry Ford Hospital in January 2019 due to a “very serious pregnancy-related complication.”
“I had to undergo surgery and I was bleeding a lot. Thankfully, a trained team of doctors were there to help me and who understood, really, the deepest parts of my fears, my anxiety with the breathing tubes and all the invasive lines and everything that was to come,” Sherizen said, adding she lost 25 units—a unit being equal to one pint—of blood.
A cardiac anesthesiologist was able to resuscitate her and she woke up in the ICU heavily sedated, Sherizen explained.
Now after her son has been born, she said she would want a doctor in the room if she had to go through the experience again.
Dr. Sid Martin, an orthopedic surgeon from Fenton, supported the bill at the same May meeting, saying he shared the position with many other doctors despite the posture of their various associations.
“Under the bill, the CRNAs would not be providing any medical service that these highly skilled professionals are not already providing every day in every corner of this and every other state and territory,” Martin said. “I would tell you that if surgery is going on, I think there is a surgeon in the room and therefore there is always a physician in the room—only in very rare instances, such as for diagnostic tests or with mild sedation are CRNAs providing anesthesia services.”
The aforementioned scenarios would be when anesthesia would not be in association with a procedure—currently in those less extreme settings, Martin said an orthopedic surgeon like himself, who did one month of anesthesia training in 1986, would sign off on a piece of paper stating he is supervising the plan for anesthesia prior to the procedure.
He said he could also sign off on supervising up to 30 days after the procedure took place.
Dr. Loay Kubbani of the Michigan Chapter of the American College of Surgeons joined the MSA and the Michigan State Medical Society in opposing the bill, explaining a CRNA would have between four and six years after high school for training, including approximately 2,000 hours of patient care.
Meanwhile an anesthesiologist would have studied 12 to 14 years after high school and have processed 16,000 hours of care.
Kubbani said while his CRNAs do an excellent job caring for his patients, it’s not uncommon for one to call for help in the operating room and he believes a CRNA having the support of someone they can talk to and discuss problems with “is key.”
Bizon said he looks forward to working with all interested parties in offering an amendment to the bill on the floor.
In Detroit, COVID Vaccines Are Coming To Your Door
The city of Detroit will be making house calls to its homebound residents as a way to open up a new front in the ongoing COVID-19 vaccine efforts.
The city is sending out 150 teams of vaccinators starting Monday to visit people’s homes. Those who are known to be homebound residents by the state will be contacted starting today, according to a press release from the city. The homebound vaccination strategy is expected to run through November or early December.
“In Detroit, we have built a vaccination strategy that meets people where they are, specifically in the neighborhoods, at parks and other gathering sites, to reach as many people as we can,” said Detroit Chief Public Health Officer Denise Fair. “It is critical for us to get our homebound residents vaccinated. Our teams will call them to make appointments. They don’t have to call us. We believe it is imperative to remove any barriers they have.”
As of June 9, the state is reporting 59.9% of Michiganders 16 and older have begun vaccination while 48.4% have initiated their series.
USA Today: ‘In The Race To Put Shots In Arms, Michigan Lost’
Also on June 9, the Michigan Freedom Fund (MFF) played up a USA Today report that studied the vaccine rollouts in Michigan and Minnesota and concluded that “in the race to put shots in arms, Michigan lost.”
The report said Michigan’s vaccine rate lagged Minnesota, a state that “essentially” has the same number of hospitals, rural clinics and doctors per capita as Michigan, according to USA Today.
It was that lagging vaccination rate that exacerbated “a late-pandemic spike in cases that killed 2,500 people in Michigan,” according to the paper.
MFF Executive Director Tori Sachs said, “For months, the Michigan Freedom Fund asked the Whitmer administration to focus vaccine efforts on nursing homes, on the most at-risk populations, and on getting shots efficiently and quickly into arms. Instead, the governor snuck to Florida and the members of her cabinet responsible for the state’s vaccine rollout and her health department went on secret vacations in Florida and Alabama.”
Daily COVID Numbers Lowest They’ve Been Since Last June
In other news, the state’s COVID cases continue to decrease. On June 9, 257 cases were added to the rolls, the second straight day of fewer than 300 cases being reported.
Those numbers are as low as the daily numbers have been since June 2020, when the daily cases mostly hovered in the 100-300 range that month.
Majority MI Voters Believe Pandemic Is Controlled, 38.5% Still Plan On Mask-Wearing
More than 72% of Michigan voters believe the pandemic largely is controlled, with 75.5% still intending to follow some mitigation efforts for safety as the state approaches the light at the end of the COVID-19 tunnel.
With 47.9% of the state’s population being fully vaccinated as of today, polling from near the end of May exhibited 38.5% of voters plan on still wearing masks in indoor public places, 20.2% said they or someone in their household contracted COVID-19 during the pandemic and 20% continue to say they do not plan on getting vaccinated against the virus.
The Detroit Regional Chamber made the statewide survey—using a 600-person sample and conducted from May 22-26 by the Glengariff Group Inc.—broadly available the afternoon of June 7. Its coverage included the state’s economy, approval ratings of key elected officials, and the labor market and vaccinations.
When it came to vaccinations and COVID-19, some of the findings featured:
– Strong Republican voters had the highest percentage of respondents who said they did not plan on getting vaccinated at 34.2%. Of the overall population of those not meaning to be vaccinated, 19.3% said it was because there wasn’t enough testing or research yet, 15.8% said they have not had the time and 10.5% said they did not trust the side effects.
– 92.1% of unvaccinated voters said Michigan offering a lottery prize similar to Ohio’s Vax-a-Million would not motivate them to get the vaccine.
– 18-29-year-olds were more likely to have been exposed to COVID-19 at 36.3% of the group contracting the virus in the household.
– 36.2% of white respondents knew someone who died from COVID-19, while 64.5% of Black respondents knew someone who died of the virus.
In addition to the 47.9% fully vaccinated against COVID-19 as of June 7, there were 59.7% at least partially vaccinated. The state added 419 new COVID-19 cases that week to bring the total to 890,764, while another 11 deaths over that period brought that statistic to 19,376.
As for labor, 76% of those employed before the pandemic continue to work in the same job, with 2.8% waiting for callbacks to their pre-COVID-19 jobs.
More than 50% of employed respondents said they would favor a combination of working from home and on-site, with an overall 77.4% of workers preferring at least some portion of their job be working from home.
Gov. Gretchen Whitmer’s job approval rating went from 43.3% favorable in January 2020, 59.1% favorable in October 2020 to 50% in May 2021 – with the unfavorable job leaning expanding from 35.9% in January 2020, 38.1% in February 2021 to 43.8% last month.
Whitmer’s approval was 91.9% amongst strong Democrats, 85.7% within leaning Democratic voters and 43.8% for independents – 45.8% of independent voters disapproved of the governor.
President Joe Biden’s job approval rating was at 47.4% approval and 45% disapproval, which the report said reflected a closeness to the November 2020 race without much movement since then.
Auditor General Asked To Track Nursing Home COVID Deaths
The House Oversight Committee chair June 3 asked the Auditor General to double-check the number of COVID-related deaths at senior care homes to make sure the state is reporting accurate data on how extensive the pandemic ravished vulnerable older adults.
Rep. Steve Johnson (R-Wayland Twp.) said he doesn’t trust the Michigan Department of Health and Human Services with doing its own investigation. Rather, the Auditor General “does great work at getting the truth,” he said.
At this point, Michigan is reporting 5,663 resident deaths and 77 staff deaths at long-term care facilities, which makes up 30% of all COVID-19 deaths in the state of Michigan.
However, Johnson fears the number is much higher since the state is counting on nursing homes to accurately self-report their data while 3,474 of the mostly smaller 4,596 long-term care facilities have not reported at all.
“If they’re not reporting, the odds that they had no deaths is highly, highly unlikely,” said Johnson, who is still crafting the formal letter to the Auditor General.
Yet, DHHS Director Elizabeth Hertel said after testifying in front of Johnson’s Oversight Committee meeting that she feels the department has an accurate picture of how many people have died in these facilities.
The remarks come a year after former Director Robert Gordon told a Senate oversight committee that the percentage of COVID-19 deaths from nursing homes was 23%, but the data was “incomplete” at the time.
Part of the reason, Hertel suggested, is that nursing homes are more familiar with the computer system they are using to report this data.
The House Oversight Committee spent nearly an hour digging into the accuracy of the state’s numbers on nursing home deaths after the Mackinac Center and journalist Charlie LeDuff took to the Freedom of Information Actand legal action to figure out a number.
The folks at Mackinac are skeptical that the self-reporting data is accurate and want the ability to crosscheck the addresses of the deceased against nursing homes on an Excel spreadsheet. They fear that nursing homes are reluctant to be upfront about COVID-19 deaths among their residents because high numbers could chase away future prospective residents.
However, Hertel noted that the nursing homes are required by the Centers for Disease Control and Prevention to supply their COVID-19 death numbers. Failing to do so would put their Medicare certification at risk, which would put their state license at risk.
“They would essentially be closed,” Hertel said.
Part of the issue remains one of semantics and definitions. While the general public refers, generally, to all long-term care homes as “nursing homes,” a nursing home is technically a larger facility where regular medical attention is given.
The intermingling of terms at the committee meeting made it difficult at times to get a clear understanding of what DHHS had and didn’t have and what legislators want and don’t want.
Republican members are interested in learning of the deaths in all long-term care facilities populated by seniors, which can be a harder number to track. If the facilities, themselves aren’t reporting it, the question becomes how a deceased person’s address on a death certificate was filled out.
Is it the deceased’s last residence? Was it the long-term care facility’s address? Was the deceased at a long-term care facility, but spent their last few days at the home of a relative?
Also, if the Legislature wanted all long-term care facilities to report to DHHS their death numbers connected to COVID-19, why not pass a bill asking them to do that?
“We can look at that, but the key is we need the department to get us accurate numbers,” Johnson said.
The quest for numbers comes after the administration’s decision last year to allow COVID-19-positive residents to return to their nursing homes to free up hospital bed space during a critical period early in the pandemic.
Since then, DHHS changed its policies to prevent the chance of infection within a nursing home.
Later in the day, the Michigan Republican Party held a press conference attended by GOP Co-chair Meshawn Maddock, Johnson, Rep. Pat Outman (R-Six Lakes) and Rep. Michele Hoitenga (R-Manton) to highlight the Gov. Gretchen Whitmer administration’s perceived disinterest in being upfront on the true number of COVID-19 deaths from long-term care homes.
Asked why it matters if the percentage of COVID-19 deaths from long-term care homes is 30%, 40% or 50%, Maddock said, “History is watching us . . . If this ever happens again, we’re going to need to be able to look back and determine what we did right and what mistakes we made.”
MRP spokesperson Ted Goodman replied that every life matters and should be counted when remember DHHS allowed COVID-positive patients to return to their congregate care home.
“I’ll just say it. This isn’t a mistake. This a scandal,” he said.
Whiteford’s Mental Health Revamp Gets First Airing
Simplifying how Michigan delivers its mental health administration would improve the service and care patients receive, according to Rep. Mary Whiteford (R-Casco Twp.)
She’s the lead sponsor on a package that would create a Behavioral Health Oversight Council within the Department of Health and Human Services and allow it to contract with an Administrative Services Organization (ASO) that would coordinate behavioral health services.
The bills received their first hearing June 3 in the House Health Policy Committee.
“As chair of the DHHS budget, I have observed the issue of direct care worker wages in the (Community Mental Health) world and come to the conclusion that we are out of focus. Our $3 billion public behavioral services line item is far too administratively tilted,” Whiteford told the Health Policy Committee.
She found several other states use an ASO and the results have been positive.
“They have noticed an increase in quality of care in behavioral health coordination. They are very consumer driven and have found that their administrative savings were available for the increased utilization of services as well, thereby meeting the needs of this vulnerable population as well all of those who are challenged either mild to moderate mental health issues. This is the perfect time for us to address how we manage this $3 billion silo, a perfect time to ensure that the whole person is considered,” Whiteford said.
Michael Brashears, executive director at Community Mental Health of Ottawa County, said the behavioral health council will help DHHS with oversight and prioritization of the multitude of tasks that it has to do in the current system.
“Currently right now, the department has to manage 10 particular managed care contracts through the PIHPs (prepaid inpatient health plans). This will be reduced to one. It also establishes a statewide behavioral crisis system streamlined to ensure that our most vulnerable people in a mental health crisis get the care they need when they need it and assistance in navigating that. In essence, this bill strives to reduce administrative costs,” Brashears said.
The PIHPs then contract with 46 community mental health services across the state, he noted.
“Before the money even touches the consumer or the provider, it must navigate through all of these entities,” Brashears said.
Whiteford estimated that right now, only about 20 cents out of every dollar spent on mental health actually reaches the patient due to the administrative burden.
She estimated, based on what Connecticut saved through its use of an ASO, that Michigan would save $300 million by reducing administrative costs.
Whiteford said the simplified administrative plan would also improve consistency of service for patients and consistency of pay for providers between CMHs. Right now, services offered by the various CMHs across the state are not consistent.
Likewise, she said, simplified administration would address so-called “service deserts,” where some services are not available at all within various regions of the state.
Whiteford also mentioned Senate Majority Leader Mike Shirkey’s (R-Clarklake) plan to put all physical and mental health services for Medicaid recipients under a single program.
Whiteford said she was a supporter of such a plan until a few years ago when she learned an alternative is available.
“What I’m proposing is that our forever children, somebody like my Uncle Al, who will never be able to take care of himself, that they have the opportunity to live their best life and that we are using the funding of our state to do that. We are removing administration and make sure that the money follows the person, follows the people who need it most,” Whiteford said.
Health Policy Chair Bronna Kahle (R-Adrian) said she’ll be taking additional testimony on the package in future committee meetings.
Canadian Nurses May Have Licensing Troubles Absent Bill
Last year, a bill deleting the sunset date for Canadian health professionals to be additionally licensed in Michigan was passed into law.
However, the Michigan Health and Hospital Association (MHA) said there was a drafting error in the legislation, forcing these providers to possibly retake exams they’ve already passed.
Canadian health professionals could apply for reciprocity—after meeting the mandated educational requirements within Canada or by the U.S. for licensure—from 2002 to 2012. The 2020 legislation presented itself as pivotal, reviving the precedent while 1,500 to 2,000 health care workers entered the Detroit area each day at the start of the COVID-19 pandemic.
Some of Michigan’s biggest hospitals—Henry Ford Health System in Detroit, the Detroit Medical Center, Ascension Michigan in Warren—are each around a 20-minute commute to Windsor, Ontario. In a 2011 Canadian survey, “Hospitals” and “Ambulatory health care services” made up more than 26% of the area’s cross-border workers.
In 2016, approximately 300 of the 1,500 nurses at the Henry Ford Health System were Canadian. As of today, the Henry Ford Hospital in Detroit was operating at 80% capacity with 305 adults hospitalized with confirmed cases of COVID-19 in Region 2 South, including the city of Detroit.
“SB 0416 provides the needed technical change to the verb tense, allowing providers who are licensed in Canada, have taken and passed the Medical Council of Canada’s qualifying exams, the proper reciprocity licensing options, which have been allowed since 2002,” said MHA Vice President Adam Carlson.
At the May 26 Senate Health and Human Policy Committee meeting, where the legislation was unanimously adopted, Sen. John Bizon (R-Battle Creek) brought up that often when reciprocity is discussed, “it’s kind of an even exchange—you accept ours, we accept yours.”
“That isn’t exactly what we’re talking about here, though. Is there going to be an effort moving forward that we encourage that sort of reciprocity as we do for many other professions?” Bizon asked.
Carlson said it’s a little more complicated for international situations of reciprocity, but the MHA would be happy to have more conversations on the topic.
The MHA Vice President also said the organization supported the expansion of reciprocity licensing options to manage the state’s shortage of health professionals, “especially in rural and underserved areas.”
“Last year, as was mentioned, I introduced SB 1021, it became (Public Act) 329. According to my notes here, that reinstated the ability for licensed Canadian health professionals to be licensed and-or certified in the state of Michigan,” said sponsor Sen. Wayne Schmidt (R-Traverse City).
He said SB 0416, accompanied by a substitute he created with Bizon, adds a sunset date of after a year when the rules are promulgated “to make sure that it works properly and that we’ve covered any other ground.”
“And then we can go from there and maybe extend it after that if everything works properly,” Schmidt said. “That’s basically it.”
Local Public Health Departments Share Their COVID Money Wishlist
Among the $12 billion more money the state is awash in due to the federal stimulus is a special pot for state public health response and infrastructure recovery.
The Michigan Association for Local Public Health was approached about what that money could be spent on. Executive Director Norm Hess had some ideas.
Speaking on the MIRS Monday podcast, Hess said the top item on the list is a stand-alone, Type 1 state public health department that is empowered to make decisions quickly and accelerate coordinated responses.
He also said the 45 public health departments need to be able to quickly share data so a shared computer network would be helpful.
Hess also proposed a septic system replacement program to assist homeowners with the cost of replacing failing system, which he said is an expensive endeavor.
Unvaccinated People Could Spawn New COVID Variant
Those who choose not to be vaccinated from COVID-19 may become incubators for a new strand of variant that the vaccine doesn’t protect against, according to the executive director of the Michigan Association for Local Public Health.
Hess also told MIRS that’s been his reaction to those who tell him they’re not getting vaccinated out of concerns for the experimental nature of the COVID-19 vaccine, among any other reasons.
“As long as viruses are being transmitted among human populations, there’s always the risk of additional variants. This has been a disease that has surprised us. So, I get that there’s a thought, ‘It’s my choice. I’ll get vaccinated. And, if I don’t, it’s nobody’s problem but my own,’” Hess said.
“However, as long as people continue to be contagious, it could increase the risk of a new variant that may or may not be controlled by the current vaccine,” Hess said. “That is the thought behind this need to get to herd immunity. If part of the herd is not immunized, there’s always risk that the virus will mutate, circulate and cause problems.”
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Update to the ALJ Backlog for Medicare Appeals
By EMMA TRIVAX
Dickinson Wright
For the majority of the 2010s, the Medicare appeals process had become extremely backlogged. The Office of Medicare Hearings and Appeals (“OMHA”) is in charge of administering the Administrative Law Judge (“ALJ”) hearing program for appeals arising from Medicare claims and disputes. Pursuant to 42 U.S.C. § 1395ff(d)(1)(A), an ALJ is statutorily required to provide an appellant a hearing within ninety (90) days of the hearing being requested. However, due to a large backlog of appeals, appellants would end up waiting three (3) to five (5) years for that hearing. This caused much concern because disputed payments were being recouped from providers and suppliers during that waiting period, yet they were being deprived of defending themselves in a timely matter. Having Medicare payments recouped for 90 days is often not detrimental for provider and supplier businesses. However, being recouped for 3 to 5 years can have a significantly detrimental impact to provider and supplier businesses.
Due to the backlog, a slew of litigation ensued. The most common claim was one for a temporary restraining order (“TRO”) and preliminary injunction against the Department of Health and Human Services (“HHS”), ordering them to stay recoupments until the ALJ hearing occurred. Providers and suppliers would claim irreparable injury because they would be forced to close their businesses due to bankruptcy from the prolonged recoupment period. Additionally, to support a TRO or preliminary injunction, aggrieved parties would have to show a likelihood of success on the merits of their underlying claim. To demonstrate a likelihood of success, these parties would usually allege a violation of procedural due process or an ultra vires violation. Federal Circuit Courts varied on their granting or denying of these claims, but all agreed that HHS must reduce the backlog to reduce further harm to providers and suppliers.
Because ALJs were not keeping up with that statutorily mandated 90-day period, in 2018, the American Hospital Association (“AHA”) brought suit against HHS. The D.C. Federal District Court ruled in favor of the AHA and required HHS to completely remove the backlog by 2022 so that ALJs would comply with the statutory timing requirements. Specifically, the timeline for reducing the backlog is: a 19% reduction by the end of Fiscal Year (“FY”) 2019; a 49% reduction by the end of FY 2020; a 75% reduction by the end of FY 2021; and elimination of the backlog by the end of FY 2022. To ensure that HHS is making active efforts to reduce the backlog, the court also required the Secretary of HHS to file quarterly status reports until the end of 2022.
As of the most recent HHS status report, released on March 26, 2021, a total of 131,961 appeals remain pending at OMHA, which is a reduction of just over 69% of the backlog. This was just the update from the first quarter of 2021, and HHS is required to have a 75% reduction by the end of FY 2021, which appears to be an achievable goal based on the first quarter’s numbers.
Looking back, there are five likely reasons for the extreme backlog of appeals over the last 10 years: (1) more beneficiaries enrolling in Medicare; (2) the roll-out of new Medicare coverage and payment rules; (3) increased state Medicaid appeals; (4) implementation of the national Medicare Fee-For-Service program; and (5) a national shortage of ALJs.
The successful reduction of the backlog is, in part, due to CMS implementing and enforcing many alternatives to the appeals process which removed some cases entirely from the ALJ hearing process. The alternatives include the Settlement Conference Facilitation (“SCF”) program and the Targeted Probe and Educate (“TPE”) audits. SCF was originally implemented in July of 2014, but was significantly expanded on June 15, 2018. TPE initially was rolled out as a pilot program in a few states, but was implemented nationwide on October 1, 2017. The SCF program gives Medicare appellants the right to negotiate a lump-sum settlement with CMS in a one-day facilitation, rather than going through the whole appeals process. TPE seeks to prevent appeals on the front-end by having Medicare Administrative Contractors identify billing errors and helping the provider or supplier correct these errors before an audit is necessary.
Furthermore, the successful reduction was also a result of a $182.3 million increase in funding by Congress as of March 23, 2018. This funding enabled OMHA’s hiring of an additional 70 ALJs across the country. OMHA anticipates that this increase in ALJs will allow OMHA to adjudicate over 300,000 appeals annually. This is a stark contrast compared to the amount of appeals OMHA had the capacity to adjudicate before backlog reduction efforts commenced, which was approximately 75,000 appeals annually.
The increased ALJ capacity along with the new alternatives to the appeals process, create a double-edged sword for healthcare providers and suppliers. The backlog prompted CMS to restrict contractors and force them to slow down on Medicare audits. With the backlog coming to an end, these restrictions will likely be loosened, and providers and suppliers could see a substantial increase in Medicare audits. Implementation of an effective compliance program inclusive of an internal audit policy is more crucial than ever.
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Disciplinary Action Against Providers Decreases During Pandemic
By JESSE A. MARKOS, ESQ.
Wachler & Associates, P.C
Disciplinary actions against healthcare providers have decreased significantly during the past year according to figures provided by the U.S. Department of Health and Human Services. This development may be evidence of a general easing of heavy-handed enforcement in state licensing disciplinary proceedings and hospital professional review actions based on technical violations during the Covid-19 pandemic and the result of an increased appreciation for providers serving on the front lines of the crises.
Prior to the outbreak of COVID-19, the United States was already facing a shortage of healthcare providers. A report by the Association of American Medical Colleges projected a shortage of between 46,900 and 121,900 physicians by 2032. Moreover, the healthcare system will also likely face a shortage of tens of thousands, if not hundreds of thousands, of other healthcare providers such as nurse practitioners and registered nurses.
The outbreak of COVID-19 has stretched the staffing resources of the healthcare system to unprecedented levels. Adding to the demand for already scarce providers, hospitals have scrambled to find additional frontline workers like emergency medicine physicians and nurses. During this period of mounting shortage, disciplinary actions against physicians have dropped significantly according to figures published by the U.S. Department of Health and Human Services.
By way of background, the Department of Health and Human Services operates the National Practitioner Data Bank. This Data Bank is an alert system that collects and discloses certain adverse information about physicians and other health care providers such as state licensing disciplinary actions and hospital staff privileging corrective action.
According to the figures gathered by the Data Bank, disciplinary actions against doctors during the Covid-19 pandemic were down approximately 15 percent from the previous year. Similarly, the total number of clinical privileges limited or suspended during the Covid-19 pandemic were down around 9 percent.
This development may reflect an overall easing of heavy-handed enforcement in disciplinary matters based on technical violations at a time when the shortage of providers is most critical. An adverse report to the Data Bank can significantly impact a health care provider’s reputation and career. State licensing authorities, hospitals and other health care entities, and professional societies search the Data Bank when investigating qualifications. A response that contains an adverse report can act as a permanent blackmark and result in a denial of credentialing, loss or limitation of hospital privileges, loss or limitation of licensure, exclusion from participation in health plans, and increases in premiums or exclusion from professional liability insurance. Although disciplinary proceedings have declined during this period of increased appreciation for providers serving on the front lines of the crises, the total number of adverse actions remains significant. For additional information or assistance regarding state licensing, hospital staff privileging, or any other health care related issue, please contact Jesse A. Markos, Esq., of Wachler & Associates, P.C., at (248) 544-0888.
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Visioning The Future: It’s Time To Address Public Health Crises
By EWA MATUSZEWSKI
My mind keeps going to the word community when I reflect on the past year and a half. Initially, as the pandemic broke out, many of us were in a community of one, two or three, confined to our homes for all but the most essential trips. Then, for those in the healthcare community, there was a call to action, an immediate need to get our own acts together from a public health perspective to treat those afflicted with COVID-19, those who had pressing medical needs not related to the pandemic, and others whose emotional well-being was overwhelmed by the stress the virus added to already fragile lives. Ultimately, we figured it out; with virtual care, drive- through clinics, and in-person care, as necessary. (Indulge me here for a shout out to our organization’s Master of Public Health team members, who provided much of the direction for the pop-up clinics.)
The pandemic is not over in the United States, but it’s easing. Perhaps we can all take a bit of credit for that, whatever our roles – even if just to follow the recommended health guidelines out of concern for ourselves, our families, and our neighbors. For most, especially as we head into summer, a well-deserved rest and temporary break from the hectic pace is in order.
But when that time-off is done, however brief it may be, it’s time for us to be visioning the future and focus on the next public health crisis that will impact our community. We need not look far, as many have been with us, either overshadowed by COVID or percolating just below crisis level so as not to be in the public eye.
One issue that has definitely caught my attention of late is the declining birthrate in the U.S. (not to mention globally) as noted by the 2020 Census findings. It should serve as a catalyst to turn our attention to the fetal maternal health crisis that exists in Detroit. In Michigan, the maternal mortality rate for Black women is two times higher than for White women (Michigan Department of Health & Human Services [MDHHS], 2020), and Black and Native American infant mortality rates are three times higher than White rates (MDHHS, n.d.). In 2019, the city of Detroit reported 11 deaths for every 1,000 live births, compared to 16.7 deaths for every 1,000 live births in 2018. An improvement to be sure, but we can still do better. I believe it’s an issue we can tackle together by incorporating some of the many innovative tactics we adopted during the pandemic to keep our communities safe, healthy, and vaccinated.
For example, I’ve written of our organization’s experience with pop-up clinics, notably in the Asian and Albanian community, but also in community fair settings and now, middle schools and high schools. Some pop-ups were in buildings, others in parking lots, while still others, a hybrid of both. But think about it; we did not need any additional bricks and mortar to vaccinate our local communities – or the nation as a whole. We used existing buildings, human networks, community resources and community engagement as the foundations of our outreach efforts. Why can’t we do the same for fetal maternal health? What’s stopping us from setting up a pop-up health information clinic in the parking lot of a well populated residential community? Or on a temporary closed street on the near east side? Can the barbershops help reach future fathers who want to keep their partner and child healthy? It seems that some of these proven pandemic solutions can be adapted to address the fetal maternal health crisis and other crises.
Have you been thinking about this too? I’d love to get your input on how we can apply lessons learned in the pandemic to other public health issues. Our community depends on it.
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Labor Department Issues Emergency Rules to Protect Health Care Workers From COVID
By CHRISTINA JEWETT
Labor Department officials on June 10 announced a temporary emergency standard to protect health care workers, saying they face “grave danger” in the workplace from the ongoing coronavirus pandemic.
The new standard would require employers to remove workers who have COVID-19 from the workplace, notify workers of COVID exposure at work and strengthen requirements for employers to report worker deaths or hospitalizations to the Occupational Safety and Health Administration.
“These are the workers who continue to go into work day in and day out to take care of us, to save our lives,” said Jim Frederick, acting assistant secretary of Labor for occupational safety and health. “And we must make sure we do everything in our power to return the favor to protect them.”
The new rules are set to take effect immediately after publication in the Federal Register and are expected to affect about 10.3 million health care workers nationwide.
The government’s statement of reasons for the new rules cites the work of KHN and The Guardian in tallying more than 3,600 health care worker COVID deaths through April 8. Journalists documented far more deaths than the limited count by the Centers for Disease Control and Prevention, which through May tallied 1,611 deaths on case-reporting forms that were often incomplete.
The Lost on the Frontline project documented early calls for better respiratory protection for health care workers than loose-fitting face masks, noted serious complaints to OSHA from hospital workers that went unaddressed and revealed repeated employer failures to report dozens of worker deaths. It also found that health care employers were often remiss in notifying workers about exposure to the coronavirus on the job.
The new standard would address some of those problems.
The rules require workers to wear N95 or elastomeric respirators when in contact with people with either suspected or confirmed COVID. They strengthen employer record-keeping requirements, saying employers must document all worker COVID cases (regardless of whether they were deemed work-related) and report work-related deaths even if they occur more than 30 days after exposure.
Until now, employers were required to report a hospitalization only if it came within 24 hours of a workplace exposure. Now all work-related COVID hospitalizations must be reported. The rules also mandate notification about exposure to a sick colleague, patient or customer if the worker was not wearing a respirator.
There is a lot to like about the new rule ― except for the timing, according to Barbara Rosen, vice president of the Health Professionals and Allied Employees union in New Jersey.
“It’s a little late,” she said. “If we had had this in place at the beginning, it would have saved a lot of lives and a lot of suffering that has gone on with health care workers and probably patients in hospitals because of the spread.”
She said she was pleased with the requirement that workers be paid when they isolate with COVID and that employers formulate a detailed COVID plan with the input of non-managers.
The day after he took office, President Joe Biden issued an executive order calling on OSHA to “take swift action to reduce the risk that workers may contract COVID-19 in the workplace.” The rule has been criticized for coming late — about which Labor Department officials said on a press call that such standards typically take years, not months, to formulate. It has also been derided for failing to enact requirements on employers outside of health care.
“OSHA’s failure to issue a COVID-specific standard in other high-risk industries, like meat and poultry processing, corrections, homeless shelters and retail establishments is disappointing,” according to a statement from David Michaels, a former OSHA administrator and professor with the George Washington University School of Public Health. “If exposure is not controlled in these workplaces, they will continue to be important drivers of infections.”
The new rule also cites 67,000 worker complaints during the pandemic, with “more complaints about healthcare settings than any other industry.” The rule would protect workers from retaliation for staying home when sick with COVID, alerting their employer about a COVID hazard or exercising their rights under the emergency rule.
Through March 7, about half of health care workers said they had received at least their first dose of a COVID vaccine, according to a KFF-Washington Post poll. About one-third of those polled said they were unsure if they would get a vaccine. The issue has been controversial, especially in Houston, where workers at one hospital staged a protest over their employer’s vaccine mandate.
The new rules exempt some office-based health care workplaces where all staff members are vaccinated and measures are taken to screen people with potential illness. The rule summary estimates the measures will prevent 776 deaths and 295,000 infections.
The new rule also says it will “enable OSHA to issue more meaningful penalties for willful or egregious violations, thus facilitating better enforcement and more effective deterrence against employers who intentionally disregard … employee safety.”
Kristin Carbone said the measure came too late for her mother, Barbara Birchenough, 65, a New Jersey hospital nurse who’d asked family members to gather gardening gloves and trash bags to serve as makeshift personal protective equipment before she fell ill and later died on April 15, 2020. Still, she said, it’s a necessary step.
“If there is a silver lining,” she said, “I’m glad that out of this tragedy come positives for the people that are left behind.”
Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente. http://www.kaiserhealthnews.com
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Revolutionary Cancer Therapy Could Make Michigan Hub For Treatment
New diagnostic technology known as “molecular imaging” and a new treatment called “molecular targeted radiation therapy” is expected to “revolutionize treatment of cancer,” according to Sen. Winnie Brinks (D-Grand Rapids).
Anthony Chang, founder and CEO of BAMF Health in Grand Rapids, explained the procedure to the House Health Policy Committee recently by showing them a scan of a prostate cancer patient’s body riddled with tumors.
“When we see a patient like this with a hundred tumors in their body, usually this is a death sentence,” Chang said. “We know this type of patient. The only option is chemotherapy with a very strong side effect and eventually they will almost always, almost guaranteed, pass to drug resistance and go to hospice care and die.
“But this new technology called molecular targeted radiation therapy allows us to efficiently deliver a lethal radiation dose to every single tumor we find in the patient’s body without causing any side effect or major side effect. So we can achieve complete remission over here,” he said.
Already under construction is the Doug Meijer Medical Innovation Building in Grand Rapids where BAMF will use the new techniques to treat cancer patients.
It is scheduled to open in February 2022, if it can get a certificate of need (CON) from the state for a full body positron emission tomography (PET) scanner in time.
Brinks explained that BAMF’s application for a CON was delayed by about nine months because of the COVID pandemic, so now the earliest the CON Commission could issue that certificate would be November.
“With the current lag time of 10 months to purchase, build, deliver and set up these machines, their planned opening in February of 2022 is not possible with this delay,” Brinks said.
Her SB 0440 would solve the problem by creating a pilot program within the CON process, running concurrently with the application already filed. BAMF would still need to complete the process it has already started, but the pilot program will allow it to move forward earlier and keep to its original timeline, Brinks explained.
“I believe that the CON Commission plays a powerful role in patient safety and in keeping health care costs down. The intent of this bill is in no way to chip away at the commission’s ability to do its job,” Brinks said.
House Health Policy voted 16-0 with three passes to report SB 0440 . The bill was expected to have been taken up on the House floor.
In its quest to get SB 0440 approved, BAMF Health is being represented by former House Speaker Tom Leonard, now with the Plunkett Cooney law firm.
Chang said he intends to build 10 clinics strategically located across the country to provide the new treatment to patients.
“With this facility starting from Michigan, not only are we going to create 200 or more jobs in west Michigan, but it will make Michigan a hub and a destination of this cutting edge technology,” Chang told the committee. “We’re building a brand new technology industry over here and we’ll attract doctors to Grand Rapids to train and patients to Michigan to receive this kind of treatment. And we are going to attract a lot of companies to Michigan to boost this whole industry.”
Chang assured the committee the technology “is not a fantasy,” but he said the only other clinic using the technology now is located in Germany.
A cancer scientist, Chang said he has dedicated the past 15 to 20 years of his life to bring this technology to patients.
“The hardest thing for me is not a patient dying if there is nothing we can do. The hardest thing for me is patients are dying every day, I know there is something we can do,” he said.
Chang explained the process involves the use of radioactive drugs, also known as tracers.
“This drug is designed to look for a specific disease, in this case prostate cancer and prostate cancer only,” Chang said. “So we inject this radioactive drug into the patient, it will circulate over the body of the patient. Once it finds the prostate cancer, it will bind to it and start sending out a signal. At this moment, we put the patient under a PET scanner to locate where the tumors are and know how many tumors are there and also know what type of cancer. It is done without a need for invasive biopsy procedures.”
Once the diagnostic isotope identifies the tumors, a therapeutic isotope is injected which releases a large amount of radiation where the tumors are but with a very short range, as small as two millimeters in size.
“That is how we can burn tumors out on-site without hurting surrounding tissues, meaning without causing severe side effects. That is how we use this new technology to tackle the cancer more efficiently than any existing method,” Chang said.
BAMF is starting with prostate cancer. Chang said there are 3 million prostate cancer patients in the U.S. and that prostate cancer is the most common form of cancer for men.
But using the same concept, BAMF will bring out additional drugs to be used to treat breast cancer, colon cancer, brain cancer, pancreatic cancer and other cancers, “saving a lot of patients’ lives and bringing them back to their normal life,” Chang said.
The technique also works on blood-borne cancers, he said.
The same diagnostic method may be used for early detection of Alzheimer’s, Parkinson’s and other neurodegenerative diseases as well as mental health disorders like post-traumatic stress disorder, chronic traumatic encephalopathy, and depression. It may also be used to diagnose cardiac disease, Chang said.
He explained the Grand Rapids clinic will include facilities needed to manufacture the radioactive drugs on-site because they decay rapidly.
The half-life for these radioactive drugs ranges from 12 hours to two minutes. A drug with a half-life of 12 hours could be shipped to a clinic out of state, Chang said, but for a drug with a half-life of two minutes, the patient has to be in BAMF’s clinic when the drug is manufactured.
That is also the reason a PET scanner has to be located in the clinic, he said. He explained the PET scanner for which they need the CON will be one that is 40 times more sensitive than other PET scanners on the market. That means the time needed for a full-body scan will be shortened from 40 minutes to one minute, Chang said.
Chad Bassett, COO of BAMF Health, said he expects the Grand Rapids clinic will be able to treat 8,000 patients per year when it is running at full capacity.
Construction hasn’t started on the other clinics yet but the plan is for them to have a similar capacity, Chang said. Later clinics may be larger as they learn more about how to administer the therapy and because “the need is so great,” Chang said.
Brinks said she recognizes that some lawmakers disagree with the need for the state’s CON process.
“Regardless of the delicate political terrain that we have had to walk through to achieve this resolution, this health care approach will revolutionize treatment for cancer starting immediately with potential for promising interventions for Alzheimer’s, Parkinson’s, mental health disorders and more,” Brinks said. “I felt I had to do all in my power to help them get over this finish line, not just for Grand Rapidians but for all Michiganders and many people far beyond our borders.”
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BAMF Health in Grand Rapids is one step closer to getting the certificate of need (CON) it needs for equipment to open a clinic that will “revolutionize” cancer treatment as a result of House action June 10.
The House voted 82-27 on SB 0440, which will create a new program within the CON process so BAMF can get its certificate for a positron emission tomography (PET) scanner sooner.
The clinic, already under construction, will use radioactive drugs to target tumors without damaging surrounding tissues or causing side effects, according to BAMF CEO Anthony Chang.
BAMF has applied for a CON, but because of delays caused by COVID-19, isn’t likely to receive it until November. That’s not enough time to order, build and set up the scanner before the clinic’s scheduled opening in February 2022, according to SB 0440 sponsor Sen. Winnie Brinks (D-Grand Rapids).
Her bill would allow BAMF to get the certificate sooner.
Among those voting no was Rep. Andrea Schroeder (R-Independence Twp.), herself a cancer survivor.
She said she’s never been a fan of the CON process, but since BAMF has already applied and is halfway through the process, she’d prefer to let the process play out.
Additionally, Schroeder said, she received information today that the CON commission is expected to take up the issue next week and BAMF could get final approval as early as September.
Lynn Sutfin, spokesperson for the Department of Health and Human Services (DHHS), explained that the commission sets the standards and that DHHS then reviews and makes determinations on CON applications.
On June 17, the CON commission will review standards for PET scanners and if the commission approves the proposed standards, BAMF can apply for CON approval, Sutfin said.
The process is that when the commission makes a proposed decision, a public hearing is held and the governor and Legislature have 45 days to review it, she explained.
If the CON Commission took action in its June meeting and held a public hearing in July or August, the commission could take final action in September.
After that, the standards would be submitted to the Legislature and governor for 45 days. So the commission could make a final decision in September meeting and the standards could go into effect after 45 days, which would be in November, Sutfin said.
This story courtesy of MIRS, a Lansing-based news and information service.