NASH Seeks Help From End-of-Year Legislation

Eliminate Medicaid disproportionate share hospital cuts (Medicaid DSH), appropriate additional resources for the Provider Relief Fund, and extend the current suspension of the two percent sequestration of Medicare spending, the National Alliance of Safety-Net Hospitals asked members of Congress in a letter NASH sent yesterday.

The request comes as Congress returns to Washington to take up the funding of the federal government at a time when authorization for spending under a continuing resolution ends on December 11.  In addition to addressing federal funding, Congress also may consider COVID-19 legislation.

Learn more from NASH’s letter to Congress.

Off-Again, On-Again Public Charge Rule is Off Again

A federal rule that would have limited immigration to the U.S. for people who might at some point become dependent on public aid programs has been put on hold again by a federal judge.

Implementation of the rule, delayed by several courts and then authorized by the U.S. Supreme Court until the merits of challenges could be heard, was delayed again by a federal court, which said the rule contained “numerous unexplained flaws” that made it “arbitrary and capricious.”

Health care advocates feared the rule would discourage some immigrants to whom the rule does not even apply from seeking to participate in certain public aid programs and even encourage some to whom the rule does not apply to disenroll from the public aid programs, such as Medicaid, in which they are already legally enrolled.  A recent study published in the journal Health Affairs found that the parents of a projected 260,000 children have disenrolled their children from Medicaid or the Children’s Health Insurance Program (CHIP) because of their fear of the rule’s implications for their families.

NASH has conveyed its opposition to the public charge rule on a number of occasions, including in this 2019 position statement.

Learn more about the rule and this latest court decision in the New York Times article “Trump’s ‘Public Charge’ Immigration Rule Is Vacated by Federal Judge

Coronavirus Update for Wednesday, October 14

The following is the latest COVID-19 information from the federal government as of 2:30 p.m. on Wednesday, October 14.

Reminder:  HHS Webinar on Phase 3 General Distributions

  • HHS will hold a webcast on Thursday, October 15 at 3:00 (eastern) to give providers more information about the Phase 3 general distribution.  Go here to register and submit questions. NASH strongly recommends that any provider considering applying for a Phase 3 distribution view the webinar.  The application deadline for Phase 3 distributions is November 6.

NASH Advocacy

  • NASH has written to members of Congress urging them to prevail on HHS Secretary Alex Azar to restore his department’s June 2020 instructions for how hospitals should calculate their COVID-19-related revenue losses for purposes of receiving CARES Act Provider Relief Fund payments. Revised instructions, issued last month, include a new way of calculating hospital revenue losses that would force many private safety-net hospitals, and others, to return much of their Provider Relief Fund money.  Go here to see NASH’s request of Congress.

Provider Relief Fund

  • The Provider Relief Fund FAQ has been updated with one new question on page 6 that is marked “Added 10/9/2020.” The new question isCan providers use Provider Relief Fund distributions to repay payments made under the CMS Accelerated and Advance Payment (AAP) Program?” and the answer is “No, this is not a permissible use of Provider Relief Fund payments.”

CMS COVID-19 Stakeholder Calls

CMS hosts recurring stakeholder engagement sessions to share information related to its response to COVID-19.  These sessions are open to members of the health care community and are intended to provide updates, share best practices among peers, and offer attendees an opportunity to ask questions of CMS and other subject matter experts.

Office Hours

Office Hour Calls provide an opportunity for hospitals, health systems, and providers to ask questions of agency officials regarding CMS’s temporary actions that empower local hospitals and health care systems to increase hospital capacity, expand the health care workforce, and promote telehealth in Medicare.

Tuesday, October 27 at 5:00  (eastern) – dial-in and other information to be announced later

Nursing Homes

Wednesday, October 28 at 4:30 (eastern) – dial-in and other information to be announced later.

Department of Health and Human Services

Food and Drug Administration

Centers for Disease Control and Prevention

Congressional Research Service

  • The Congressional Research Service has published “Medicaid Telehealth Policies in Response to COVID-19,” a brief paper that offers an “…overview of telehealth actions in response to the Coronavirus Disease 2019 (COVID-19) Public Health Emergency (PHE).  It discusses how states leveraged existing flexibilities and PHE-specific federal authorities to increase the number of services, provider types, and other telehealth coverage options under Medicaid.”


NASH Asks Congress to Help Preserve Federal COVID-19 Aid for Hospitals

Protect the COVID-19 aid the federal government has given to private safety-net hospitals, NASH has asked in a letter to Congress.

The letter refers to changes in how the Department of Health and Human Services wants hospitals to calculate the revenue they lost as a result of COVID-19 – the justification in part for the Provider Relief Fund payments hospitals have received through the CARES Act.  In June, HHS told hospitals how to make that calculation but late last month it changed those directions in ways that could force many private safety-net hospitals and others to return some or even much of the federal aid they received.

In the letter, NASH asks members of Congress to sign a bipartisan letter asking HHS Secretary Alex Azar to restore the June instructions for calculating COVID-19-related lost hospital revenue.

Go here to read NASH’s message to Congress.


Congress Gives Hospitals Medicaid DSH Relief

Medicaid DSH allocations to states will not be reduced right away thanks to a new continuing resolution to fund the federal government through December 11.

The Medicare disproportionate share allocation cuts to the states, mandated by the Affordable Care Act but delayed by Congress several times, were delayed again earlier this year but scheduled to take effect on November 11.  With the latest continuing resolution, the cuts will be delayed yet another month.

Learn more about the delay of Medicaid DSH cuts and other aspects of the continuing resolution that affect hospitals in the Healthcare Dive article “Providers win Medicare loan extension, DSH relief but lose other asks in stop-gap spending law.”

NASH Submits Comments on Proposed Medicare Outpatient Regulation

NASH has submitted formal comments to the Centers for Medicare & Medicaid Services in response to that agency’s proposed 2021 Medicare outpatient prospective payment system rule.

That rule describes how CMS proposes paying hospitals for Medicare-covered fee-for-service outpatient care in 2021.

Writing on behalf of private safety-net hospitals, NASH addressed the following aspects of the proposed rule:

  • Proposed rate increase.   NASH endorsed CMS’s proposal to raise Medicare fee-for-service rates for outpatient care.
  • The 340B program.  NASH expressed strong opposition to CMS’s proposal to reduce  reimbursement for prescription drugs to 340B-eligible hospitals.
  • Phase-out of the inpatient-only services list.  NASH asked CMS not to phase out the inpatient-only services list.
  • Changes in the level of supervision for selected outpatient therapeutic services.  NASH conveyed its support for proposed reductions in such supervision.
  • The physician-owned hospital exception.  NASH opposed CMS’s proposal to ease the current limit on the expansion of high-Medicaid physician-owned hospitals.

Learn more about NASH’s reasoning behind each of these positions in its letter to CMS on the proposed 2021 Medicare outpatient prospective payment system regulation.

Coronavirus Update for Thursday, October 1

The following is the latest COVID-19 information from the federal government as 2:30 p.m. on Thursday, October 1.

NASH Advocacy

  • NASH has written to Health and Human Services Secretary Alex Azar asking HHS to abandon its new methodology for calculating hospitals’ COVID-19-related lost revenue. The new methodology, introduced recently, would redefine lost revenue as change in net operating income from 2019 to 2020.  A previous methodology gave hospitals greater latitude for calculating lost revenue.  In its letter, NASH explains that such a change would be especially disadvantageous to private safety-net hospitals because many of those hospitals have relatively modest resources and were forced to take sometimes dramatic steps to reduce their costs during the pandemic.  Under the new definition, these hospitals would be required to return much of the Provider Relief Fund money to the federal government.

Provider Relief Fund

  • HHS announced the planned distribution of $20 billion in new funding for providers on the front lines of the COVID-19 pandemic.  Under this Phase 3 General Distribution allocation, providers that have already received Provider Relief Fund payments will be invited to apply for additional funding that considers financial losses and increased expenses experienced due to COVID-19.  Previously ineligible providers, such as those that began practicing in 2020, will also be invited to apply, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic will also be eligible for relief payments.
  • This new distribution should be especially helpful for providers that have received minimum or no targeted relief, such as safety-net, high-impact, or rural distributions.
  • Providers can begin applying for funds on Monday, October 5, 2020 and the application deadline is November 6.
  • According to HHS’s news release,
  1. All provider submissions will be reviewed to confirm they have received a Provider Relief Fund payment equal to approximately 2 percent of patient care revenue from prior general distributions. Applicants that have not yet received Relief Fund payments of 2 percent of patient revenue will receive a payment that, when combined with prior payments (if any), equals 2 percent of patient care revenue.
  2. With the remaining balance of the $20 billion budget, HRSA will then calculate an equitable add-on payment that considers the following:
    • A provider’s change in operating revenues from patient care.
    • A provider’s change in operating expenses from patient care, including expenses incurred related to coronavirus.
    • Payments already received through prior Provider Relief Fund distributions.

Go here to learn more about the distribution.

Department of Health and Human Services

Centers for Medicare & Medicaid Services

  • Congress has passed, and the president has now signed, a continuing resolution to fund the federal government through December 11.  The resolution includes a provision that would change the terms under which providers must repay federal CARES Act money they received through the Medicare Accelerated and Advance Payment program, which is administered by CMS.  Now, recoupment will begin only a year after providers received their loan and recoupment is reduced from 100 percent to 25 percent during the first 11 months of repayment and 50 percent for the six following months, with hospitals now having 29 months to repay their loans in full before they would need to begin paying interest.  That interest rate, too, is lowered under the continuing resolution from 9.6 percent to 4.0 percent.
  • CMS has updated its compendium of temporary waivers and flexibilities for teaching hospitals, teaching physicians, and medical residents during the COVID-19 pandemic.  A new flexibility, on page 2 of the document, explains that instead of requiring that new Medicare GME affiliation agreements be submitted to CMS and MACs by July 1, 2020 for the academic year starting July 1, 2020 and amendments to Medicare GME affiliation agreements be submitted to CMS and the MACs by June 30, 2020 for the academic year ending June 30, 2020, CMS is permitting hospitals to submit new and/or amended Medicare GME affiliation agreements as applicable to CMS and the MACs by January 1, 2021.
  • CMS has updated its COVID-19 testing methodology for nursing homes by revising the methodology it employs to determine the rate of COVID-19 positivity in counties across the country.
  • CMS has published guidance addressing the emergency preparedness testing exercise requirements for COVID-19.  CMS regulations for emergency preparedness require specific testing exercises to validate facilities’ emergency programs.

Food and Drug Administration

National Institutes of Health

Federal Communications Commission

Back Off 340B Cuts, HHS Tells Drug Company

Eli Lilly and Company is being presumptuous in assuming that the federal government will approve its plan to cease providing some federally mandated prescription drug discounts under the section 340B prescription drug discount program and does so at its own peril, the U.S. Department of Health and Human Services warned the company in a strongly worded letter.

Without addressing the merits of Eli Lilly’s request, HHS found the manner in which the company sought to force the federal government’s hand on the matter to be unacceptable.  HHS also questioned the timing of the company’s request in its recent letter, writing that

…we believe the timing of your pricing changes is, at the very least, insensitive to the recent state of the economy.  Although the economy is rebounding at a record rate, the unemployment and under-employment rates are still temporarily higher than at the beginning of the year due to COVID-19.  Many Americans and many small businesses have had difficulty making ends meet.  Lilly, on the other hand, seems to be enjoying an outstanding year.

The HHS letter also observes that

…during this same period, most health care providers, many of which are covered entities under section 340B, were struggling financially and requiring federal assistance from the Provider Relief Fund established by the CARES Act.  Many continue to struggle and depend on emergency taxpayer assistance.  It is against this backdrop that you are effectively increasing the price of 10 mg and 20 mg Cialis by more than 500,000 percent and have done the same for other drugs in your portfolio.

The 340B program, which enables hospitals that serve especially large numbers of low-income patients to purchase prescription drugs at a discount to dispense to such patients on an outpatient basis, has long been a vital tool in the ability of private safety-net hospitals to serve their community.  NASH has long supported the program, doing so most recently in a letter earlier this month to members of Congress.

The HHS letter to Eli Lilly and Company – one of five companies attempting to redefine 340B requirements – concludes with a warning that should the company proceed with its plan, doing so could result in legal action “…in the event that Lilly knowingly violates a material condition of the program that results in over-charges to grantees and contractors.”

Go here to see the HHS letter to Eli Lilly and Company.

MFAR is Dead

At least for now.

The controversial Medicaid Fiscal Accountability Regulation, slated for implementation this fall over the objections of many health care stakeholders, will not move forward at this time.

In a tweet earlier this week, Centers for Medicare & Medicaid Services Administrator Seema Verma wrote that

We’ve listened closely to concerns that have been raised by our state and provider partners about potential unintended consequences of the proposed rule, which require further study.  Therefore, CMS is withdrawing the rule from the regulatory agenda.

If implemented, opponents maintained, the regulation would have:

  • Deprived states of important, established policy-making prerogatives.
  • Created major new administrative burdens for state governments and hospitals.
  • Inappropriately regulated financing of the state share of Medicaid spending.
  • Introduced new, unspecified standards for state Medicaid programs.

While CMS maintained that MFAR would have enhanced the transparency of state Medicaid programs, the rule’s opponents maintained that it could lead to a major reduction of resources for serving the Medicaid population.

NASH was among those opponents, arguing that the regulation could have hurt private safety-net hospitals and others that serve low-income communities by inappropriately regulating how states can finance their Medicaid programs.  CMS proposed the rule last November and  submitted formal comments expressing its opposition in January and endorsed legislation to prohibit the rule’s implementation in July.

It is worth noting that in “withdrawing the rule from the regulatory agenda,” Verma did not preclude the possibility of reintroducing MFAR at some point in the future.

Learn more from article “Trump administration backing off Medicaid rule that states warned would lead to cuts” in the online publication The Hill.


Eliminate Medicaid DSH Cut, NASH Asks Congress

A Continuing Resolution to fund the federal government in FY 2021 should eliminate a cut in Medicaid disproportionate share (Medicaid DSH) allotments to the states, the National Alliance of Safety-Net Hospitals has written in a letter to congressional leaders.

The cut was mandated by the 2010 Affordable Care Act but has never been implemented.

In its letter to congressional leaders, NASH wrote that

The Medicaid DSH cut was predicated on the expectation that the Affordable Care Act would greatly reduce the number of uninsured Americans, and while it has, millions remain uninsured. Just this week the Centers for Disease Control and Prevention reported that the number of Americans without health insurance rose in 2019 – for the third consecutive year – and the job loss associated with COVID-19 is expected to continue this trend in 2020. As a result, private safety-net hospitals and others like them, serving communities with large numbers of low-income and uninsured residents, have never needed the resources afforded by Medicaid DSH more than they do today. Congress has always questioned the wisdom of this cut and has never allowed those cuts to go into effect. The most recent delay expires after November 30.

Learn more from NASH’s Medicaid DSH letter to congressional leaders.