BY Kianna Sitarski, Brown & Fortunato, P.C.
Even before the onset of the COVID-19 Pandemic, hospitals and other healthcare facilities faced funding and workforce shortages. Predictably, the funding and workforce issues of the industry were further exacerbated by the demands of the pandemic.
To help alleviate the financial pressure that many patients, hospitals, and healthcare facilities face, United States Senators Bernie Sanders and Roger Marshall, MD, recently introduced a bill named the Bipartisan Primary Care and Health Workforce Expansion Act (the “Bill”). On September 21, 2023, the Senate Health, Education, Labor, and Pensions Committee (“HELP”) passed the Bill in a 14-7 vote and recommended it for full chamber consideration. The Bill contains the following three titles:
- Title I: Extension for Community Health Centers, National Health Service Corps, and Teaching Health Centers that Operate GME Programs
- Title II: Supporting the Health Care Workforce
- Title III: Reducing Health Care Costs for Patients
While Title I and Title II focus on the allocation of funds to specific programs, services, and entities and instruct government agencies to report on the effectiveness of such funds, Title III serves to implement restrictions and requirements on hospital billing.
One primary feature of this Bill that may affect hospital operations appears in Section 303, which would effectively ban facility fees for certain telehealth items and services, evaluation and management health care services, and some outpatient behavioral health services.
Facility fees can vary widely, often ranging from fifteen dollars to several hundred of dollars, depending on the services rendered. Many insurance plans do not cover facility fees or only a portion; therefore, patients are faced with paying these facility fees on top of the care costs. As the healthcare landscape continues to be transformed by an increase in telehealth services instead of in-office services, the intended goal of this Section is to increase accessibility and affordability for patients.
However, prohibiting facility fees for telehealth items and services may harm the affordability and accessibility of such services. As explained in an open letter to Sen. Bernie Sanders and Sen. Bill Cassidy by the American Hospital Organization, the “originating site facility fee [for telehealth items and services] supports reimbursement for staff time (for nurses or other clinical staff to set up the video visit/equipment and proctor the visit), facility space and technology. … Imposing these cuts would endanger the critical role hospitals and health systems play in their communities, including providing access to care for patients.” If this Bill is enacted into law, it is unclear how hospitals and other healthcare facilities, especially rural facilities with limited funding, will cover overhead costs associated with administering telehealth services.
Another primary objective of the Bill is to fortify the honest billing requirements under the Public Health Service Act. Section 302 of the Bill would require each off-campus outpatient department of a health care provider or facility to submit claims under a separate and distinct health identifier (i.e., National Provider Identifier) assigned to the department where items and services were furnished.
When a patient is treated in a hospital outpatient department that is not located on the primary provider’s campus, the patient may be liable for coinsurance amounts for the outpatient visit to the hospital and physician service. In such cases, if the patient is a Medicare beneficiary, Medicare requires written notice to the beneficiary explaining the amount of the beneficiary’s financial liability or “if the exact type and extent of care needed are not known, an explanation that the beneficiary will incur a coinsurance liability to the hospital that he or she would not incur if the facility were not provider-based, an estimate based on typical or average charges for visits to the facility, and a statement that the patient’s actual liability will depend upon the actual services furnished by the hospital.”
Failure to provide the above-described written notice to Medicare beneficiaries may render claims to Medicare for such services “false” under the False Claims Act. Implementing the requirement to submit claims under a unique National Provider Number for each off-campus department will allow the Centers for Medicare & Medicaid Service and the U.S. Department of Justice to identify such false claims better and pursue penalties where appropriate. However, hospitals and their off-campus departments may encounter significant administrative difficulties in reorganizing payor contracts and billing public and private payors according to this requirement.
While this Bill has yet to be enacted into law, it and proposals like it illustrate the need for hospitals and healthcare facilities to stay abreast of the shifting regulatory landscape, especially given the substantial changes from the COVID-19 public health emergency. This includes staying up to date with the status of this Bill and other statutory and regulatory changes like it to ensure that they remain compliant with the new administrative requirements and billing restrictions as those come into effect.