November 13, 2020

ASC Industry Awareness

A Peek into 2021

With the challenges we have all faced in 2020, it may be harder to look ahead. However, there are some interesting opportunities in 2021 for ASCs. Independent surgery centers are in position to do well due to their entrepreneurial nature, their specialty focus, and their locations in high-traffic areas. Cardiovascular procedures will continue to shift to ASCs due to quality of care and cost-savings for the system. Though physician ownership stats are shifting somewhat because of factors in play during the pandemic, physician owners alone make up 64% of the ownership distribution of ASCs in the US and physician joint ventures with other entities comprise another 29% of the ownership distribution. In addition, CMS is considering 67 spine surgeries to remove from the inpatient only list in 2021.

ASC Innovations

As more complex cardiology, spine, and orthopedic surgeries become commonplace in ASCs, advances and innovations will become necessary and manageable. One of those innovations is the advent of more robotic technology  – at least in centers with the cases and traffic to justify the expenditure. Changes in general retail conditions have also created innovation opportunities for ASCs. Lighthouse Surgical Suites in Hollis, NH is converting a former grocery store into an 8,000 sq. ft. orthopedic surgery center. And here’s an innovation that will get your attention. It appears that awake fusions may just be part of the future of spine surgeries at ASCs.


Healthcare Industry/Trends

What’s New with Health Insurers?

Anthem and UHC rolled back some aspects of their pandemic telehealth coverage starting October 1. CMS Administrator Seema Verma plans to increase telehealth services to make digital healthcare more widely available and adequately reimbursed. Large insurers that facilitated millions of digital visits in 2020 acknowledge that telehealth is a mission critical strategy. UHC has big plans for Medicare Advantage expansion in 2021, planning to add 300 additional counties to its area of service. BCBS of Michigan is managing administrative costs by offering 8,500 employees voluntary separation. Over 500 employees have accepted the offers. Anthem’s profit fell over 80%  in Q3 compared with Q3 2019 on an uptick in COVID-19 expenses.

Payer Consolidation Trend

The American Medical Association (AMA) recently published its 2020 update on Competition in Health Insurance, which studies the concentration of health insurers in US markets. The AMA has determined that we have experienced a 56% increase in payer market consolidation in the past five years. We have 15 states where the largest insurer holds over 50% of the PPO+POS+HMO+EXCH market, (see AMA state-by-state market share map). Payer trends that have been in motion continue to extend to patients also. Nearly 70% of hospital leaders expect an increase in self-pay due to COVID-19.


Healthcare Digital Transformation Watch

Health IT Issues to Watch

Five Health IT issues and policies are going to be with us in the near-term future on the federal level that are particularly worth watching; imminent among them is cyber security. The FBI and HHS are warning of increased cyber threats to US hospitals from foreign bad actors using damaging ransomware attacks. Other Health IT issues of note nationally are the ability to match patients to their health data reliably, the expansion of telehealth services, interoperability, and the privacy of health data. Interoperability has been improving the last few years, but small and rural hospitals are still experiencing lags.


Out-of-Network Watch

More State Moves on Surprise Billing

The majority of Americans consistently express concern about the cost and practice of surprise medical billing. States continue to make new efforts to curtail the practice and the results. Michigan has just enacted a new surprise billing law that has bipartisan and healthcare provider support. Georgia’s new Surprise Billing Consumer Protection Act outlines an arbitration process for disputes between providers and insurers, keeping patients out of the middle of negotiations. Many doctors believe that the latest Alexander-Cassidy compromise on the federal level is not yet the right solution. In separate news, five New York ER physician groups are battling UHC over alleged illegal out-of-network claims underpayment.



Likely the Last Attempt on PPACA

   From the office of Jon Sistare, JD, Attorney at Law

In what may be the last attempt to nullify the Patient Protection and Affordable Care Act (PPACA, aka Obamacare), a group of more conservative state governments, led by Texas, against a group of more liberal state governments, led by California, had two hours at the US Supreme Court on November 10th to make their oral arguments. The case is thus referred to as Texas v. California.

The primary issue of this case is the individual mandate of Obamacare. The individual mandate was argued as a necessity to balance the books of the Obamacare formula. If every individual in this country were mandated to have some form of health insurance, then the younger and healthier people who would pay premiums would offset the care and the cost for older and less healthy people whose health needs and expense might outstrip the premiums they would pay.

Conservatives believe the individual mandate is an outrageous reach of the federal government’s commerce clause authority to require people to have health insurance. Liberals believe it is a necessary element of our society to ensure that all individuals have health care. Chief Justice John Roberts played the middle in 2012 and found the individual mandate to be a “tax” rather than a penalty. Since Congress has the power to tax, Roberts held the individual mandate was lawful.

Spring forward to 2017 when President Trump and the Republicans took charge of the White House and Congress.  Despite attempts to completely repeal Obamacare, the most the Congress could do was to agree to take the individual mandate tax to zero. However, states like Texas still wanted to drive forward with the concept to repeal the entire law. Which brings us to the Supreme Court’s hearing on Tuesday, November 10, with the primary focus still on the individual mandate and whether Congress has the power to require all citizens to have health insurance.

At this hearing, there are two main legal issues at play. The first is whether Texas et al has standing to bring the action.  The argument against Texas’ standing is that since the individual mandate tax is now set at zero, there is no harm placed upon any citizen. If a person does not wish to have health insurance there is no consequential penalty, thus how is the person harmed?  And, if they are not harmed, can they bring a legal action? The converse argument is that while there is no penalty currently, with the individual mandate still a part of Obamacare, what is to say that in some future Congress the tax would be re-established to an amount more than zero? In other words, while there is no current harm, the harm could easily return if the Congress chose to do so by a vote and the President signed a law to resurrect an amount more than zero on the tax.

The second issue is what is called severability. In the law, the concept of severability means that a part of a law, or a part of a contract might be considered to be invalid, but that doesn’t necessitate the entire law or the entire contract to be thrown out or considered to be invalid. The argument against the concept of severability here is that the individual mandate, while it is considered an anathema to many, is but a small part of a huge piece of legislation. Thus if the individual mandate is determined to be invalid, would that invalidate the rest of the provisions of Obamacare? California and its allies think not. Texas argues that it should — as the legislative history of Obamacare demonstrates the individual mandate was the key balancing act of the entirety of the law.

Interestingly, Chief Justice Roberts maintains similar opinions that he had in 2012 and indicated at Tuesday’s hearing that he did not believe it was the Court’s job to make decisions that Congress could not, or chose not to make with respect to the individual mandate. Justice Brett Kavanaugh apparently has strong feelings on the concept of severability and that one part of a law that may be found to be unconstitutional does not mean the entirety of the law must then be found to be unconstitutional.

So, while the Court’s decision won’t be released for a number of months, the comments made by two of the Court’s conservative wing seem to indicate Obamacare is likely to remain on the books for the time being. If so, any further legal challenges to Obamacare are likely to fail, as the issues will have been hashed out and resolved by this decision.


At a Glance

How COVID-19 Is Accelerating Healthcare Industry Changes
Telehealth Is Only the Most Visible Way

Cleveland Clinic Is Rescheduling Nonemergency Services
For Now, Just Short-Term — Only Two Days

Knoxville Surgeon Operates on Zoo Gorilla
“It’s Not Every Day You Can Say, ‘I Operated On A Gorilla!'”

Six Lifestyle Changes Doctors Wish Patients Would Make
Underlying Good Health Is Key to Better Outcomes

Hospitals Seek to Balance Virus Care with More Lucrative Services
Balance Is Vital, Especially for Smaller Hospitals