On January 2, 2024, the United States Court of Appeals for the Fifth Circuit affirmed the Texas District Court’s ruling allowing Texas to ban emergency abortions in spite of the Emergency Medical Treatment and Active Labor Act (EMTALA). Following a preliminary injunction blocking the U.S. Department of Health and Human Services (HHS) from enforcing the memorandum issued by the Centers for Medicare & Medicaid Services (CMS) on July 11, 2022, the Fifth Circuit found that the Guidance illegally used EMTALA to force emergency room doctors to illegally perform abortions when faced with the decision regarding whether an abortion is medically necessary to stabilize a patient where abortion is banned. More concisely stated, the court held that EMTALA prevents healthcare providers from refusing to treat pregnant patients and unborn children in emergencies—it does not require the provider to perform an abortion. 

Healthcare providers should not risk patient safety in emergency situations because they fear action or inaction is illegal. Educating the medical staff on the dichotomy in how federal and state laws apply in the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will help ensure the safety of the putative pregnant woman from an adverse outcome by allowing the provider to confidently provide the appropriate medically stabilizing treatment without fear of prosecution. Ultimately, understanding the legal scheme will lead to better quality of care.

Learn more about this topic in this author’s article “Navigating the Uncertainty of State Abortion Laws: Suggestions for Hospitals Amid the Rise of Federal Investigations,” recently published by the American Health Law Association (AHLA).

In August, Governor Murphy signed into law Senate Bill 3929 (approved P.L. 2023, c. 139), which amended the involuntary commitment process and added, among other things, a mechanism by which hospitals could request an additional 72 hours to hold patients when having difficulty locating a short-term care or psychiatric facility, or special psychiatric hospital with an available bed and willing to accept transfer of the patient. Given the lack of uniformity of how hospitals throughout New Jersey have historically handled such situations, it is important for hospitals to examine this new law and ensure their policies and processes are in line with the new requirements. For more information, please see our recently published Client Alert.

John W. Kaveney, a partner in the firm’s Healthcare and Litigation Departments, will present the program “The Conclusion of the Public Health Emergencies: What This Means for Healthcare Providers and the Accommodations Put in Place by the Federal and State Governments” at the New Jersey & Metro Philadelphia HFMA 47th Anniversary Annual Institute. The educational session is scheduled for Thursday, September 28, 2023, from 3:10pm – 4:00pm at the Borgata Hotel Casino & Spa in Atlantic City, the location of this year’s Institute. Greenbaum partner and Healthcare Chair James A. Robertson will introduce the program.

Throughout the COVID-19 public health emergencies, the federal government and state governments across the country invoked emergency waivers and various other emergency regulatory authorities to remove practice and treatment barriers and enable practical flexibilities so healthcare providers could rapidly respond to people who were impacted by COVID-19, while also ensuring that the public could continue to access necessary healthcare in a safe and effective manner. Action was also taken to ease the financial pressures on hospitals and other healthcare providers impacted by the influx of COVID-19 patients and the temporary disruption and/or temporary cessation of other healthcare services.

Mr. Kaveney’s presentation will focus on the future of the following accommodations made during the COVID-19 public health emergency and related compliance issues: expanded telehealth services; relaxation of provider licensure requirements; elimination of tort immunity; insurance coverage for COVID-19 treatment, testing, and prevention; enhanced financial support by the federal government; and other accommodations.  

Now that the public health emergencies are coming to an end, some of these temporary accommodations are being extended while others are being terminated. Providers must be prepared to make the appropriate adjustments as we shift to a post-public health emergency world.

Additional information about this year’s Institute, including registration, is available online.

In earlier blog posts from April 26, 2023 and August 23, 2022, we have provided information regarding the Garden State Commercial Property Assessed Clean Energy (C-PACE) program, established by the New Jersey Economic Development Authority (EDA) as a mechanism to finance commercial renewable energy projects, energy efficiency initiatives, electric vehicle charging stations, microgrids, power purchase agreements, and water efficiency and other authorized improvement projects.

The C-PACE program is expected to be a popular option for hospitals and other healthcare sector entities looking to rehabilitate facilities or adopt clean energy initiatives while seeking to avoid the upfront capital expenditures typically required for such projects.

This just-published Client Alert by Greenbaum attorney Maura E. Blau provides an update on the process by which the program will become operational, including the EDA’s August 21, 2023, deadline for accepting public comments.

During the COVID-19 pandemic, the federal government and many state governments went to great lengths to relax many of the restrictions on telehealth that had historically limited this medium in the provision of healthcare services to patients. However, in an effort to ensure that patients could continue to access necessary healthcare during this time period, exceptions had to be made to expand the means by which patients could access healthcare while in isolation. Now, with public health emergencies ending across the country, governments are making decisions as to which aspects of telehealth will return to pre-pandemic protocols and which will be allowed to remain in place as patients have grown accustomed to this alternative means of accessing healthcare services.

Greenbaum partner John W. Kaveney explores many of the decisions that have been made to date regarding telehealth, and discusses some that still must be decided, in an article that recently appeared in the Summer 2023 edition of Garden State Focus, a publication of the New Jersey Chapter of HFMA.   

As recently reported by HealthITSecurity, IBM Security’s 2023 Cost of a Data Breach Report revealed that the average cost of a healthcare data breach was almost $11 million in 2022, an $800,000 increase from the prior year and a 53% increase from 2020. The report further revealed that the global average cost of a data breach across all sectors in 2023 was $4.45 million, a 15% increase over the past three years.

IBM’s report analyzed 553 organizations impacted by data breaches during the time period between March 2022 and March 2023. To calculate the cost of data breaches, researchers involved in preparing the report took detection isolation, notification, post-breach response, and lost business costs into account.

The researchers found that the healthcare sector experienced the highest average cost of any industry for the 13th consecutive year. Critical infrastructure faced average breach costs that were significantly higher than other industries, and U.S.-based organizations faced higher breach costs overall than any other country.  

The IBM report further included these key findings:

  • Approximately 5% of the breaches studied were the result of known vulnerabilities that had yet to be addressed;
  • Despite an increased emphasis on cybersecurity, benign third parties or threat actors themselves were more likely to be the ones to identify a breach versus the internal security teams;
  • A shorter breach lifecycle was associated with an overall reduction in total cost for the breach;
  • Nearly a quarter of all attacks that were analyzed involved ransomware;
  • It was observed that organizations that stored data in public cloud systems and multiple environments observed higher costs and longer breach lifecycles; and
  • Only 51% of organizations that suffered a breach reported increasing security investment following the breach.

The IBM report underscores the critical importance of security teams being vigilant and organizations making appropriate investments in cybersecurity. While cybersecurity initiatives can be costly, the average expense of a data breach more than justifies that cost. Moreover, ensuring that your organization has the requisite procedures in place to identify, investigate and remediate a potential data breach quickly and efficiently is critical to minimizing both harm and expense.

Organizations would be well advised to review their HIPAA/HITECH policies and procedures, their compliance programs, and their cybersecurity insurance to ensure they have taken all necessary steps to minimize these risks and prepared their organizations to promptly respond should an incident arise.

On June 15, 2023, the Medicare Payment Advisory Commission (MedPAC), a nonpartisan independent legislative branch agency that was created to advise Congress on a range of issues affecting Medicare, issued its 2023 Report to Congress. Included therein was a report, mandated by the Consolidated Appropriations Act, on the usage of telehealth services during the public health emergency (PHE) and an analysis of the association between expanded telehealth coverage and healthcare quality, access, and costs.

Discussed in the Telehealth Report, among many other things, was the overall utilization of telehealth during the pandemic.

FFS Medicare spending for telehealth services was very low in 2019 ($130 million) but rose dramatically during the early months of the PHE, peaking at $1.9 billion in the second quarter of 2020, as providers and beneficiaries shifted rapidly from in-person visits to telehealth. Telehealth spending declined in the latter half of 2020 and in 2021, falling to $827 million in the fourth quarter of 2021. Similarly, between 2019 and 2020, the number of FFS beneficiaries who received at least one telehealth service paid under the PFS accelerated rapidly from 239,000 to 14.2 million (40 percent of Part B FFS beneficiaries), then declined in 2021 to 9.7 million (29 percent of Part B FFS beneficiaries).

While the latter part of 2020 and 2021 showed a drop-off in the utilization of telehealth services from its peak in the early months of the PHE in 2020, even as the pandemic eased, telehealth spending remained at an amount over six times what it was pre-PHE. Moreover, the number of beneficiaries utilizing telehealth remained steady at 29% into 2021, which is over forty times more beneficiaries than utilized telehealth pre-PHE. The MedPAC’s annual survey of Medicare beneficiaries also revealed that 40% of telehealth users said they were interested in continuing to use telehealth after the PHE. Thus, while it remains to be seen whether telehealth becomes a permanent fixture in the delivery of services to Medicare beneficiaries, there certainly remains a demand.

The Telehealth Report also commented on the question of whether expanded telehealth coverage impacted quality, access, and cost during the PHE. While the MedPAC qualified its comments by indicating that any conclusions were limited because of a time lag in claims data, which could cloud the results due to COVID-19 surges during the available period of time (i.e. 2021), the report nonetheless conveyed some preliminary conclusions. The MedPAC reviewed Medicare fee-for-service administrative data to compare population-based outcomes across hospital service areas (HSAs) with different levels of telehealth service use. The MedPAC also compared rates of hospitalization and clinician encounters for the various groups of HSAs.  The MedPAC concluded that “during the pandemic, greater telehealth use was associated with little change in measured quality, slightly improved access to care for some beneficiaries, and slightly increased costs to the Medicare program.” The MedPAC cautioned that further research, including the review of more recent data as it becomes available, is critical to truly assess these items.

As Congress grapples with the ultimate questions of what telehealth should look like beyond 2023 and 2024, as the various extensions expire, what remains clear is that the PHE has drastically changed how healthcare is provided to patients. In addition, the rate at which telehealth has been utilized over the past few years is likely to signal a desire for its continued availability into the future. Thus, lawmakers are going to have a difficult time putting the genie back in the bottle and returning telehealth-based Medicare services to the much narrower pre-PHE framework.

Our partner Jim Robertson is the featured speaker on the Hospital Finance Podcast episode “Thinking Outside the Box on Challenging State DSH Subsidies,” which is now available online on the Besler website and on major podcast platforms including iTunes, Spotify, Google Podcasts, Stitcher and SoundCloud. Highlights of the episode include a review of the Takings Clause of the U.S. Constitution, the type of government action the takings clause protects private citizens against, challenging government action in the context of hospital reimbursement, and related court decisions specifically in the healthcare field. Besler, a nationally recognized financial and operational consulting firm with over 30 years of experience in healthcare financial management, combines broad healthcare finance expertise with cutting-edge technology to help hospitals enhance and protect their revenue. 

The COVID-19 pandemic created a paradigm shift in the world of medicine with the increased use of telehealth and telemedicine to meet the challenge of expanding the delivery methods patients used to access health care. Although the federal Public Health Emergency related to COVID has now ended, telehealth providers must continue to monitor developments in federal and state laws, regulations and policies, as Greenbaum attorney Jessica M. Carroll explains in an article recently published by the American Health Law Association (AHLA) in its “Health Law Weekly” publication.

Considerable literature has emerged concerning the impact of the extended COVID-19 pandemic on the ability to handle stress and sustain mental health. Healthcare professionals are among the most vulnerable segments of the population to these consequences of the pandemic. There are numerous studies and reports of stress, sleep disturbances, and increased mood and anxiety symptoms among health workers. This is not surprising considering the exposure to an increased risk of infection, fear of infecting other people, working extraordinarily long hours with isolation from family, challenges of working conditions with the early inadequacy of personal protective equipment and overcrowded hospitals, and the experience of the suffering and death of patients.

The ability to cope with prolonged stress and avoid or minimize mental health problems is referred to as “resilience.” The consequences of prolonged stress can be seen in episodes of depression and anxiety leading to negative effects on family and social relationships and work performance. A variety of interventions to support the mental health of healthcare professionals have been proposed and studied. These include various forms of coaching with groups or through telehealth.

An article in the June 3, 2023 issue of The Lancet highlights another tool. It also illustrates how something old can be new. In the midst of the war with Russia, a video depicting a female Ukrainian soldier in full camouflage gear doing a Pikachu dance on a snowy bank with the sound of gunfire in the background went viral on the internet. Noting that medicine is not an actual war, and that doctors and nurses are not soldiers, the physician authors nonetheless emphasized the common need for an emotional outlet during all the trauma, tragedy, and death. They commented that searching for levity in the midst of a crisis serves to confirm our shared humanity and the universal need to laugh. The short article has a particularly powerful paragraph:

The aphorism “laughter is the best medicine” has been attributed to the Book of Proverbs in the Old Testament: “A merry heart doeth good like a medicine: but a broken spirit drieth the bones”. This ancient wisdom might also hold true for some medical conditions. Research suggests that laughter might raise the pain threshold and improve glucose tolerance, have positive effects on the immune system, and lower blood pressure. Indeed, laughter seems to be associated with certain healing properties among some patients.

Indeed, the healing effect of laughter has been the subject of study and commentary from such institutions as the Mayo Clinic and the Geisinger Health System. The health benefits include release of endorphins, reduction in stress, boosting the immune system, and increasing blood flow to internal organs. From a psychiatric perspective, one author has written that “[l]aughing at oneself also encourages healing” and adds a quote from a widely published psychoanalyst that “there is a need to learn to laugh at oneself as an individual and also as a professional.” Studies have shown that humor contributes to personal resiliency.

The closing line of the Lancet article regarding laughter sums things up well: “And in a job as stressful and demanding as health care, [laughter] can often be the medicine that physicians themselves desperately need.”

Considering the report submitted by the New Jersey State Bar Association concerning the prevalence of depression, burnout, suicidal ideation, problem drinking, and isolation among members of the legal profession and the New Jersey Supreme Court’s recent formation of a Committee on Wellness in the Law, there are many transferrable lessons to be learned. While this is a serious topic meriting serious thought and discussion, let’s instead end with Jerry Seinfeld’s memorable observations about a doctor’s waiting room.

The waiting room. I hate when they make you wait in the room. There’s no chance of not waiting. ‘Cause they call it the waiting room, they’re gonna use it. They’ve got it. It’s all set up for you to wait. And you sit there, you know, and you’ve got your little magazine. You pretend you’re reading it, but you’re really looking at the other people. You know, you’re thinking about them. Things like, “I wonder what he’s got. As soon as she goes, I’m getting her magazine.” And then, they finally call you and it’s a very exciting moment. They finally call you, and you stand up and you kinda look around at the other people in the room. “Well, I guess I’ve been chosen. I’ll see you all later.” You know, so you think you’re going to see the doctor, but you’re not, are you? No. You’re going into the next waiting room.