Preventing Elder Abuse: NJ Moves Toward Private Video Surveillance

There has been growing demand by nursing home patients’ family members for video surveillance in patients’ rooms in hopes of preventing elder abuse. New Jersey Assembly Speaker Vincent Prieto (D-Bergen and Hudson) introduced a bill, A-3883, in November 2014 to permit video cameras and audio devices in nursing home rooms to help prevent instances of abuse and theft by staff members. On December 11, 2014, New Jersey lawmakers on the Assembly Health and Senior Services Committee approved the legislation. Nursing home unions and nursing home owners oppose the bill, and claim that it would present issues involving the privacy of residents and staff, staff contracts and negotiations, and patient-caregiver trust. A Senate version of the bill has not yet been introduced for this controversial subject.

HIPAA issues. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191) encompasses several health-related improvement initiatives, such as the prevention of health care fraud and abuse. HIPAA also contains national standards for the use and dissemination of health care information, known as the Privacy Rule.

The HIPAA Privacy Rule generally restricts a covered entity, which includes nursing home facilities, from disclosing protected patient health information. Under 45 C.F.R. sec. 164.502(a), protected health information (PHI) is any individually identifiable health information held or transmitted by a covered entity regardless of the form of the information. More specifically, according to 45 C.F.R. sec. 160.103, individually identifiable health information relates to the health condition of a specific individual or provision of health care services to a specific individual, whose identity can be ascertained through the information.

The Privacy Rule poses a problem for nursing home surveillance in that a camera intended to monitor the consenting resident also may inadvertently capture another resident who has not consented, which could result in an invasion of privacy lawsuit. Using cameras that record audio can also be considered eavesdropping or wiretapping.

AARP New Jersey Associate State Director Evelyn Liebman noted that the hundreds of millions in taxpayer-funded Medicaid money that support nursing homes also warrant added transparency. Facility owners have countered that video recording would make it more difficult to recruit and retain talented staff members. Members of the Health Care Association of New Jersey also worry that video recording may result in fewer family visits because family members would simply monitor the videos.

A-3883. The bill allows recording devices to be in either a visible or a hidden location. The resident or authorized representative would inform the nursing home of the type of device being used and that the resident consented to the recording; recording cannot begin until such notification. The nursing home would be released from any civil liability for privacy violations related to the recording.

If the resident has a roommate, he would also have to consent to the recording. The roommate could also allow video recording but prohibit audio recording or require that the video camera be pointed away. Residents would be required to be transferred to another room if their roommates did not consent to any recording. The resident or their representative would be responsible for paying for the recording. State officials would determine the penalties for nursing homes that violate the bill’s provisions.

Oklahoma has already passed similar legislation that gives residents, rather than the nursing homes, the choice to use cameras. Perhaps New Jersey nursing home residents will also be given the same choice of added safety and protection.

Subcommittee Seeks Public Comment on GME Policy

A bipartisan group of members of the Health Subcommittee of the House Energy and Commerce Committee released an open letter requesting comments on federal funding of graduate medical education (GME). The letter, which was released December 8, 2014, was signed by Subcommittee Chair Joseph R. Pitts (R-Pa), Ranking Member Frank Pallone (D-NJ), and Members Gene Green D-Texas), Diana DeGette (D-Colo), Cathy McMorris Rodgers (R-Wash), Peter Welch (D-Vt), Morgan Griffith (R-Va), and Kathy Castor (D-Fla).

The IOM Report

The members want to know whether, or the extent to which, other stakeholders agree with the findings and recommendations made by the Institute of Medicine in a July 2014 report (see GME system needs major overhaul, July 31, 2014). The IOM found that the current financing structure favors urban universities in the Northeast, encourages the concentration of residents in specialties rather than primary care, and fails to prepare them to serve patients with chronic conditions or to use office-based technology. The letter describes the IOM report as recommending “sweeping changes to our nation’s financing, governance, and program design” for GME and requests additional input as Congress “prepares to review the IOM recommendations.”

Specific Questions

The subcommittee’s questions focus primarily on changes to the financing system, i.e., whether : (1) any changes could be “leveraged” to improve efficiency, effectiveness, and stability; (2) federal funding should make training opportunities available in rural as well as urban areas; and (3) the current funding system is adequate to meet the needs of the health care workforce going forward. The subcommittee expressed particular interest in: (1) whether to continue the separation of direct and indirect costs or to have funding follow the resident rather than the institution; (2) the extent to which the financing structure affects the availability of primary and specialty care and whether, or how, it should do so in the future; (3) the improvements Congress should make to improve program quality, training, and accountability; and (4) whether the system under which residents are allocated should be changed to meet the needs of the health care work force.

The deadline for submission of comments is January 16, 2015.

The Secretive Business of Providing Health Care Coverage

As Massachusetts was considered a ground-breaking state in offering universal health care to its residents, so too, is it ground-breaking in health cost transparency. As of October 1, 2014, Massachusetts health insurers are now required to provide price information to consumers through online cost estimator tools that compare the price and out-of-pocket costs of certain health care services, procedures, or hospital admissions.

The Massachusetts Healthcare Cost Containment and Quality Improvement law, which was passed in 2012 (Chapter 224 under the Acts of 2012), allows beneficiaries the opportunity to choose providers and obtain information about medical procedure costs, giving patients advance planning capabilities. The online tools will specifically help consumers with high deductible plans or those who have to pay co-insurance.

This is great news for Massachusetts residents, but what about the rest of us? Cost transparency, or the lack of it, is a nationwide problem.

Case Study

The Miami-Dade school district is self-insured and bears the financial burden of covering its own employees. The district superintendent claimed to know what the district pays for health claims, but after school board meetings in 2013 and 2014 in which board members raised concerns over increasing health costs for teachers, it became clear that the superintendent was still in the dark about how much the district pays to any one hospital or provider for a given service. The district uses Cigna for its employee health benefits.

According to the Kaiser Family Foundation (KFF), the district absorbed an additional 4 percent in health care costs in 2014. Teachers’ salary increases have not been matching up to their premium costs, and their health contributions remain largely the same. The head of the district’s teachers’ union has asked the school district to investigate how the cost savings from consistent teacher pay rates were being applied and what other factors might be contributing to the increasing health premiums.

The union leader’s questions will most likely go unanswered. Although the Miami-Dade school district is subject to Florida’s open records laws, its insurance carrier, Cigna, has refused to share contracted prices. This keeps the district and its employees from making informed, financially wise choices and allows insurers to drive up premiums.

ACA Transparency Efforts

In April 2014, CMS sent letters to the American Medical Association and the Florida Medical Association announcing its intention to release Medicare data in the form of the number and type of health care services that providers delivered and the amounts Medicare paid for those services in 2012. CMS explained that the release of information was in response to recent Freedom of Information Act (FOIA) requests. Provisions under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) include ACA section 10331, which mandates that the Secretary of HHS create a physician-compare internet website to make information on physician performance available to the public. Another provision, ACA section 10332, allows certain entities to access Medicare claims data in order to review the data and issue performance reports about individual providers.

With an increased focus on transparency, the answer to why Miami-Dade school district employees, or the rest of the nation for that matter, must be kept in the dark about health care costs remains a secret.

DSH Cuts and Uncompensated Care Costs Impacting Hospital Reimbursement

Medicare payments to hospitals that serve a disproportionate share of poor people will continue to decrease in fiscal year (FY) 2015.  In FY 2015 CMS calculates that the total amount available for the Medicare disproportionate share hospital (DSH)  payment will decrease  by $1.225 billion compared to the amount available in FY 2014.  This decrease should come as no surprise to anyone as the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) required these reductions.  The thinking was that  DHS payment should decrease because as more and more individuals obtain health insurance coverage or are enrolled in an expanded Medicaid, there will be fewer and fewer people who will not be able to pay or have their hospital bills paid for them.  And this has been found to be just the case as the Office of the Assistant Secretary for Planning and Evaluation reported that uncompensated care was reduced by $5.7 billion in 2014.   The great majority of this reduction though came in states that had expanded Medicaid eligibility, putting hospitals in states that did not expand Medicaid eligibility in a particularly difficult spot; they will be receiving less in DSH payments, but the amount of uncompensated care is not decreasing.

DSH Payments

DSH payments began in the 1980s as a way to provide more money to hospitals that serve a poorer population of people who cannot afford to pay or have some other entity like insurance or a public health program pay for their hospital bills. Section 3133 of the ACA dramatically changed how DSH payments would be calculated.  All hospitals would receive 25 percent of what they would have received under the pre-ACA system.  The remaining amount would come from a pool of money the amount of which is calculated based on the change in the percentage of uninsured from the current year to the year just prior to the year the ACA was signed.  As the number of uninsured decreased so would the amount available to hospitals in their DSH payments. For FY 2014 CMS calculated that the percentage of uninsured declined from 18 percent during the year prior to the ACA’s adoption to 16 percent.  For FY 2015 CMS has calculated that the percentage of uninsured is 13.75 percent of the population.

Available Amount

These two reductions have resulted in a corresponding reductions in the amount available for uncompensated care payments, or the portion of the DSH payment not equaling 25 percent of what the DSH payment would have been if the changes in the ACA were no adopted.  For FY 2015 the amount of money for uncompensated care payments is $7.6 billion which is down from $9.033 billion in FY 2014.  CMS estimated in the Final rule updating the hospital inpatient prospective payment system (IPPS) for FY 2015 that hospitals would see approximately a 1.3 percent reduction in the amount of their DSH payments from FY 2014.

The percentage is less than one would expect because during this time period the amount available for the original 25 percent has increased from year to year somewhat offsetting the decrease in uncompensated care payments. This increase is primarily due to the increase in the number of Medicaid recipient due to the expansion of Medicaid, but it also is attributable to just an overall increase in the payment amount over time.  In FY 2014 $3.193 billion was avialable to pay the pre-ACA amount and in the FY 2015 this amount was increased to $3.345 billion. The number of Medicaid patients a hospital treats is used to determine the amount of the hospital pre-ACA DSH payment.

Uncompensated Care

An increase in the amount of Medicaid patients has resulted in a significant decrease in the cost of uncompensated care by hospitals.  HHS is reporting that FY 2014 hospitals incurred $5.7 billion less in uncompensated care costs due to an increase in the number of patients that are now covered by an expanded Medicaid.

This decrease in uncompensated care costs did not occur in states that did not expand Medicaid eligibility. Hospitals in those states find themselves in a difficult situation as they are receiving less DSH payments, but are not seeing an increase in revenue from patients with Medicaid or private insurance coverage.  Many of these hospitals rely heavily on DSH payments and decreases in the amount  of money they receive could have dire consequences for these institutions and the people they serve