MHA Today | January 13, 2017

January 13, 2017

MHA Today: News for Healthcare Leaders

twitter linkedin MHA Today is provided as a service to members of the Missouri Hospital Association. Additional information is available online at MHAnet.

Editor’s Note: The MHA office is closed today due to inclement weather. Regular business operations will resume Monday, Jan. 16. Stay safe this weekend!


Herb Kuhn, MHA President & CEO

Very few laws have the raw power of the law of unintended consequences. You’ll need to look no further than your balance sheets to see an example. The number you should be looking at is on the line for your liability insurance.

In 2005, the Missouri General Assembly passed, and Gov. Matt Blunt signed, a broad tort law revision. The new law helped bring sanity to an out-of-control medical liability insurance marketplace.

Elements of the law were contested subsequently, and the General Assembly has worked to ensure that where problems have developed, patches were applied. However, the courts blew an enormous hole in the law that trial attorneys were able to exploit, with significant consequences for hospitals, in 2014.

Definitions are an important part of any bill, and they help determine the scope of a law. The 2005 legislation defined the term “physician employee,” but didn’t use the term elsewhere in the bill. The bill did, however, use the term “employee.” The discrepancy matters.

In Jefferson v. Missouri Baptist, a suit was filed against a radiologist who practiced in the hospital but was employed by a radiology group. Under the Missouri law enacted in 2005, a health care provider is only liable for the actions or omissions of an employee of the health care provider. In the circuit court, the hospital successfully defended itself against the suit. It argued that the physician was not an employee of the hospital, relying on the definition of “physician employee” in the law.

The Eastern District Missouri Court of Appeals disagreed with the trial court, and the Missouri Supreme Court has rejected the case. The precedent established by the appeals court — that the absence of a physician employee reference outside of the definition section in the law means hospitals are liable as employers — stands.

Drafting errors happen in legislation. Sometimes they are harmless. Other times, they have the power to fundamentally undermine a law, or a lawmaker’s intent.

Certainly, lawmakers didn’t include a definition of a specific employee type without intending that definition to apply to a certain class of employees, or to exclude others. Nonetheless, hospitals remain liable for nonemployee physicians under Jefferson because the court applied a broader definition of employee.

The Jefferson decision is expensive for Missouri’s hospital community. The interpretation requires that hospitals maintain insurance coverage as a party to liability lawsuits involving nonemployee physicians. At the same time, plaintiffs’ attorneys can sue both a physician and the hospital where care was provided, expanding the number of deep pockets in the suit.

There’s a remedy to this drafting error and subsequent judicial fallout. Lawmakers can amend the law this year to provide specific protections for hospitals against liability for nonemployee physicians.

MHA is promoting legislation to restore the original intent of the 2005 liability reform law. In the Senate, Sen. Caleb Rowden has introduced Senate Bill 237, and in the House, Rep. Kevin Austin has introduced House Bill 452. We are working to build momentum with legislative leadership and the new administration. The MHA Board of Trustees has sent a letter to the governor to underscore the importance of this issue for the state’s hospitals.

Money that hospitals spend to defend against lawsuits they shouldn’t be a part of in the first place is money that can’t be spent to improve care. That’s an unintended consequence with ramifications for all Missourians.

Let me know what you are thinking.

Herb Kuhn, MHA President & CEO

Herb B. Kuhn
MHA President and CEO

In This Issue
Preparedness Systems Activate For Winter Weather
U.S. House Approves Budget Resolution To Start ACA Repeal Process
MedPAC Makes Recommendations For 2018 Rate Increases
Missouri Hospital Death Certificate Data Highlighted In New CDC MMWR Report
NURSE Corps Loan Repayment Program Accepts Applications


Preparedness Systems Activate For Winter Weather

Staff Contact: Jackie Gatz

With ice storm warnings announced for the majority of Missouri, hospitals and regional health care coalitions in the state have activated their communication and coordination procedures during the last 24 to 48 hours. As the first round of Winter Storm Jupiter moves through western counties and precipitation begins in Central and Eastern Missouri, health care organizations are reporting that their proactive measures have resulted in successful continuity of operations.

Throughout the weekend, as freezing temperatures and the second round of precipitation threaten ice accumulation and power outages, hospitals are encouraged to continue implementing severe weather procedures. In the event of a resource shortage, hospitals should document their situational status on EMResource® and notify their local emergency management agency of any resource requests. Regional health care coalition duty officers and MHA emergency preparedness staff are routinely monitoring EMResource® through the duration of the winter storm. The Missouri Department of Health and Senior Services’ Emergency Response Center also is available for assistance at 800/392-0272.

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state and federal health policy developments

U.S. House Approves Budget Resolution To Start ACA Repeal Process

Staff Contact: Daniel Landon

The U.S. House of Representatives has approved a budget resolution that initiates the longer process of repealing the Affordable Care Act. The resolution was approved yesterday by the U.S. Senate. It gives instruction to House and Senate committees to develop ACA repeal legislation by Friday, Jan. 27.

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MedPAC Makes Recommendations For 2018 Rate Increases

Staff Contact: Andrew Wheeler

This week, MedPAC discussed their recommendations on the amount of rate increases for 2018. Recommendations include ambulatory surgery centers, skilled-nursing facilities and inpatient rehabilitation facilities receiving no increase in 2018. The commission further recommended that hospitals receive a rate increase of 1.85 percent and physicians receive a 0.5 percent increase. Another topic included was off-site emergency departments reporting services by a modifier. MedPAC has released meeting materials.

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Quality and Population Health

Missouri Hospital Death Certificate Data Highlighted In New CDC MMWR Report

Staff Contact: Leslie Porth

Today, new research from the Missouri Department of Health and Senior Services was featured in the U.S. Department of Health & Human Services’ and Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. The report compares Missouri hospital inpatient death rates reported on death certificates to the CDC national inpatient hospital death rates. The analysis documents higher hospital reporting of death from heart and renal disease, and lower hospital reporting of cancer-related deaths as compared to the CDC index. The study poses several possible explanations for the difference and promotes training opportunities to ensure accurate death certificate completion. MHA has produced talking points for hospitals that are contacted about the research.

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Workforce News

NURSE Corps Loan Repayment Program Accepts Applications

Staff Contact: Jim Mikes

The 2017 NURSE Corps Loan Repayment Program application cycle is open now through Thursday, Feb. 23. The purpose of the program is to assist in the recruitment and retention of professional registered nurses, including advanced practice R.N.s, who are dedicated to working in eligible health care facilities with a critical shortage of nurses or eligible schools of nursing.

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Did You Miss An Issue Of MHA Today?

January 12, 2017
Senate Passes And Advances Budget Resolution
CMS Proposes Requirements For Qualified Practitioners And Suppliers Of Prosthetics
CMS Issues Preliminary Guidance On HOPD And Site-Neutral Provisions
MLN Connects Provider eNews Available

January 11, 2017
Greitens Issues Executive Orders On Ethics, State Regulations
Missouri Senate Committee Holds Hearing On Medicaid Global Waiver Legislation
NASEM Releases Health Equity Report

January 10, 2017
MHA Writes Congressional Delegation About ACA Repeal/Replacement
CMS Announces Marketplace Enrollment Outpacing 2016
CMS Releases Hospital Compare Preview Reports
CMS Publishes 2016 eCQM Specifications Addendum
HIIN Offers Fellowships
CMS Offers Hospital Open Door Forum

January 9, 2017
Political Parties Offer Contrasting Views Of ACA Repeal
Greitens Takes Oath Of Office As Governor
CMS Releases Midwest Division Provider Update
CMS Extends Temporary Moratoria

Consider This ...

This week is Folic Acid Awareness Week. Folic acid is a B-vitamin that is necessary for proper cell growth. If taken before and during early pregnancy, folic acid can prevent up to 70 percent of some serious birth defects of the brain and spine, called neural tube defects.

Source: National Birth Defects Prevention Network