Texas Judge Inserts Uncertainty into PPACA Mandate

In March, the U.S. District Court in the Northern District of Texas vacated the requirement that Patient Protection and Affordable Care Act- (PPACA)-compliant health plans cover certain U.S. Preventive Services Task Force (USPSTF)-recommended preventive services without cost sharing.

The U.S. Department of Justice (DOJ) then argued that the lower-court ruling from a federal judge in Texas “has no legal justification and threatens the public health.” The U.S. Department of Health and Human Services (HHS) estimates that the PPACA covered preventive services for more than 150 million people in 2020.

I am not taking a stance on the provisions of the PPACA. But as a lawyer, I can tell you that to obtain an injunction, you have to prove:

1. Likelihood of success on the merits;
2. Irreparable harm;
3. Balancing the equities; and
4. Public interest.

Those standards come from a 2008 Supreme Court case, Winter v. Natural Resources Defense Council.

I understand that this case has become highly polarizing. Obviously, the Republicans are plaintiffs in this case, and fighting against what has become known as Obamacare. But I do not care about the politics. My contention with this case is if the government is mandating (well, was mandating, before this judge’s decision) preventive care to be free, how is that not forcing doctors to work for whatever the government deems to be fair? Will they get paid Medicare or Medicaid prices? They should be so lucky. I don’t want to go out on a limb and assess mandating doctors to provide services for Medicare and Medicaid prices, regardless whether the physician is even enrolled in Medicare or Medicaid.

On another note, the Recovery Audit Contractor (RAC) Performant, added hospice to the list of CMS-approved audit targets. The subsequent review will determine if hospice General Inpatient Care (GIP) was reasonable and necessary to achieve pain control or acute. The “review will determine if Hospice General Inpatient Care (GIP) was reasonable and necessary to achieve pain control or acute or chronic symptom management which could not be managed in any other setting. Claims that do not meet the indications of coverage and/or medical necessity will be recoded to Routine Hospice Care 0651 and result in an overpayment.” The affected code will be REV code 0656.

On March 31, the Centers for Medicare & Medicaid Services (CMS) issued a 2024 proposed rule that includes a 2.8-percent rate increase, and the new cap of $33,396.55. The proposed rule also includes updates on the Hospice Outcomes & Patient Evaluation (HOPE) tool, CAHPS® tool, the Hospice Special Focus Program, and a proposed addition of hospice physicians to the Medicare enrollment process.

For a full analysis of the proposed rule, view the National Hospice and Palliative Care Organization’s (NHPCO’s) regulatory alert from April 4. Comments are due by May 30.