Federal Healthcare Legislation

In our November 9, 2021, blog post on the No Surprises Act (“NSA”), we discussed new consumer protections against surprise out-of-network bills. In addition to protecting insured consumers from balance billing, the NSA protects uninsured (or self-pay) individuals from many unexpectedly high medical bills. Specifically, effective January 1, 2022, a provider must furnish a self-pay patient with notice and a good faith estimate (“GFE”) of the cost of care prior to all scheduled services. This includes, among other things, a GFE of the cost of office visits, therapies, diagnostic tests, infusions, surgeries and any services reasonably expected to be provided in conjunction with such scheduled services. On December 21, 2021, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance on the Good Faith Estimate and the Patient-Provider Dispute Resolution (“PPDR”) process for people without insurance or who plan to pay the costs themselves.

Continue Reading Q&A: The No Surprises Act’s Protections for Uninsured (or Self-Pay) Individuals

On January 25, the U.S. Department of Labor (DOL), Department of Health and Human Services (HHS), and the Treasury (collectively the Tri-Agencies) published the first annual report on group health plans’ and health insurance issuers’ compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) as amended by the Consolidated Appropriations Act, 2021 (CAA). The Report noted that none of the comparative analyses reviewed “contained sufficient information upon initial receipt.” The Tri-Agencies made preliminary determinations of non-compliance for many plans and issuers, but the Report stressed that no final determinations had been made yet. Instead, plans and issuers may still take corrective action and, in so doing, avoid the triple-whammy of being named in next year’s report, having notice of noncompliance sent to plan participants and enrollees (essentially rolling out a red carpet for class action litigation), and the Tri-Agencies notifying the state regulator. Plans and issuers should not count on the Tri-Agencies exercising such restraint in the future.
Continue Reading Tri-Agencies Report MHPAEA Compliance Lacking, But Don’t Name and Shame Plans and Issuers . . . Yet

Today HHS published the Notice of Benefit and Payment Parameters for 2023 proposed rule in the Federal Register. The annual rulemaking details changes to qualified health plans (“QHPs”), QHP issuers, and the ACA’s exchanges including:


Continue Reading Back to the Future: 2023 Payment Rule Would Revert Nondiscrimination and Guaranteed Availability Provisions to Pre-Trump Forms, Returns Standardized Plan Options

Physicians and other providers can take a deep breath as Congress has acted to prevent the trio of Medicare payment cuts that were set to take effect at the beginning of 2022—a 3.75% cut due to scheduled changes in the Medicare Physician Fee Schedule (“PFS”), a 2% cut for Medicare sequestration, and a 4% Statutory Pay-As-You-Go (“PAYGO”) Act cut would have slashed Medicare payments by nearly 10% during a tumultuous time for healthcare. The Protecting Medicare and American Farmers from Sequester Cuts Act (S. 610) was approved by the U.S. House of Representatives on December 7 and passed the U.S. Senate on December 9, 2021.  The bill has been sent to President Biden’s desk for his signature.

Continue Reading News Flash: Last Minute Congressional Action Saves Physicians from a Nearly 10% Cut to Medicare Payments

As reintroduced in the U.S. House of Representatives by Rep. Frank Pallone, Jr. (D-NJ-6) on April 22, 2021 after originally being introduced on September 19, 2019, H.R. 3, also known as known as the Elijah E. Cummings Lower Drug Costs Now Act, proposes to grant the U.S. Department of Health and Human Services (“HHS”) the authority to negotiate directly with pharmaceutical companies in order to lower drug prices in Medicare Part B and Medicare Part D (the “Proposal”).  The Proposal would require that 125 brand-name drugs that cost Medicare the most to be subject to negotiation by Medicare, with a cap on the price for each drug set at 120% of the average price paid in six other countries.  The Proposal is part of a $3.5 trillion budget proposal that, as of this writing, faces an uncertain future in Congress.  While not a novel idea, the Proposal is controversial and faces strong opposition from pharmaceutical companies in particular.

Continue Reading Elijah E. Cummings Lower Drug Costs Now Act: The Long and Winding Road to Drug Pricing Reform

Health plans and issuers racing to implement overlapping price transparency and disclosure requirements in response to the Transparency in Coverage final rule (TiC Final Rule) and the Consolidated Appropriations Act, 2021 (CAA) received a welcome reprieve via guidance published August 20. The Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments) announced that they would exercise enforcement discretion and defer enforcement of requirements that plans and issuers publish machine-readable files for in-network rates and out-of-network allowed amounts and billed charges until July 1, 2022 instead of January 1, 2022. The Departments also explained that they would reconsider whether the TiC Final Rule’s requirement to publish negotiated rates and historical net prices for covered prescription drugs in a machine-readable file remains appropriate given the subsequent enactment of the provisions in the Division BB, Title II—Transparency of the Consolidated Appropriations Act, 2021, which requires plans and issuers to report similar prescription drug pricing information to the Departments by December 27, 2021.

Continue Reading Federal Government Announces Enforcement Discretion, Deferral For Certain Price Disclosures And Future Rulemakings

On July 13, 2021, the Centers for Medicare & Medicaid Services (“CMS”) unveiled a proposal to temporarily extend Medicare coverage for particular telehealth services granted during the COVID-19 public health emergency (the “Pandemic”), in order to evaluate which services should be covered permanently. Through the 2022 Physician Fee Schedule (“PFS”), CMS is allowing certain services to remain on the telehealth list until the end of December 31, 2023.

Continue Reading CMS’ Proposal to Expand Telehealth Coverage

In its June 2021 physician supply and demand report, “The Complexities of Physician Supply and Demand: Projections From 2019 to 2034” (the “Report”), the Association of American Medical Colleges (“AAMC”) highlights the ongoing concern of physician shortages in the United States.  According to the Report, the U.S. faces a potential physician shortage of between 37,800 to 124,000 doctors by 2034. While an improvement from AAMC’s June 2020 report, the COVID-19 pandemic highlighted the consequences of failing to address this problem, as medical schools and teaching hospitals were forced to graduate medical students early, and hospitals scrambled to call up retired physicians and to pay steep travel and relocation rates, all to address the public health emergency.
Continue Reading Congressional Action in the Face of Mounting Concerns Regarding Current and Future Physician Shortages

The Biden Administration’s American Rescue Plan Act of 2021 (H.R. 1319) (the “Act”) could present an opportunity for the growth of utilization of ambulatory surgery centers (“ASCs”), continuing the trend of migration of inpatient procedures to the outpatient setting.  This shift toward the outpatient setting initially began prior to the COVID-19 public health emergency, but was accelerated by the pandemic’s effect on hospitals, likely continuing the substantial increase in investment in the ASC marketplace.
Continue Reading Biden’s American Rescue Plan Follows Trend Toward Outpatient Setting, Increase in ASC Investment

On March 10, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (the “Act”). This $1.9 trillion COVID-19 relief package not only includes a whole host
Continue Reading The American Rescue Plan Act of 2021: A New Lease on Life for the Affordable Care Act?