Medicaid enrollment grew significantly during the public health emergency (PHE). States implemented expanded eligibility and enrollment as well as reduced cost sharing and premiums based on Medicaid program regulatory flexibilities available during the PHE, but many of those will expire on May 11, 2023 and December 11, 2023.
Legal Insights and Perspectives for the Healthcare Industry
Healthcare providers are scrambling to understand the impacts of the May 11 expiration of the COVID-19 public health emergency (PHE). Luckily for most telehealth providers, the outlook of their operations post-PHE is relatively clear.
The US Department of Health and Human Services Office of Inspector General (OIG) announced on April 25 that it would be updating its Compliance Program Guidances (CPGs).
Throughout the COVID-19 pandemic and related public health emergency (PHE), the US Department of Health and Human Services, Office for Civil Rights (OCR) issued four Notifications of Enforcement Discretion (referred to as “waivers”) designed to offer flexibility to healthcare providers battling the virus. On April 11, the OCR announced that these waivers will officially expire on May 11, 2023, in conjunction with the end of the PHE. While it is not unexpected that the OCR is pulling back these waivers, healthcare providers must ensure that their ongoing operations are fully compliant with the OCR’s HIPAA-related requirements. This blog post details the list of waivers issued by the OCR that will expire on May 11.
COVID-19 significantly affected home-based care providers, such as home health agencies (HHAs) and hospices, whose staff had to overcome both physical and mental burdens of going into patients’ homes to deliver care, especially in the days before a COVID-19 vaccine. While these providers benefitted from a number of Medicare program regulatory flexibilities during the public health emergency (PHE), virtually all of those will sunset on May 11, 2023.
The Consolidated Appropriations Act of 2023 (CAA), the massive $1.7 billion spending bill signed into law on December 29, 2022, had a number of important healthcare “gems” included. A critical provision for substance use disorder treatment providers eliminated the X-Waiver and thereby enhanced providers’ ability to prescribe buprenorphine to Opioid Use Disorder (OUD) patients.
DOJ’s False Claims Act 2022 Year in Review Shows Significantly Lower Recoveries in the Healthcare Industry
The US Department of Justice’s (DOJ’s) Civil Division released its annual fraud statistics on February 7, covering fiscal year 2022. Settlements and judgments under the False Claims Act (FCA) exceeded $2.2 billion in the fiscal year ending on September 30, 2022. Consistent with previous years, a significant portion of the recoveries related to the healthcare industry.
The Antitrust Division of the US Department of Justice has withdrawn three longstanding enforcement policy statements regarding the exchange of competitively sensitive information in healthcare markets, e.g., through market benchmarking surveys. While the recission of the guidance does not itself change the law on competitors exchanging competitively sensitive information through intermediaries, our antitrust and competition team explains how the move signals potential increased federal scrutiny of that practice.
Pressure continues to mount on the US Department of Health and Human Services (HHS) to reconsider and revise its August 2022 final rule modifying the No Surprises Act independent dispute resolution (IDR) process. The rule is an attempt to revise the original IDR process, which “placed its thumb on the scale” for payors, according to the February 2022 federal district court decision in Texas Medical Association v. US Department of Health and Human Services.
Another year has come to pass, and it seems the federal Public Health Emergency (PHE) will remain in place for at least the next five months. Why? As the US Department of Health and Human Services (HHS) has continuously pledged throughout the COVID-19 pandemic, the federal government intends to give states and healthcare providers at least a 60-day notice before terminating the PHE, which has granted significant flexibilities for furnishing healthcare services covered by Medicare, including in the context of telehealth. That 60-day notice period for the current PHE expiration date came and went on November 12 with no word from Secretary Xavier Becerra that the federal government would seek to wind down PHE flexibilities at the start of 2023. As a result, the PHE in all likelihood will be extended for an additional 90 days in early January 2023, for a revised expiration date of April 11, 2023.