Doctors across the country are encountering a minefield of legal risks as they navigate a post-Roe reality. In this Axios article, McDermott Partner Scott Weinstein offers perspective on the Health Insurance Portability and Accountability Act (HIPAA) and health information disclosure.
On August 19, 2022, the US Departments of Health and Human Services (HHS), Labor and Treasury posted a final rule revising portions of the federal No Surprises Act (NSA). Generally, the rule finalizes three aspects of the two-part interim final rule that the Departments published along with the Office of Personnel Management in 2021. First, the final rule expands the information about the qualifying payment amount (QPA) that plans and issuers (collectively, payers) must disclose to providers and facilities (collectively, providers). Second, it reinterprets the provisions of the NSA that govern the determination of the appropriate out-of-network rate through the federal independent dispute resolution (IDR) process, and prescribes how certified IDR entities are to weigh the QPA and other considerations when selecting one of the parties’ offers. The certified IDR entity must now consider the QPA first, and then give weight to other considerations only if those other considerations are not accounted for in the QPA. Third, the final rule expands the information that a certified IDR entity must provide in its written payment determination to include a statement explaining why the QPA did not already account for other considerations weighed by the IDR entity.
After almost a year of negotiations among congressional Democrats and the White House, the Inflation Reduction Act of 2022 (IRA) was signed into law by President Biden on August 16, 2022. It passed in the US Senate by a vote of 50–50, with the vice president breaking the tie, on August 7, 2022. The bill passed the US House of Representatives August 12, 2022, by a party-line vote of 220-207. This McDermott+Consulting article summarizes the key healthcare provisions of the IRA, including prescription drug reform, inflationary rebates, a cap on insulin costs, a Medicare Part D benefit redesign and a new pharmacy benefit manager rebate rule.
What should employers be telling workers about monkeypox? In this Fortune article, McDermott Partner Michelle Strowhiro said the first thing is to make sure workers properly understand the signs and symptoms of the viral disease.
“Now’s the time to evolve [your] COVID-19 policy into a greater safety policy that includes monkeypox, and covers the symptoms of monkeypox and protocols of what to do if you have symptoms or test positive,” Strowhiro said.
It was a busy end of August for abortion-related litigation in Texas. Multiple pro-reproductive justice nonprofit groups sued Texas Attorney General Ken Paxton and other prosecutors to protect the ability of pregnant Texans to obtain abortions in outside states, and Texas’ new trigger ban law went into effect. In this MedCity News article, McDermott Partner Caroline Reignley notes how the US Supreme Court’s landmark Dobbs decision “did not end the debate over abortion or limit court intervention.”
How can companies provide abortion travel benefits to their workers without disclosing sensitive medical information? In this Corporate Counsel article, McDermott’s Sarah Raaii provides insight into how the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA) offer protections for workers seeking reproductive healthcare services.
“The most common way that we’ve seen employers offering these abortion benefits is to include them in their existing ERISA health plans, in which case they [the plans] would be subject to HIPAA,” Raaii said.
On August 11, 2022, the Centers for Disease Control and Prevention (CDC) unveiled its updated COVID-19 guidelines, revising both quarantine and isolation guidelines in the process. The updates reflect the growing number of vaccinated individuals (meaning, those individuals who have received initial doses and all recommended boosters) and past exposures, leading to a greater level of herd immunity than in previous eras of the virus. These adjustments to the CDC’s guidance also serve, in large part, to clarify existing recommendations or to loosen restrictions. This article provides a closer look at what exactly the updated guidance requires and how to best approach these updates in the workplace.
How do organizations go about conducting a Health Insurance Portability and Accountability Act (HIPAA) security risk analysis (HRSA)? In this Health Law Weekly article, McDermott Partner Ryan S. Higgins provides a step-by-step guide to conducting an HRSA and offers practical guidance to address the key issues effectively.
What should company general counsels (GCs) know about abortion trigger bans, the Health Insurance Portability and Accountability Act (HIPAA) and how not to break the law in light of the new abortion landscape in the United States? In this MedCity News article, McDermott’s Sarah Raaii offers insight into how companies can protect abortion access for workers.
“One thing that GCs and employers should do is closely track any new state developments in a state you have business interests in,” Raaii said. “And if you have employees all over, unfortunately that could mean keeping track of 50 different states laws because it’s as simple as ‘this state does or doesn’t prohibit abortion,’ there’s different levels of protection.”
On August 4, 2022, the US Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking (NPRM or proposed rule) to reinterpret section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age or disability in a health program or activity, any part of which is receiving federal financial assistance. The proposed rule restores and strengthens certain civil rights protections under federally funded health programs and HHS programs which were limited following the 2020 Trump-era version of the rule, specifically regarding discrimination on the basis of sex, including sexual orientation and gender identity, and returns certain protections for individuals with limited English proficiency (LEP). Additionally, the proposed rule bolsters protections against discrimination in healthcare by clarifying that funds received under several federal healthcare programs, including Medicare Part B, are included in the definition of federal financial assistance under the law. As such, under the proposed rule, the list of entities expected to comply with the nondiscrimination measures outlined in Section 1557 of the ACA is significantly expanded, in many ways aligning with the 2016 Obama-era version of the rule. The NPRM also proposes to expand the applicability of the post-Bostock interpretation of “on the basis of sex” to Medicaid, Children’s Health Insurance Programs (CHIP) and Programs of All-Inclusive Care for the Elderly (PACE). For now, portions of the 2020 Final Rule not discordant with Bostock continue to apply.
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