Must Read: State and Federal Legislative Updates

To provide a No Surprises Act update, the Centers for Medicare & Medicaid Services (CMS) new Independent Dispute Resolution (IDR) guidelines face backlash from medical societies representing radiology, emergency medicine, and anesthesiology, with the groups claiming in a statement that the agency’s new guidance expands the “already significant discretion” health plans have in calculating the qualifying payment amount (QPA). One example of the current confusion is that although a recent court case (the Texas Medical Association’s third lawsuit) requires certain changes to the QPA methodology. The government is appealing the ruling, and, in the meantime, does not intend to give plans guidance on how their QPA methodology should change following the most recent litigation. The government reports that it will exercise enforcement discretion on QPA calculations until mid-2024.  

Next, is 2024 the “Super Bowl for Telehealth” in Washington, D.C.? The Drug Enforcement Administration (DEA) has extended pandemic rules for telehealth prescribing of controlled substances until the new year, while many other COVID-19-era flexibilities are set to expire during the year without further action. The DEA’s extension comes as telehealth leaders and doctors have repeatedly urged the DEA to allow prescribing via virtual care, arguing that mandates requiring in-person doctor visits for patients to get prescriptions for controlled drugs restrict access to care and could endanger patients. More than one in five U.S. households had a virtual visit during a four-week period in mid-2022, according to federal data.

In other national news, also set to expire next year is the High Deductible Health Plan and Health Savings Account telehealth tax provision, geographic and originating site flexibilities, and the delay of implementing several Medicare face-to-face telehealth requirements.

Next, the Federal Trade Commission (FTC) announced a proposed rule that prohibits what the Biden Administration calls “junk fees.” The new proposed rule would require businesses to include all mandatory fees when advising consumers of their prices, even in advertising, which makes shopping around easier. The agency will soon seek comment on the proposed rule and has prepared a list of 37 questions for consideration and review. Simultaneously, the Consumer Financial Protection Bureau issued an advisory that prohibits banks and credit unions from charging fees in order for people to get basic information about their accounts.

Next, a recent U.S. Senate committee staff analysis found that six major nonprofit hospital chains spent less than 1 percent of their total revenue on charity care. The American Hospital Association (AHA) countered the study results with their own, reporting that tax-exempt hospitals provide about 15 percent of their total expenses to communities. Additionally, the AHA argued that the Senate analysis only considered “charity care” while excluding other community services like patient financial aid, health education programs, and housing assistance.

In state news, New York finalized regulations that require the inclusion of a Health Equity Impact Assessment as part of the certificate of need (CON) process. The assessment must demonstrate how a proposed facility project affects the accessibility of healthcare to promote equity and mitigate health disparities. Generally, CON processes are required to open, expand, or alter healthcare facilities within a state. In contrast to this expansion of New York’s CON program, many states have made moves to either repeal or at least narrow their CON statutes.

A total of 35 states and D.C. maintain some sort of CON program currently, while 12 states have fully repealed their CON program. New York’s new assessments will need to be conducted for entity mergers, consolidations, acquisitions, new entities, changes in ownership, and more. Facilities impacted include hospitals, skilled nursing facilities, clinics, and ambulatory surgery centers.