Legislative Weekly

1/22/2024

CONTENTS

1. No Surprises Act (NSA) and Transparency Rules (TinC)
2. DC and Federal Update
3. State Activity

HIGHLIGHTS: No transparency law out of Congress…yet; CMS requires electronic prior authorization and APIs for regulated plans; No regulation on AEOB planned for 2024; SCOTUS could make it easier to challenge regs; 16th state (NJ) passes consumer data privacy law; CA takes a step back on healthcare minimum wage law.

No Surprises Act (NSA) and Transparency Rules (TinC)

No healthcare transparency legislation from Congress this month: Faced with government shut down looming this Friday, Congressional leaders have come up with a new stopgap plan – yet to be passed – that pushes the deadline for Congress to come up with a budget until March 1 and March 8.

• The stopgap measure does not contain provisions related to healthcare price transparency or Medicare physician reimbursement rate cuts, both of which were expected to be a have another chance of passing in the weeks leading up to March.
• The 3.4% cut to Medicare physician reimbursements took effect Jan. 1, and physicians have been desperately trying to convince Congress to reverse it, saying it will endanger patient access.

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CMS finalized a new rule on prior authorization this week, requiring the turnaround time federally regulated health insurers have to respond to a request to 72 hours for urgent conditions and 7 calendar days for non-urgent conditions.

• Payers will now also have to provide a specific reason for denying a prior authorization request. ?
• The rule also requires plans to maintain a Provider Access API and a Payer-to-Payer API for claims data. Read the text of the rule here (although we must warn you-it’s 822 pages) and the accompanying CMS Fact sheet here .

?DC and Federal Update

The Biden Admin has released its fall 2023 Unified Agenda (UA), which lists the regulations the gov’t expects to publish in the coming years. According to the UA, the gov’t expects to publish:

• A 6/2024 final rule on adoption of standards for healthcare claims/attachment transactions and electronic signatures;
• A 9/2024 final rule on health plan reporting of information regarding air ambulance services; and
• A 9/2024 proposed rule on modifications to the HIPAA Security Rule to strengthen the cybersecurity of electronic protected health information.

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Notably, the UA indicates that the gov’t does not plan to publish any rules on the NSA’s Advanced Explanation of Benefits (AEOB) or Good Faith Estimate (GFE) provisions. The previous UA (Spring 2023) announced an AEOB rule would be published in 2024, but it doesn’t look like that’s going to happen.

This week, the Supreme Court heard arguments on a set of cases that could upend how one argues against healthcare regulations … and all regulations in general. Being challenged: The 1984 Chevron decision that said that federal gov’t agencies – not the courts – should be principally responsible for interpretation of laws passed by Congress. Under Chevron, courts should defer to agency interpretations of statutes.

• If SCOTUS were to overturn Chevron, parties that were opposed to certain regulations would be more likely to win in court since a gov’t agency’s interpretation would no longer be given deference.???

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Hospitals and providers are weighing in in support of the lawsuit filed by the AHA over HHS guidance that bars hospital websites from using tracking cookies to monitor user habits online. ?

• The guidance does not cover all activities on a hospital/health system website, instead only forbidding use of trackers from companies like Google, Amazon, and Meta that track users on public-facing pages.
• HHS has stated that its intent with the guidance is to protect PHI of patients, while AHA argues that the document limits hospitals’ ability to track public health concerns, adjust their information and services based on public need, and is a bit of hypocrisy from the Biden administration since it uses the technology on some of its own websites.

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According to new data published by the American Hospital Association (AHA), Medicare reimbursement to hospitals fell to a record low in 2022.

• According to AHA’s analysis, Medicare paid 82 cents for every dollar hospitals spent on care for Medicare patients in 2022, while Medicare underpayments to hospitals hit $99.2B in 2022, nearly 2.5 times the amount ten years earlier in 2012.

State Activity

New Jersey is the latest state to pass a consumer data privacy law, with Governor Murphy signing companion bills A1971/S332 following a lengthy legislative process that started over 2 years ago.

• This brings the total number of states that have some form of comprehensive consumer privacy legislation up to 16.
• While states are quickly passing their own laws, bipartisan members of Congress are pushing for a national consumer data privacy law. However, according to Roll Call, it is doubtful Congress will have time to pass it in 2024.
• In general, these state consumer data privacy laws do not apply to healthcare privacy issues that are already regulated under HIPAA. However, HIPAA only applies to a relatively narrow set of HIPAA-covered entities.

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California’s $38B projected budget deficit has led Governor Newsom to request changes to a bill establishing a $25 minimum wage for healthcare workers that he signed just three months ago. The changes would delay the increase for half a million employees.

This update is solely for informational purposes and should not be relied upon as legal advice.????????