The regulatory and procedural wheels have continued to churn in HHS and Congress as the Biden administration moves beyond the first 100 days in office. In this edition of Weekly Line, I'll explore the four key policy and legal moves you don't want to miss.
A regulation to revisit: CMS is taking a closer look at hospital price transparency
CMS in April began auditing hospital websites amid recent reports that hundreds of hospitals are not complying with federal price transparency regulations that took effect January 1st. While the agency is not yet penalizing hospitals for non-compliance, now is the time to dot the I's and cross the T's. A recent Advisory Board analysis found even hospitals that took significant steps toward compliance—such as posting machine-readable files of payer-specific negotiated rates and making available either a separate consumer-facing file or tool for more than 300 shoppable services—made errors or missed key elements that could jeopardize their compliance.
CMS said it is sending warning letters to hospitals that are not in compliance with rules, giving hospitals 90 days to address the problems. Hospitals that are still noncompliant after 90 days will get a second letter or a corrective action plans before any heavier penalties are levied. Hospitals could eventually face fines up to $300 per day and have their noncompliance made public by CMS.
A hospital-led lawsuit to watch: Hospitals in non-expansion states sue HHS over DSH payments
Thirty-two hospitals located in Alabama, Florida, Georgia, Texas, South Carolina, North Carolina, Oklahoma, Tennessee, and Missouri—all states that have not expanded Medicaid under the Affordable Care Act (ACA)—have filed a lawsuit against HHS over Medicare Disproportionate Share Hospital (DSH) payments. The hospitals argue that under the ACA, individuals with incomes up to 133% of the federal poverty level should be regarded as low-income patients when determining hospitals' Medicare DSH adjustments, regardless of whether their state expanded Medicaid.
While this is not a new issue for hospitals in non-expansion states, the timing of the lawsuit is interesting, given that the Biden administration has positioned Medicaid expansion as a priority for reducing the uninsured rate. The hospitals in the lawsuit said they petitioned former HHS Secretary Alex Azar but in December received a letter that did not resolve the problem.
A health equity policy shift to note: HHS restores protections for LGBTQ+ patients
HHS' Office of Civil Rights (OCR) is once again banning discrimination on the basis of sexual orientation or gender identity, citing a 2020 Supreme Court ruling that found an employer cannot fire an individual for being LGBTQ+. The decision restores an Obama-era policy which interpreted the ACA's prohibition against sex discrimination in health care to include "gender identity" discrimination. OCR under former President Trump ended the policy for LGBTQ+ people.
The decision, which is expected to face legal challenges, doubles down on Biden's campaign promises to restore protections to the LGBTQ+ community and follows his executive order reversing a Trump-era policy that barred transgender individuals from serving in the military.
A confirmation (and nomination) to watch: Senate moves on HHS and CMS nominees
The Senate this week voted 61-37 to confirm Andrea Palm as HHS deputy secretary. Palm previously led the Wisconsin Department of Health Services and has held leadership positions within HHS during the Obama administration. As deputy secretary, Palm will be responsible for managing the operations of the department and will be involved in the development and approval of all regulations.
Meanwhile, Chiquita Brooks-LaSure, Biden's pick for CMS administrator, could soon come for a final Senate vote after the upper chamber held the first of two procedural votes on Wednesday.