High Healthcare Coverage Developments in 2023

The outcomes of the 2022 U.S. midterm elections—throughout which voters have been centered on the economic system, public security, and well being care and abortion points—can have longstanding penalties for the event of well being care coverage over the subsequent two years. With the U.S. Home of Representatives and U.S. Senate managed by totally different events, will probably be troublesome for Congress to come back to bipartisan settlement and go vital well being laws in the course of the 118th Congress. Consequently, the Biden Administration will concentrate on implementing laws for key legislative accomplishments and leveraging government and regulatory authority to advance coverage priorities, together with implementing the Inflation Discount Act, decreasing well being care and prescription drug prices for sufferers, and addressing well being fairness gaps throughout inhabitants teams. Contemplating the affect of the COVID-19 pandemic and anticipated unwinding of the general public well being emergency (PHE), considerations concerning well being care financing and Medicare Belief Fund solvency, and the acceleration within the adoption of well being data know-how and digitization in recent times, implementation of those coverage priorities can have a considerable affect on all stakeholders inside well being methods.

In 2023, we anticipate to see well being care coverage developments within the following key domains: reproductive rights and gender discrimination, well being information privateness, telehealth, and worth transparency.

Reproductive Rights and Gender Discrimination

Following the Supreme Courtroom’s choice in Dobbs v. Jackson Women’s Health Organization, federal companies have taken numerous actions to supply sources and steerage on well being information privateness in accordance with President Joe Biden’s executive order to help entry to reproductive well being care. In July, the Division of Well being and Human Companies (HHS) issued steerage and despatched a letter to well being care suppliers reminding them of their duties, regardless of conflicting state legal guidelines or mandates, to supply stabilizing medical remedy to pregnant sufferers beneath the Emergency Medical Therapy and Energetic Labor Act (EMTALA). HHS additionally issued guidance reminding retail pharmacies of their nondiscrimination obligations beneath Part 1557 of the Reasonably priced Care Act and directing pharmacies to not discriminate towards prospects on the idea of intercourse and incapacity (e.g., these in search of medicine abortion). Whereas the EMTALA steerage is at the moment being challenged in federal court docket, we anticipate the Administration to handle further points associated to reproductive well being care companies, together with state insurance policies affecting telehealth and journey restrictions for abortion. With out bipartisan settlement within the divided Congress, passage of wide-ranging abortion laws is unlikely.

Over the summer time, the HHS Workplace of Civil Rights (OCR) issued a discover of proposed rulemaking implementing Part 1557 of the Reasonably priced Care Act and establishing antidiscrimination necessities relevant to well being care entities. The proposed rule restores and strengthens sure civil proper protections beneath federally funded well being packages and HHS packages which have been restricted following the earlier variations of the rule, particularly concerning discrimination on the idea of intercourse, together with sexual orientation and gender identification. Notably, the proposed rule additionally addresses the applying of federal conscience and non secular freedom legal guidelines and establishes a course of to overview whether or not an entity is entitled to an exemption or modification of the 1557 laws primarily based on such legal guidelines. Feedback on the proposed rule closed in October, and we anticipate associated developments on laws addressing gender discrimination in federal well being packages.

Well being Knowledge Privateness

On account of the Dobbs choice, the Biden Administration additionally continues to subject laws to guard sufferers’ well being information privateness, together with reproductive well being data. In August, the Federal Commerce Fee additionally issued a discover of proposed rulemaking on the prevalence of business surveillance and information safety practices, together with within the well being care sector. Most not too long ago, the OCR issued a bulletin to stipulate the obligations of Well being Insurance coverage Portability and Accountability Act of 1996 (HIPAA) on regulated entities when utilizing on-line monitoring applied sciences and notably consists of a number of examples centered on defending reproductive well being data. Constructing on these actions, we anticipate federal companies to subject further steerage on the HIPAA privateness rule and defending reproductive well being care data.

Along with modifications in steerage to help reproductive well being care companies, HHS has additionally centered on enhancing entry to well being information, supporting care coordination, and enhancing interoperability by issuing a discover of proposed rulemaking that proposes to make sweeping modifications to laws at 42 C.F.R. half 2 (“Half 2”) governing the confidentiality of substance use dysfunction data. As we beforehand discussed, these modifications are supposed to align Half 2’s at the moment stringent guidelines extra carefully with well being data privateness guidelines promulgated beneath HIPAA and to enhance the power of entities topic to Half 2’s restrictions to make use of, disclose, and redisclose substance use disorder-related data. Regulatory motion on well being information privateness is being taken towards the backdrop of stalled Congressional negotiations on the American Knowledge Privateness and Safety Act (H.R.8152), which proposes to determine a nationwide information safety and digital privateness framework, in addition to different information privateness payments. Bipartisan lawmakers agree that further safeguards are wanted to guard customers’ on-line information, which signifies that we might even see legislative motion within the new Congress.


Relying on whether or not telehealth extensions are included within the fiscal yr 2023 appropriations laws, Congress might act to bolster federal help for telehealth and prolong sure Medicare telehealth flexibilities past the COVID-19 PHE. HHS not too long ago prolonged quite a few telehealth flexibilities within the 2023 Medicare Doctor Price Schedule Ultimate Rule for 151 days after the top of the COVID-19 PHE, in alignment with the Consolidated Appropriations Act, 2022. In July 2022, the Home of Representatives handed, 416-12, the Advancing Telehealth Past COVID-19 Act of 2021 (H.R.4040), which modifies the extension of sure Medicare telehealth flexibilities (i.e., waiving originating website restrictions; permitting audio-only protection; and increasing the checklist of telehealth practitioners) by means of December 2024. HHS will doubtless present further sources and steerage on telehealth, particularly concerning originating website and supply modality flexibility. In the course of the COVID-19 pandemic, members of Congress and the Biden Administration have acknowledged the significance of telehealth for offering continued entry to care, particularly for sure susceptible populations, and have expressed curiosity in increasing federal help for telehealth.

Value Transparency

In 2023, Congress and the Administration will proceed to advance worth transparency efforts and urge hospitals to adjust to the Hospital Value Transparency Ultimate Rule, which required hospitals to reveal their commonplace costs and make costs publicly obtainable for customers. In September, the HHS Workplace of the Inspector Basic (OIG) announced that it will overview the controls in place on the Facilities for Medicare & Medicaid Companies (CMS) and statistically pattern hospitals to find out whether or not CMS’s controls are adequate to make sure that hospital pricing data is available to sufferers as required by regulation. The findings of OIG’s overview are anticipated to be launched subsequent yr. On the Congressional facet, bipartisan leaders of the Home Power and Commerce Committee proceed to precise concern about hospital noncompliance with the ultimate rule. Committee leaders not too long ago despatched a letter to the Authorities Accountability Workplace requesting that it look at hospital compliance with the provisions of the Hospital Value Transparency Ultimate Rule along with CMS’s efforts to watch and implement hospital compliance.

In regard to the Administration’s worth transparency efforts, we additionally anticipate to see rulemaking from HHS, together with three different federal companies, on superior clarification of advantages and good religion estimate (GFE) necessities of the No Surprises Act after they’d issued a request for data in September. Most not too long ago, HHS announced that it will prolong past January 1, 2023 its enforcement discretion, pending future rulemaking, on the requirement that well being care suppliers make obtainable GFEs to uninsured and self-pay people when there are co-providers or co-facilities beneath the No Surprises Act.

Subsequent Steps

In collaboration with Crowell & Moring Authorities Affairs Group and Crowell & Moring Worldwide, Crowell Well being Options will look at the post-election panorama in well being care coverage on December 13 at 1:00 PM. We invite you to attend this webinar on what to anticipate in well being care in 2023 in Washington DC, throughout the U.S., and overseas and the way potential coverage modifications might affect your group. Register for the webinar here.

Crowell Well being Options is a strategic consulting agency centered on serving to shoppers to pursue and ship revolutionary alternate options to the standard approaches of offering and paying for well being care, together with by means of digital well being, well being fairness, and value-based well being care.

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