HHS Proposes Rule Strengthening Section 1557 Protections Against Nondiscrimination in Health Activities

diverse group of people

On Aug. 4, the Department of Health and Human Services (HHS) published its proposed rule, Nondiscrimination in Health Care and Activities (Proposed Rule), to revise its regulations pertaining to Section 1557 of the Affordable Care Act (ACA). The aim of Section 1557 is to ensure access to health care and coverage in certain health programs or activities. The Proposed Rule aims to realign the scope of Section 1557 — which has been subject to several regulatory changes, interpretations and litigation throughout several presidential administrations — with the underlying statutory and regulatory intent, after the 2020 Final Rule regarding Section 1557 was limited in its reach following challenges to the regulation in litigation.

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DOJ Alleges Idaho Abortion Law Violates EMTALA

emergency room emtala

On Aug. 2, the U.S. Department of Justice (DOJ) filed suit against the state of Idaho to block a state abortion law set to take effect on Aug. 25, claiming that it violates the federal Emergency Medical Treatment and Labor Act of 1986 (EMTALA).

Under EMTALA, a hospital that receives Medicare funds must provide treatment to patients who present to the hospital’s emergency department with an “emergency medical condition.” The DOJ explains that “emergency medical conditions” under EMTALA “include not just conditions that present risks to life but also those that place a patient’s ‘health’ in ‘serious jeopardy’ or risk ‘serious impairment to bodily functions’ or ‘serious dysfunction of any bodily organ or part.’”

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HHS and DOJ Issue Joint Guidance on Nondiscriminatory Telehealth Practices

father daughter cell phone telehealth

To coincide with the 32nd anniversary of the Americans with Disabilities Act (ADA), the Department of Health and Human Services Office for Civil Rights (OCR) and the Department of Justice’s Civil Rights Division (CRT) jointly issued Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons (Guidance) on July 29, 2022, as part of their continued commitment to ensuring that telehealth is accessible in a nondiscriminatory manner.

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HHS, DOL and Treasury Say Limiting Birth Control Coverage Violates Federal Law

Woman taking out a morning after pill from her handbag

Authored by: Amy E. Fouts (Partner) and Claire M. Bass (Associate)

On July 28, U.S. Department of Health and Human Services (HHS), alongside the Department of Labor (DOL) and the Department of Treasury, warned that limiting coverage of contraceptives following the U.S. Supreme Court ruling in Dobbs violates the Affordable Care Act (ACA).

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HHS Letter to Healthcare Providers About Emergency Medical Care

On Monday, July 11, 2022, the secretary of Health and Human Services (HHS) issued a letter to healthcare providers regarding the Emergency Medical Treatment and Active Labor Act (EMTALA), indicating that when a state law prohibits abortion and does not provide an exception that aligns with EMTALA’s emergency medical condition definition, that state law is preempted.

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Please visit the BakerHostetler Post-Roe Resource Center or contact the BakerHostetler Dobbs Decision Task Force for ongoing updates and information.

Stark and AKS Rules Cross the Finish Line of HHS Regulatory Sprint

With a bold finish, the Department of Health and Human Services (HHS) crossed the finish line of its race to modernize and clarify the regulations interpreting the federal physician self-referral law (Stark) and anti-kickback statute (AKS) through final rules released Nov. 20, 2020. With one exception, the Stark and AKS rules, based on October 2019 proposals, are effective on Jan. 19, 2021 – the day before the presidential inauguration. A separate AKS rule released the same day revises the discount safe harbor and creates new safe harbors focused on pharmaceutical distribution models. This rule follows a February 9, 2019 proposed rule and a July 24, 2020 Executive Order directing that HHS complete the rulemaking.

Through its Regulatory Sprint to Coordinated Care, HHS has acted to support innovative arrangements to improve quality outcomes, produce health system efficiencies, lower costs and promote care coordination, with an overarching goal of transforming the healthcare system into one that better pays for value. The Centers for Medicare & Medicaid Services (CMS) and the Office of the Inspector General (OIG) coordinated closely on the rules, which finalize proposed protections for value-based arrangements, with some modifications, and also clarify and revise existing Stark and AKS requirements that are viewed as barriers to coordinated and value-based care or that simply cause undue confusion and burden. The OIG additionally acknowledged that these “[f]lexibilities to engage in new business, care delivery and digital health technology arrangements with lowered compliance risk may assist industry stakeholders in their response to and recovery from the current public health emergency resulting from the [COVID-19] pandemic.” Continue Reading

Capitol Hill Healthcare Update


Congressional approval last week of emergency spending to address the coronavirus hasn’t allayed Capitol Hill’s concerns about preparedness and response as the impact of the virus in the United States rapidly escalates.

Two lawmakers – Sen. Ted Cruz, R-Texas, and Rep. Paul Gosar, R-Ariz. – announced this weekend that after interacting with an individual last week who later tested positive for COVID-19, they were taking precautionary measures and would not be in Washington this week. The No. 3 elected House Republican, Rep. Liz Cheney, R-Wyo., was absent from a GOP retreat in Maryland this weekend because she wanted to limit participation in nonessential gatherings.

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Capitol Hill Healthcare Update


Health and Human Services Secretary Alex Azar faces a marathon week of testimony, appearing before four congressional committees to discuss his department’s fiscal 2021 budget.

In addition to funding issues, Azar is likely to face questions on the federal government’s response to the coronavirus outbreak. Last week 25 Senate Democrats wrote to Azar, pressing the administration to request emergency funding.

Lawmakers are likely to grill Azar on prescription drug pricing and the administration’s approach to addressing costs. Democrats also are expected to criticize the administration’s actions regarding Affordable Care Act implementation.

Azar will testify Tuesday before the Senate Appropriations Subcommittee that funds HHS, then Wednesday in the House Appropriations Subcommittee. The secretary will go before the House Commerce Health Subcommittee on Wednesday, where he will discuss the budget and HHS’s response to the coronavirus.

Finally, Azar will testify Thursday at the House Ways and Means Committee.

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Capitol Hill Healthcare Update


Legislation to address surprise medical bills is moving forward this week, as two House committees mark up their own plans to protect patients.

After progress stalled at the end of last year, the House Ways and Means Committee jump-started it by announcing it would move forward with its proposal. The committee plans to take up the bipartisan bill Wednesday.

Tuesday, the Education and Labor Committee will enter the fray with its own bill. Chairman Bobby Scott, D-Va., and Ranking Member Virginia Foxx, R-N.C., released the proposal last week.

The key point of contention among the different plans is the mechanism used to resolve billing disputes. The Ways and Means approach relies on independent arbitration when insurers and providers cannot negotiate a solution on their own. A bipartisan agreement by the House Energy and Commerce and Senate Health, Education, Labor and Pensions committees uses a benchmark payment rate. The new Education and Labor proposal appears to hew more closely to the Energy and Commerce approach.

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Capitol Hill Healthcare Update


Legislation to address unexpected bills for out-of-network medical care appears to be making a comeback, after a committee turf battle stalled its progress at the end of last year.

House leaders want to pass a bill by May, when they intentionally created a deadline for several popular health programs that will need congressional reauthorization. Leaders hope to drive action on surprise billing and prescription drug costs in May.

House Ways and Means Chairman Richie Neal, D-Mass., plans this week to release his committee’s bipartisan legislation. Neal says the committee will vote on its bill Feb. 12. The plan relies on outside mediation to settle billing disputes; a competing plan from the House Energy and Commerce Committee uses a benchmark payment rate.

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