By Kim Stanger

After three years, the federal public health emergency (PHE) will expire May 11, 2023.¹ Most of the relaxed regulatory and payor standards will end on or within a few months after the deadline, including many relating to:

• Federal subsidies for PHE-related services.
• Medicare coverage and/or the amount of reimbursement for certain services, especially COVID-related care and telehealth services.
• Medicaid coverage for COVID-related services.
• Flexibility on standards relating to patient stays (e.g., use of skilled nursing facility (SNF) beds for patients who do not meet SNF criteria; critical access hospital (CAH) 25-bed and/or 96-hour length of stay requirements; etc.).
• Facility safety, staffing, and operational standards.
• Use of alternative or expansion sites to provide care (e.g., Hospitals Without Walls Programs; use of other sites to render hospital services; etc.).
• Practitioner supervision requirements.
• Charges and cost-sharing amounts for certain services, including COVID testing.
• Prescribing controlled substances through telehealth services as otherwise governed by the Ryan Haight Act.
• Use of non-HIPAA compliant modalities to conduct telehealth visits.
• Stark, Anti-Kickback Statute, and Civil Monetary Penalties waivers concerning arrangements with physicians, patients, and other referral sources.
• EMTALA guidelines concerning directing patients to other locations.
• PREP Act liability protections.²

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By Kim Stanger

On January 13, 2022, a divided Supreme Court vacated the injunctions that applied to CMS’s vaccine mandate in 24 states, thereby allowing CMS to enforce its mandates in all states except Texas.¹ (https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf). Here are key points for providers seeking to comply with the mandate.

Deadlines for Compliance. The effective deadlines for compliance run from the date CMS issued its relevant compliance guidance to survey agencies. For facilities in states that were not subject to an injunction, CMS issued its guidance on December 28, 2021. (QSO-22-07-ALL, available at https://www.cms.gov/files/document/qso-22-07-all.pdf). For facilities in states that were subject to an injunction (i.e., Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming), CMS issued its updated guidance on January 14, 2022. (QSO-22-09-ALL, available at https://www.cms.gov/files/document/qso-22-09-all-injunction-lifted.pdf). As set forth in the guidance, the deadlines are as follows: Continue reading →

By Kim Stanger

Today, the federal district court in Louisiana issued a preliminary injunction staying the CMS vaccine mandate nationwide (except for the 10 states subject to yesterday’s injunction in Missouri). A copy of the Order is here. Continue reading →

By Curtis Greenwood and Mark Wiletsky

On October 25, 2021, the US Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance related to the COVID-19 pandemic by addressing questions regarding vaccine mandates and religious accommodations at a time when COVID-19 vaccination mandates are becoming more widespread. This expanded technical assistance provides important information for employers, employees, and applicants when navigating vaccine-related religious accommodation requests.

The EEOC enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination based on religion. Title VII provides a right for applicants and employees to request religious accommodation from employer requirements that conflict with their sincerely held religious beliefs, practices, or observances. If an employer can show that a religious accommodation would cause an undue hardship on its operations, the employer is not required to grant the accommodation. Continue reading →

Yesterday, the U.S. Food and Drug Administration (FDA) granted “full approval” to the Pfizer-BioNTech COVID-19 vaccine for individuals 16 years of age and older. In other words, the Pfizer-BioNTech vaccine (which will now be marketed as “Comirnaty”) has received the top level of clearance a medical drug can possibly obtain from the U.S. government. Many employers and healthcare providers are now wondering how this latest news affects them, particularly with regards to vaccination mandates. Continue reading →