RISE summarizes recent regulatory-related news.

HHS extends COVID-19 PHE another 90 days

Xavier Becerra, secretary of the Department of Health and Human Services (HHS), has extended the COVID-19 public health emergency (PHE) another 90 days. Becerra renewed the PHE on July 15, which will allow most emergency waivers to remain in place through October.

HHS first declared COVID-19 was a PHE in January 2020 when the pandemic began, and it has been renewed each quarter since then.

The emergency declaration allows providers and health plans to respond to COVID-19 by taking advantage of flexibilities including the waiving of telehealth restrictions.

The latest renewal comes as COVID cases rise due to the contagious BA.5 variant, which spreads more easily than previous Omicron lineages, according to the Centers of Disease Control and Prevention.

HHS said it will provide states with 60-days’ notice before it terminates the PHE.

KFF report: Marketplace insurers propose 10% premium hikes for 2023 in 13 states and DC

new Kaiser Family Foundation (KFF) analysis of marketplace insurers’ early rate filings in 13 states and the District of Columbia finds that they are seeking higher premium increases than in recent years, largely due to rising prices paid to hospitals, doctors, and drug companies and increased use of services by enrollees.

The median proposed rate increase is 10 percent across 72 insurers in the markets reviewed, the analysis finds. Unlike in the past few years, few insurers (four of 72) are seeking to lower their rates, while eight are seeking rate hikes of at least 20 percent.

Insurers’ rate requests are preliminary at this point and may change during the review process before they are finalized in late summer.

Marketplace insurers include information about the factors affecting their rates for next year, and “trend” is the biggest factor, representing the combined impact of inflation (higher prices to providers and supplies for their rate changes) and utilization (increased use of services by enrollees). These factors are systemic and not specific to the Affordable Care Act’s marketplaces.

Other factors cited by insurers as affecting their rates include the COVID-19 pandemic, with some saying it would slightly increase their rates and others saying would slightly decrease them.

Some insurers cited the potential expiration of the enhanced premium tax credits included in the American Rescue Plan Act of 2021 as having a modest impact on their unsubsidized rates–though it would have a much larger impact on what enrollees themselves pay for coverage.

The law limited how much of their income low- and moderate-income enrollees would have to pay to purchase marketplace coverage, making coverage much more affordable, particularly for older enrollees in high-cost areas. Without those enhanced subsidies, the 13 million subsidized enrollees would see their premium payments increase by an average of 53 percent, KFF said.

Texas sues HHS over emergency abortion guidance

Texas Attorney General Ken Paxton has filed a lawsuit against the Department of Health and Human Services (HHS) after the federal government issued guidance that providers must offer abortions in emergency situations. HHS published the guidance in the wake of the Supreme Court’s decision in June to overturn the constitutional right to abortion.

HHS said that the Emergency Medical Treatment and Active Labor Act (EMTALA) preempts state law and protects providers when they offer legally mandated, life- or health-saving abortion services emergencies. In the complaint, Paxton said the Biden administration is attempting "to use federal law to transform every emergency room in the country into a walk-in abortion clinic.” He claims that EMTALA doesn’t and never has authorized the federal government to compel health care providers to perform abortions. Texas has banned abortion after six week’s gestation since September. White House Press Secretary Karine Jean-Pierre released a statement in response to the lawsuit slamming it as “example of an extreme and radical Republican elected official. It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”

CMS issues proposed 2023 rule for hospital outpatient and ambulatory surgical center services

The Centers for Medicare & Medicaid Services (CMS) last week published the 2023 Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System Proposed Rule.

Comments will be accepted through Sept. 13 and the final rule will be issued in early November.

Among the proposals:

  • CMS intends to update OPPS payment rates for hospitals that meet quality reporting requirements by 2.7 percent
  • CMS proposes to consider all covered outpatient department services or services that otherwise would be paid under OPPS in rural settings as Rural Emergency Hospital (REH) services
  • REHs would be paid at a higher rate that is equal to the OPPS payment rate for the equivalent covered outpatient department service increased by 5 percent
  • CMS plans to use calendar year 2021 claims data with cost report data through calendar year 2019 (prior to the public health emergency) to set 2023 OPPS and ASC payments
  • CMS proposes to continue payment for remote behavioral health services provided by clinical staff of hospital outpatient departments after the expiration of the COVID-19 public health emergency
  • CMS plans to provide additional hospital payments under OPPS to account for additional costs to purchase domestically made NIOSH-approved surgical N95 respirators

“The proposals in this rule, if finalized, will expand access to care options in rural communities and permanently allow behavioral health services to be provided to people in their homes,” said CMS Administrator Chiquita Brooks-LaSure in an announcement about the proposed rule. “We are also proposing to adjust payments to account for the cost of domestically made surgical N95 respirators to ensure that hospitals and their health care workers are ready for the next pandemic.”