Midweek update

Midweek update

Section 1557 is the individual non-discrimination provision of the Affordable Care Act. In June 2020, the Department of Health and Human Services issued a final rule making numerous changes to the Obama Administration’s rule. Both rule makings sparked lawsuits challenging their legality.

Last time around, the lead case, Franciscan Alliance v. HHS, was filed in the Northern District of Texas. That case is still pending on appeal before the U.S. Court of Appeals for the Fifth Circuit.

This time around, the lead case, Whitman-Walker Clinic v. HHS, was filed in Washington, D.C. Roughly one month following oral argument in the case, U.S. District Judge James Boasberg this afternoon denied the plaintiffs’ motion for a preliminary injunction against enforcement of HHS’s revised Section 1557 rule with two exceptions:

  • The Court preliminarily enjoined the revised rule’s repeal of the sex discrimination definition found in the replaced Obama Administration rule. That definition afforded express protection to transgendered people.
  • The Court also preliminarily enjoined the revised rule’s religious organization exception to the law’s sex discrimination restrictions.

Here is a link to the lengthy yet illuminating opinion and the implementing order. The decision called to the FEHBlog’s attention another interesting civil rights provision of the ACA — Section 1554. This provision places limits on the HHS Secretary’s broad reaching regulatory powers under the ACA.

Judge Boasberg’s decision expands on the Brooklyn federal court decision issued August 17, 2020, that stayed enforcement of the sex discrimination definition repeal. While the federal government has not appealed the Brooklyn decision, the plaintiffs in the FEHBlog’s opinion are likely to appeal the denial of their preliminary injunction motion in the Whitman-Walker Clinic case. And so it goes.

The Centers for Medicare and Medicaid today released its final Medicare Part A inpatient prospective payment system rule for the government fiscal year beginning October 1, 2020.

The increase in operating payment rates for general acute care hospitals paid under the IPPS that successfully participate in the Hospital Inpatient Quality Reporting (IQR) Program and are meaningful electronic health record (EHR) users is approximately 2.9 percent. This reflects the projected hospital market basket update of 2.4 percent and a 0.0 percentage point productivity adjustment. This also reflects a +0.5 percentage point adjustment required by legislation.

Hospitals may be subject to other payment adjustments under the IPPS, including:

— Penalties for excess readmissions, which reflect an adjustment to a hospital’s performance relative to other hospitals with a similar proportion of patients who are dually eligible for Medicare and full-benefit Medicaid
— Penalty (1 percent) for worst-performing quartile under the Hospital-Acquired Condition Reduction Program
— Upward and downward adjustments under the Hospital Value-Based Purchasing Program

Medicare is one complicated program. Medicare is relevant to the FEHBP because the program impact the prices that FEHB plans pay for patient care and there is a large cadre of annuitant enrollees with Medicare Part A coverage.

In other healthcare related news —

  • Reuters reports that “President Donald Trump said on Tuesday he planned to meet with pharmaceutical companies this week regarding his so-called most- favored-nation executive order aimed at lowering drug prices paid by the U.S. federal government.”
  • STAT News reports that

A new analysis of several studies in which [inexpensive] steroid drugs were used to treat severely ill Covid-19 patients found the drugs significantly helped reduce patient deaths, bolstering earlier, preliminary evidence for the benefit of these medications. In multiple studies involving a total of 1,700 patients, a number of corticosteroids—anti-inflammatory drugs that can damp the effects of an overactive immune system—helped reduce deaths from Covid-19 by about a third, compared with patients who didn’t receive steroids, according to the analysis published Wednesday in the Journal of the American Medical Association.

  • HHS’s Office for Civil Rights, which enforces the HIPAA Privacy and Security Rules, has created a consolidate website regarding HIPAA and Health Apps. The site includes links to generally helpful technical information on cloud computing and HIPAA and HIPAA and health IT. Check it out.

Midweek Update

The Wall Street Journal reports this evening that “White House and Democratic negotiators emerged frustrated from their [latest COVID-19 relief bill} meeting Wednesday. White House officials said Democrats were dragging their feet on talks, and Democrats countered that Republicans were thinking too small.” “Absent an agreement [by this Friday, [Treasury Secretary Steven] Mnuchin said, “We’ll have to look at the president taking actions under his executive authority.”

On the vaccine front —

  • Kaiser Health News reports that obese people are less responsive to vaccines than other folks. ” Dr. Timothy Garvey, an endocrinologist and director of diabetes research at the University of Alabama, was among those who stressed that, despite the lingering questions, it’s still safer for obese people to get vaccinated than not. “The influenza vaccine still works in patients with obesity, but just not as well,” Garvey said. “We still want them to get vaccinated.” FEHBP plans typically offer effective coaching problems to help plan members with weight reduction.
  • On the brighter side, the Wall Street Journal reports that “Researchers and companies developing Covid-19 vaccines are taking new steps to tackle a longtime challenge: Those who need the vaccines most urgently, including Black and Latino people, are least likely to participate in clinical trials to determine whether they work safely.” Health plans may be able to offer support here to researchers.

Publicly traded healthcare companies have been report second quarter results recently. Healthcare Dive reports that “All of the nation’s largest insurers, Anthem, Centene, Cigna, Molina, UnitedHealth Group (which operates UnitedHealthcare) and CVS (which owns Aetna), all reported a surge in second quarter profits due to lower medical usage among members.” To the extent that these profits stem from health insurance premiums, the ACA’s requirement that health insurers rebate premium income when they fall below the minimum medical loss ratio threshold (80% for individual coverage and 85% for group coverage) is designed to prevent excess profits.

  • For more details on second quarter results CVS Health and Humana reported today. Becker’s Hospital Review inform us about other major insurer results here.

Forbes advises us that according to a recent study, deferral of care during the great hunkering down in March and April caused a concerning drop in new cancer diagnoses. “This report demonstrates that our initial response to the pandemic of limiting so-called elective screening and diagnostic tests has consequences,” said Craig Bunnell, MD, Dana-Farber Cancer Institute Chief Medical Officer. “The true incidence of these cancers did not drop. The decline clearly represents a delay in making the diagnoses, and delays matter with cancer,” Bunnell added. But physicians are keen to stress that for symptoms that cannot wait such as anything which might indicate cancer, people must not hesitate to seek medical care, despite the pandemic. “We need to safely perform these diagnostic tests and the public needs to not think of them as optional. Their lives could depend on them,” said Bunnell.

How true. Becker’s Hospital Review provides additional perspective on this issue by publishing a Census Bureau ranking of the states by the estimated percentage of deferred care due to the COVID-19 emergency.

Nationwide, 40 percent of Americans are still delaying care, according to a survey from the U.S. Census Bureau. The agency launched its Household Pulse Survey April 23, polling roughly 1 million Americans weekly on how the pandemic is affecting their household. Over the past 12 weeks, the percentage of U.S. adults delaying care has hovered around 40 percent with little fluctuation.

Finally, there was a big healthcare industry transaction announced today. STAT reports that “telemedicine provider Teladoc Health has reached an agreement to buy the diabetes coaching company Livongo in an $18.5 billion deal.” Both companies are publicly traded. The Wall Street Journal explains that

Under the deal, each share of Livongo will be exchanged for 0.5920 shares of Teladoc, plus cash consideration of $11.33 for each Livongo share. Upon completion of the merger, existing Teladoc shareholders will own 58% of the combined company, and existing Livongo shareholders will own 42%. The transaction is expected to close by the end of this year.

Weekend Update

The House of Representatives has joined the Senate in deciding to conduct legislative and committee business at least through the end of this week as Congress seeks to reach a compromise with the White House on another COVID-19 emergency relief bill.

Govexec.com reports that on Friday July 31 the House passed its second minimus appropriations bill (HR 7617) which includes financial services and general government appropriations for the next government fiscal year that begins on October 1, 2020. Surprisingly, the bill defers to the President on setting the civil service raise for the 2021 calendar year. The President has stated his plan to give the civil service a 1% increase across the board (meaning no increase in locality pay). The military is expected to receive a 3% increase in its pay for 2021.

Tomorrow at 2 pm Eastern, Federal District Court Judge James E. Boasberg will hear oral argument over the Whitman-Walker Clinic’s motion for a preliminary injunction to stay the upcoming effective date for the recently revised Health and Human Services Department final rule implementing the Affordable Care Act’s individual non-discrimination provision, Section 1557. The FEHBlog discovered on Friday that the public can call into listen to the hearing, and he will be doing so (as long as his schedule permits).

In other litigation news, Healthcare Dive reports that the U.S. Court of Appeals for the District of Columbia Circuit handed the American Hospital Association its second recent loss on Friday July 31. The Court upheld an CMS Medicare drug pricing rule affecting hospitals. “The 2-1 ruling overturns a district court decision that HHS overstepped its bounds when it cut the reimbursement rate for a certain category of outpatient drugs by 28.5% for hospitals enrolled in the 340B drug discount program.”

What’s more –

  • Pharmalive.com reports on large scale COVID-19 clinical tests which the National Institutes of Health is supporting. Fingers crossed.
  • NPR Shots discusses the importance of manufacturing transparent masks for protections against COVID-19:

At least one company — ClearMask, based in Baltimore — has gone so far as to seek and earn FDA “clearance” that its mask with a transparent panel is “substantially equivalent” to a medical-grade surgical mask for hospitals and other front-line uses. ClearMask’s founder and CEO Aaron Hsu says it took three years of research and development to develop a clear material that won’t fog up. “For a lot of children communication is nonverbal,” says Hsu. “Being able to see who we’re talking to is fundamental to how we communicate and connect.” [Of course the transparent masks also are helpful to disabled people who rely on lipreading and the elderly.] The company was started in 2017, he says, by four Johns Hopkins University students who identified the need for a niche medical product for deaf people. But now its appeal has gone global.”

  • Healio reports on the American Thoracic Society’s updated guidelines on smoking cessation which rely heavily on Pfizer’s Chantix / varenicline treatment over patches or bupropion. “Clinicians can begin varenicline treatment in tobacco-dependent adults who are not ready to discontinue tobacco use rather than waiting until they are ready to stop (strong recommendation).”

Weekend Update

Congress remains in session this week on Capitol Hill for legislative and committee business. The House passed its first appropriations minibus (HR 7608) last week. The FEHBlog expects the House to pass the next minibus (HR 7617) including FEHBP appropriations this coming week. Meanwhile, both Houses continue to work on another COVID-19 relief bill.

On Friday, the federal government filed its opposition to the Whitman-Walker Clinic’s motion for a preliminary injunction to stay the mid August effective date for the Trump Administration’s revised ACA Section 1557 rule. While the FEHBlog expected the government to pull back the rule in order to adjust it for the Supreme Court’s Bostock County decision, the government took the hang out route. The plaintiffs’ reply is due Wednesday July 29 and the oral argument on the motion will be held on Monday August 3 at 2 pm in the U.S. District Court for the District of Columbia. According to Katie Keith’s article on ACA litigation, posted last week, there are several other legal challenges pending against this rule.

The FEHBlog did virtually attend NCQA’s Digital Quality Summit last week. The FEHBlog was probably the only lawyer attending this conference, but the FEHBlog finds health care quality measurement fascinating (just like OPM). However, the FEHBlog just took a look at the speaker’s list and found out that one of the general session speakers is a sister at the bar. What do you know? The FEHBlog remains a firm believer in the FHIR API to facilitate health quality measurement. The FEAHBlog likes the lead in this FHIR website “Integrations don’t need to be complicated.”

In other news

Proponents of alternative payment models hope the pandemic will drive adoption of value-based arrangements down the line, as the financial pressures facing fee-for-service primary care practices have highlighted the shortcomings of paying for volume. There’s a dichotomy between fee-for-service practices, which have been staring at potential financial ruin since March, and those in alternative payment models, [e.g. direct primary care practices“}whose finances are in some ways insulated from the worst of the pandemic’s economic repercussions.

  • Health Payer Intelligence reports that

More than six in ten employers said that they would be partnering with their healthcare payer in the workplace transition back to the office, an Optum survey found. The survey revealed that only 16 percent of employers had achieved a full transition to the worksite. “Although almost all organizations appear committed to completing their transitions by early September, there will be a need for sustained employee well-being support well beyond the 90-day window,” the survey reminded.

  • Here’s a Forbes’s assessment of the President’s four executive orders issued on Friday in an effort to lower prescription drug prices. The international price index executive order is still not found on whitehouse.gov. What’s more, here is Avik Roy’s take on the executive orders.

Tuesday Tidbits

Good news! STAT News reports that “Moderna’s Covid-19 vaccine led patients to produce antibodies that can neutralize the novel coronavirus that causes the disease, though it caused minor side effects in many patients, according to the first published data from an early-stage trial of the experimental shot.” The FEHBlog will take it. What’s more, “The [Moderna] data roughly mirror the results from a similar vaccine being produced by Pfizer and BioNTech, which were released July 1.” Fingers remain crossed.

Healthcare Dive informs us about a FairHealth analysis which concludes that

The median charge for hospitalized COVID-19 patients aged 23-30 was about $35,000, while those aged 51-60 had median charges of about $46,000.
The most common other illness found in those patients is chronic kidney disease or kidney failure. Nationally, those patients accounted for 13% of all hospitalized COVID-19 patients during the study period from January to May. The second most common comorbidity in all but one region is Type 2 diabetes, according to the study that looked at private healthcare claims. The exception, the South, had hypertension in that rank.
The report also found the most common venue for an initial COVID-19 diagnosis nationally was a traditional doctor's office. About 33% of COVID-19 patients sought help from an office, while 23% went to an inpatient facility, such as an emergency room. In the Northeast, about 7% of COVID-19 diagnoses in that region came via telehealth appointments, versus 6.2% from ER visits.

The Health Affairs Blog provides details on how the COVID-19 virus impacts people differently when viewed from a racial or ethnic perspective. These disparities deserve the attention of the healthcare industry.

We used data from the Medical Expenditure Panel Survey to explore potential explanations for racial-ethnic disparities in coronavirus disease 2019 (COVID-19) hospitalizations and mortality. Black adults in every age group were more likely than whites to have health risks associated with severe COVID-19 illness. However, whites were older on average than blacks. Thus, when all factors were considered, whites tended to be at higher overall risk compared to blacks, with Asians and Hispanics having much lower overall levels of risk compared to either whites or blacks. We explored additional explanations for COVID-19 disparities, namely differences in job characteristics and how they interact with household composition. Blacks at high risk of severe illness were 1.6 times as likely as whites to live in households containing health-sector workers. Among Hispanic adults at high risk of severe illness, 64.5 percent lived in households with at least one worker who was unable to work at home, versus 56.5 percent among blacks and only 46.6 percent among whites.

FYI, HealthIT.gov reports that at the request of Congress the federal government “is investigating strategies to improve patient identity and matching. Stakeholder input and insight into existing challenges and promising innovations in patient identity and matching will inform [Office of the National Coordinator of Health Information’s] ONC’s report to Congress on technical and operational methods that improve patient identity and matching. We invite all stakeholders to submit comments to [email protected] by September 18, 2020.”

Supreme Court journalist Amy Howe reports that the U.S. Supreme Court has announced its oral argument calendar for October 2020. The calendar does not include the ACA constitutionality case, Texas v. California. The FEHBlog is willing to bet the ranch that the Supreme Court will uphold the ACA’s constitutionality (although it may remove the individual mandate from the statute which is what Congress intended when it zeroed out the individual mandate penalty).

In other litigation news, the FEHBlog discovered today that on August 3, 2020, at 2 pm, the U.S. District Court for the District of Columbia will hear oral argument on the Whitman-Walker Clinic’s motion to preliminarily enjoin enforcement of the recent HHS revised ACA Section 1557 rule. Section 1557 is the ACA’s individual non-discrimination provision. The FEHBlog is keeping an eye on this case.

Regrettably , Federal News Network reports that OPM has decided not to award any Presidential Rank award this year due to the disruptions created by the COVID0-19 emergency. The FEHBlog was honored ten years ago to participate in judging these awards. The FEHBlog was and remains very impressed by the work of the federal employees wh0 are nominated for these awards. Hopefully the awards which also were suspended for 2013 will return next year.

Friday Stats and More

This week’s chart of new COVID-19 cases (and deaths) is startling. Week 27 ended on July 9.


What strikes the FEHBlog is that the number of COVID-19 related deaths has remained stable over this time period. If the number of new cases is a leading indicator of deaths, then the number of deaths should have steadily increased following week 20. That hasn’t happened. Why you ask? In the FEHBlog’s opinion, the at risk folks have been taking effective protective measures, and the doctors have learned better approaches to treating the disease.

On the COVID-19 vaccine front —

  • Medcity News reports that Moderna is making progress with its vaccine studies. If the studies prove successful, “The company said that it is on track to provide about 500 million and potentially up to 1 billion doses of the vaccine annually starting next year.”
  • Fierce Pharma reports that “In separate interviews this week, Pfizer CEO Albert Bourla and BioNTech CEO Ugur Sahin said their mRNA vaccine candidate could be ready to submit to regulators in the fall or winter, respectively, pending success in a massive pivotal study yet to kick off.”

Fingers crossed.

Pharma Catalyst informs us that “more than 20 leading biopharmaceutical companies are launching the AMR Action Fund, a ground-breaking partnership to invest nearly $1 billion to ensure a robust and diverse pipeline of new medicines to treat drug-resistant infections.” That’s important too.

The Affordable Care Act created “grandfathered plan” status for electing employer sponsored plans. Grandfather status exempts the plan from many of the ACA mandates. The Obama Administration used its regulatory authority to minimize the availability of this exemption. The Kaiser Family Foundation reported last year that 13% of employees were covered under a grandfathered plan. Most of the grandfathering occurs in the midwest. That’s more than the FEHBlog expected to find. In any event, today the Trump Administration’s ACA regulators issued a proposed rule to create two new flexibilities that would help employers preserve grandfather plan status. Here’s a link to the FAQ on the proposed rule.

Thursday Miscellany

The Supreme Court wrapped up its October 2019 term today. Because it relates to the Affordable Care Act, the FEHBlog calls attention to the ever reliable and prodigious Katie Keith’s Health Affair’s blog post about yesterday’s Little Sisters of the Poor v. Pennsylvania decision. As Ms. Keith explains, this decision “was the third time in six years that the Supreme Court has ruled on the scope of the contraceptive mandate. This post recounts the history of the litigation, summarizes the decision, and discusses the impact of the ruling.” This decision has no impact on the FEHBP coverage of contraceptives. Enjoy your time off, Justices.

Also on the ACA front, Fierce Healthcare reports that

The Affordable Care Act’s insurance exchanges could add more than 1 million new members because of the COVID-19 pandemic.

The analysis released Thursday by Avalere attributes the spike to special enrollment due to massive job losses caused by COVID-19. The boost in customers could cause more insurers to return to a market they have left after financial losses over the past few years.

“With unemployment rates at or near 10% in almost all states, many consumers have been separated from their previous employer-sponsored plans,” the analysis said. “The economics of Medicaid eligibility in many states and the recent boost to unemployment assistance indicate that many are turning to the exchanges for coverage.”

On the COVID-19 vaccine development front,

At Fortune Brainstorm Health this week, there was lots of talk about the 200-plus efforts to find a COVID vaccine, and the extraordinary collaboration among companies and governments to get vaccines tested, manufactured and distributed—far faster than ever before. “We are taking what normally takes five to seven years, and doing it in five to seven months,” said Johnson & Johnson CEO Alex Gorsky. But Gorsky—whose company is one of the leaders in the vaccine race—also issued a strong warning to the group not to think of a vaccine as a silver bullet.

However, an effective vaccine certainly would be better than a poke in the eye with a sharp stick. Must everyone feel the need to dampen expectations?

  • In the same vein, Fierce Pharma discusses an internal CDC debate over what would be an effective COVID-19 vaccine.

One of public health’s greatest accomplishments was eradicating smallpox back in 1979. To eradicate SARS-CoV-2, the virus that causes COVID-19 illness, we’ll need a vaccine that’s 70% effective—and 70% of the population will need to receive it, an FDA vaccine official said Wednesday.

That’s a higher bar than the FDA set last week. To pass muster at the agency, a COVID-19 vaccine will need to be at least 50% more effective than placebo, according to new FDA guidelines.

  • It’s worth noting that the smallpox eradication effort began in the 1790s and that pharma is on course for more than one vaccine concoction for COVID-19 which should lead to broader efficacy, right?

On the OPM front,

  • Federal News Network informs us OPM will be proposing to anoint greater Des Moine, IA as the latest metropolitan area in which federal employees will receive locality pay. Congrats Hawkeyes. “OPM will also propose an expansion of the existing Los Angeles/Long Beach, California, locality pay area to include Imperial County, California.” The changes if (when?) finalized would be effective January 1, 2021, and
  • Fedweek reports on a recent OPM Inspector General report on OPM’s federal employee retirement services. The Inspector General compliments OPM for its process improvements.

Tuesday Tidbits

At today’s House Energy and Commerce Committee hearing on the COVID-19 emergency, Dr. Fauci, according to the Wall Street Journal, remarked that “he is ‘cautiously optimistic’ that a successful vaccine could be produced around the end of 2020. ‘I believe it will be when and not if,’ he said.” Amen to that. Here’s a link to today’s Senate Health Education Labor and Pension Committee’s hearing on the same topic.

The Labor Department’s Employee Benefit Security Administration issued a wide-ranging set of frequently asked questions on the health plan related provisions of the Families First Coronavirus Response Act and the CARES Act. Check it out.

Reuters reports on a sobering CMS study of the COVID-19 emergency on Medicare beneficiaries. ““The disparities in the data reflect longstanding challenges facing minority communities and low income older adults,” said Seema Verma, administrator of the Centers for Medicare & Medicaid Services (CMS).”

MedCity News informs us that “Clinical development will soon begin for an inhaled version of a [Gilead] antiviral drug {remdesivir} used to treat Covid-19 that is currently available only to hospitalized patients in intravenous form.” That’s a pro move.

Drug Channels offers its annual study of 2019 PBM drug spending reports.

The PBMs’ data highlight key trends about drug spending:
— For 2019, CVS and Express Scripts reported overall changes in drug spending that were in the low single digits. Prime reported mid-single-digit growth in overall drug spending.
— Spending growth on traditional drugs declined by mid-single digits for the third consecutive year. This decline came from deeper commercial rebates on brand-name drugs, ongoing deflation in generic drugs, and a small increase in the generic dispensing rates.
— The results for CVS and Express Scripts were comparable. For CVS Caremark’s commercial clients, net drug prices for traditional drugs declined by -6.3%, while utilization grew by 1.5%. For Express Scripts’ commercial clients, net drug prices for traditional drugs declined by -6.4%, while utilization grew by 1.4%.

In legal news

  • It was no surprise to learn from Politico that LGBTQ advocates already have brought a lawsuit against the Department of Health and Human Services (“HHS”) “over its rollback of LGBTQ patient protections, arguing that last week’s Supreme Court decision extending workplace legal protections to gay and transgender employees invalidates the new rules.” That should be a rollover win for the plaintiffs.
  • It was a pleasant surprise to learn that the U.S. District Court for the District of Columbia today ruled in favor of an HHS rule requiring hospital to disclose real prices, e.g, negotiated prices with health plans, for their services just like retail stores. The FEHBlog expects that this rule will lead to more and better (e.g., quality based) competition among hospitals. But first the decision will need to be affirmed by the Court of Appeals.

Monday Roundup

Health Payer Intelligence reports that “Major payers and payer organizations objected to the finalized HHS nondiscrimination rule—Affordable Care Act Section 1557—saying that the rule eliminates much of the specific language in the original rule, particularly relating to gender and sexual discrimination.” In that regard, this morning, per the Wall Street Journal, “The Supreme Court ruled that bedrock federal civil-rights law [Title VII of the Civil Rights Act of 1964] prohibits employers from discriminating against workers on the basis of their sexual orientation or gender identity, a decision that for the first time extends federal workplace protections to LGBT employees nationwide.”

The FEHBlog expects that this ground breaking Supreme Court decision will cause the Department of Health and Human Services to reconsider last Friday’s revised final Section 1557 rule either on its own initiative or upon a federal court order. That rule does not take effect until late August 2020.

In other news

  • The International Foundation of Employee Benefit Plans reports that the Centers for Medicare and Medicaid Services has created flexibilities to allow insurers to advance 2019 medical loss ratio rebates to individual policyholders. The 2019 medical loss ratio report normally would be due on June 30, 2020.
  • The American Hospital Association evaluates whether legislation or regulations can be used to extend various current telehealth flexibilities beyond the end of the COVID-19 emergency.
  • Govexec.com informs us that “Officials at the federal government’s 401(k)-style retirement savings program announced Monday that the Thrift Savings Plan has implemented provisions of the CARES Act coronavirus response package making it easier for participants impacted by the pandemic to access money in their accounts.” Here’s a link to this announcement.

Friday Stats and More

According to the CDC’s COVID-19 cases in the U.S. website, which the FEHBlog tracks, over the past four weeks the numbers of new cases had taken a downward path until this week. New deaths have seen consistent weekly reductions.

Week Ending5/225/296/56/12
New Cases155,596148,210142,829153,371
New Deaths8,1607,5616,5635,850

The Wall Street Journal report discussed in yesterday’s FEHBlog post suggested that we would see an uptick in new cases this week. Today, the Centers for Disease Control released COVID-19 considerations for events and gatherings as we emerge from the great hunkering down.

Today, the Department of Health and Human Services announced its revised final rule on Section 1557 of the Affordable Care Act which concerns individual non-discrimination. Here’s a link to the Department’s fact sheet. The 2016 final rule imposed extensive and expensive non-discrimination notice requirements on insured FEHB plans. The revised final rule scales down those requirements dramatically. What’s more the preamble to the revised final rule (p. 53) states

The Department continues to take the position that FEHB plans are not covered under this rule. Even if FEHB plans were considered “contracts of insurance,” as suggested by some commenters, they still would not fall under the scope of this rule because the contract would be with the Office of Personnel Management (OPM),which operates the FEHB Program, not with the Department. As noted above, this final rule does not extend the Department’s enforcement authority to a covered entity that is not principally engaged in the business of providing healthcare to the extent of its operations that do not receive financial assistance from the Department. The Department agrees that this final rule will accomplish the Department’s goal of reducing regulatory burden.

Being excepted from the HHS Section 1557 enforcement rule does mean that insured FEHB plans would not be subject to an HHS non-discrimination notice requirements. That status does not necessarily lead to the conclusion that FEHB plans are exempt from the statute. In any event, the revised final rule takes effect 60 days from publication in the Federal Register and you can expect federal court litigation over the revised final rule which likely would be reversed if we get a new President in 2021.

In other news —

  • Healthcare Dive reports on a recent study concluding that the air ambulance billing process is dysfunctional and produces big surprise bills. The article suggests that a federal surprise billing law is not in the offing but no one expect the counter productive ACA taxes to be repealed last year. Keep the faith.
  • Govexec.com reports on a GAO study finding that 60% of new hires left federal employment within only two years following hire during the years 2011-2017. Holy guacamole.
  • The Wall Street Journal reports that U.S. blood banks are “critically low.” “Covid-19 shutdowns have emptied community centers, universities, places of worship and other venues where blood drives typically occur.” Here’s a link to the American Red Cross blood donation site. This is a site worth promoting.