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Biden Administration Throws Down Its First Gauntlet on 340B
May 18, 2021 | Blog
On May 17, 2021, the Biden Administration took its first major action impacting the 340B Drug Discount Program. In a forceful statement, the Administration made plain its views on a major controversy that has pitted drug manufacturers against 340B covered entities for the past year - proclaiming that drug manufacturers are violating the 340B statute by restricting covered entity access to 340B discounts for drugs dispensed through 340B contract pharmacies.
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Fourth Time’s the Charm? How COVID-19 May Spur Congress to Pass Legislation Expanding Coverage for Pharmacist Services
May 12, 2021 | Blog | By Hassan Shaikh, Theresa Carnegie
On April 22, 2021, Reps. G.K. Butterfield (D-NC) and David McKinley (R-WV) introduced H.R. 2759, or the Pharmacy and Medically Underserved Areas Enhancement Act. Its introduction marks a fourth bipartisan effort in the House to enact the legislation, which would allow Medicare to directly reimburse pharmacists for delivering certain health care services to Medicare beneficiaries living in areas with limited access to primary medical care. Hindsight suggests that when introduced in the past, the Act may not have been ripe for consideration. But now, in the wake of the COVID-19 pandemic and on the heels of successful initiatives like the West Virginia vaccine rollout, Congress may not wish to table discussion of the legislation any longer.
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Massachusetts Public Health Council Approves Amendments to Clinic Licensure Regulations
May 11, 2021 | Blog | By Daria Niewenhous, Cassandra Paolillo
On April 28, the Massachusetts Public Health Council (“PHC”) approved final proposed amendments to the clinic licensure regulations. The amended regulations include changes related to serious reportable events, mobile sites, mental health and substance use disorder services, among other updates. The final regulations, which we've summarized here, are expected to be published in the May 14, 2021 Massachusetts Register.
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The American Families Plan & A Call for Drug Pricing Legislation
May 10, 2021 | Blog | By Theresa Carnegie, Cody Keetch
On April 28, 2021, President Biden gave his first address to Congress and announced the American Families Plan (AFP). The AFP follows the 1.9 trillion-dollar stimulus, the American Rescue Plan Act, signed into law on March 11, 2021. Notably, in his speech, President Biden called upon Congress to pass drug pricing legislation; however, the current White House Fact Sheet on the AFP does not include specific drug pricing provisions. This blog post discusses the health-related portions of the AFP and provides an overview of the Lower Drug Costs Now Act which seeks to lower prescription drug prices.
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The Ongoing US Vaccine Passport Debate
April 29, 2021 | Blog | By Lara Compton, Bridgette Keller
One main principle among public health measures is to use the least restrictive method necessary to protect the population, or to do the greatest good. From the public health perspective, requiring COVID status credentials (“Credentials”) makes sense because it allows people who present a low risk to others to not be subject to unnecessary restrictions. However, implementation and use of Credentials will require careful consideration of individual privacy concerns, as well as the ethical questions related to access and additional privilege.
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FTC Engages in First Enforcement Action under COVID-19 Consumer Protection Act
April 27, 2021| Blog|
FDA Reverses 11th Hour HHS Action to Exempt Certain Devices from 510(k) Premarket Requirement
April 20, 2021 | Blog | By Benjamin Zegarelli
On April 16, 2021, Food and Drug Administration (FDA) published twin notices in the Federal Register effectively reversing a move by the Trump administration Department of Health and Human Services (HHS) on January 15, 2021 purporting to exempt 91 medical device types from the premarket notification requirement under Section 510(k) of the Federal Food, Drug, and Cosmetic Act. HHS’s actions on January 15, signed by then-HHS Secretary Alex Azar, sought to make permanent FDA’s grant of temporary enforcement discretion for the 91 device types for the duration of the COVID-19 public health emergency.
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Application Window for Round 2 of FCC's $250 Million COVID-19 Telehealth Program Opens April 29, 2021
April 19, 2021 | Blog | By Angela Kung
The Federal Communications Commission (FCC) released a Public Notice announcing that the application filing window for Round 2 of its COVID-19 Telehealth Program will run for seven days starting April 29, 2021. The application portal will open at noon ET on Thursday, April 29, and close one week later at noon ET on Thursday, May 6. Round 2 of the FCC's COVID-19 Telehealth Program will make an additional almost $250 million available to fund telehealth and connected care services provided by eligible providers during the ongoing COVID-19 pandemic.
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Medicaid Under the Biden Administration: The American Rescue Plan Act
April 15, 2021 | Blog | By Stephnie John
As we previously reported, President Biden signed into law a $1.9 trillion dollar stimulus bill, the American Rescue Plan Act (ARPA). This historic legislative package provides much needed relief to millions of Americans impacted by the COVID-19 pandemic and essential resources to address the ongoing public health emergency. Among other things, the ARPA allocates funds to the Department of Health and Human Services (HHS) for COVID-19 testing, contract tracing, vaccines, supplies, and other related treatment. To alleviate the strain of the COVID-19 pandemic on America’s public health care system, it includes funding for rural health providers, community health centers, and skilled nursing facilities, and makes important modifications to the Medicare and Medicaid programs. This post summarizes the Medicaid provisions contained in the ARPA and their proposed changes to the Medicaid program.
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FCC to Award Additional $249+ Million in Funding for COVID-19 Telehealth Program
April 6, 2021 | Blog | By Angela Kung
On March 29, 2021, the Federal Communications Commission (“FCC” or “Commission”) adopted an Order establishing rules and procedures for Round 2 of the COVID-19 Telehealth Program (the “Program”) to continue supporting telehealth services, which have proved to be so vital during the COVID-19 pandemic. In a News Release accompanying the Order, FCC Acting Chairwoman Jessica Rosenworcel highlighted that “[t]his past year has proven, without a doubt, that telehealth technology is critical to helping address inequities in access to health care services” and that Round 2 of this program will help address these challenges “head on.”
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Health Care Enforcement Update: Covid-19 Fraud Cases Brought By DOJ And Private Plaintiffs
March 31, 2021 | Blog | By Grady Campion, Jane Haviland, Karen Lovitch
On Friday, March 26, 2021, the Department of Justice (DOJ) announced an update on its efforts to combat COVID-19 related fraud. Since Congress first responded to the coronavirus pandemic by passing $2.2 trillion in relief through the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, DOJ has pursued civil and criminal actions primarily targeting (1) fraudulent COVID-19 related tests or treatments, and (2) abuse of the CARES Act’s popular Paycheck Protection Program (PPP). Friday’s announcement revealed that DOJ is also ramping up its efforts to prosecute fraud on the CARES Act’s Economic Injury Disaster Loan (EIDL) and Unemployment Insurance (UI) initiatives.
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Telehealth Update: States Move to Permanently Expand Access to Telehealth
March 30, 2021 | Blog | By Cassandra Paolillo, Ellen Janos
Over the past year the telehealth landscape has been a patchwork of temporary waivers and regulations, expanding access during the COVID-19 pandemic but leaving providers and patients uncertain about whether the positive coverage and reimbursement changes and relaxation of pre-pandemic restrictions would continue in the future. In recent weeks, we have seen a number of state actions making permanent changes to expand access to telehealth. These changes suggest a positive trend towards making telehealth an integral part of the care delivery system, although the complicated regulatory frameworks still present challenges to providers seeking to treat patients via telehealth.
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Health Care Enforcement Kept the DOJ Fraud Section Busy in 2020
March 8, 2021 | Blog | By Eoin Beirne, Grady Campion
On February 24, 2021, DOJ’s Criminal Division Fraud Section published its annual year-end summary. The Fraud Section focuses on prosecuting white-collar crime. The report summarizes enforcement activity in the past year and discusses notable cases from the Fraud Section’s three litigation units: (1) the Health Care Fraud (HCF) Unit; (2) the Foreign Corrupt Practices Act (FCPA) Unit; and (3) the Market Integrity and Major Frauds (MIMF) Unit. In summarizing the Fraud Section’s main achievements from 2020, the report also provides valuable insights on what lies ahead for the Fraud Section in 2021. This post focuses on the health care enforcement portion of the Fraud Section’s report.
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DOJ Reaches Acquisition Settlement with Geisinger, Evangelical; Demonstrates Department’s Willingness to Challenge a Minority Investment
March 8, 2021 | Blog | By Bruce Sokler, Evelyn French
Last week, Geisinger Health (“Geisinger”) and Evangelical Community Hospital (“Evangelical”) reached a settlement agreement with the Department of Justice (“DOJ”), resolving the DOJ’s ongoing litigation challenging Geisinger’s partial acquisition of Evangelical. Notably, the settlement agreement, among other terms, limits Geisinger’s ownership interest in Evangelical to a 7.5% passive investment and prevents Geisinger from exercising any control or influence over Evangelical.
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FDA Releases Definitive Statement on Fake Registration Certificates
March 4, 2021 | Blog | By Benjamin Zegarelli
On March 3, 2021, FDA issued a statement acknowledging that certain entities produce certificates of registration for medical device manufacturers and clarifying that the agency does not issue such certificates. The agency also announced that it sent letters to 25 entities demanding that they stop producing these false and misleading certificates because some device manufacturers and distributors are using them to claim that the devices they produce or sell are cleared, approved, or otherwise authorized by FDA.
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FTC Abandons Appeal of Philadelphia Hospital Merger, Allowing Jefferson and Einstein to Proceed with Creation of 18-Hospital System
March 2, 2021 | Blog | By Bruce Sokler, Joseph Miller , Robert Kidwell
Back in December, we wrote about a district court ruling rejecting the Federal Trade Comission’s (“FTC”) motion to enjoin the proposed combination of Thomas Jefferson University (“TJU”) and Albert Einstein Healthcare Network (“Einstein”) that would create an 18-hospital system in the Philadelphia area. The FTC and the Pennsylvania Attorney General had alleged the merger would lead to TJU/Einstein controlling at least 60% of the inpatient GAC hospital services market in a portion of Philadelphia. Following the district court decision, the FTC quickly appealed to the Third Circuit Court of Appeals and filed an emergency motion for a stay pending appeal. Days later, a three-judge panel denied the government’s motion without comment.
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HHS’ OCR Announces Enforcement Discretion for HIPAA Noncompliance Relating to Online COVID-19 Vaccination Appointment Scheduling Applications
February 25, 2021 | Blog
The Department of Health and Human Services’ Office for Civil Rights (OCR) has announced that it will exercise its enforcement discretion for health care providers’ and their business associates’ noncompliance with the HIPAA rules with respect to their good faith use of online or web-based scheduling applications for scheduling COVID-19 vaccination appointments. OCR will not impose penalties for such noncompliance during the COVID-19 nationwide public health emergency.
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Viewpoint Editors
Karen S. Lovitch
Chair, Health Law Practice & Co-Chair, Health Care Enforcement Defense Practice
Joanne S. Hawana
Member
Rachel E. Yount
Of Counsel
Pat G. Ouellette
Associate
Stephnie A. John
Associate
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