After almost a year of negotiations among congressional Democrats and the White House, the Inflation Reduction Act of 2022 (IRA) was signed into law by President Biden on August 16, 2022. It passed in the US Senate by a vote of 50–50, with the vice president breaking the tie, on August 7, 2022. The bill passed the US House of Representatives August 12, 2022, by a party-line vote of 220-207. This McDermott+Consulting article summarizes the key healthcare provisions of the IRA, including prescription drug reform, inflationary rebates, a cap on insulin costs, a Medicare Part D benefit redesign and a new pharmacy benefit manager rebate rule.
It was a busy end of August for abortion-related litigation in Texas. Multiple pro-reproductive justice nonprofit groups sued Texas Attorney General Ken Paxton and other prosecutors to protect the ability of pregnant Texans to obtain abortions in outside states, and Texas’ new trigger ban law went into effect. In this MedCity News article, McDermott Partner Caroline Reignley notes how the US Supreme Court’s landmark Dobbs decision “did not end the debate over abortion or limit court intervention.”
How can companies provide abortion travel benefits to their workers without disclosing sensitive medical information? In this Corporate Counsel article, McDermott’s Sarah Raaii provides insight into how the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA) offer protections for workers seeking reproductive healthcare services.
“The most common way that we’ve seen employers offering these abortion benefits is to include them in their existing ERISA health plans, in which case they [the plans] would be subject to HIPAA,” Raaii said.
How do organizations go about conducting a Health Insurance Portability and Accountability Act (HIPAA) security risk analysis (HRSA)? In this Health Law Weekly article, McDermott Partner Ryan S. Higgins provides a step-by-step guide to conducting an HRSA and offers practical guidance to address the key issues effectively.
What should company general counsels (GCs) know about abortion trigger bans, the Health Insurance Portability and Accountability Act (HIPAA) and how not to break the law in light of the new abortion landscape in the United States? In this MedCity News article, McDermott’s Sarah Raaii offers insight into how companies can protect abortion access for workers.
“One thing that GCs and employers should do is closely track any new state developments in a state you have business interests in,” Raaii said. “And if you have employees all over, unfortunately that could mean keeping track of 50 different states laws because it’s as simple as ‘this state does or doesn’t prohibit abortion,’ there’s different levels of protection.”
On August 4, 2022, the US Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking (NPRM or proposed rule) to reinterpret section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age or disability in a health program or activity, any part of which is receiving federal financial assistance. The proposed rule restores and strengthens certain civil rights protections under federally funded health programs and HHS programs which were limited following the 2020 Trump-era version of the rule, specifically regarding discrimination on the basis of sex, including sexual orientation and gender identity, and returns certain protections for individuals with limited English proficiency (LEP). Additionally, the proposed rule bolsters protections against discrimination in healthcare by clarifying that funds received under several federal healthcare programs, including Medicare Part B, are included in the definition of federal financial assistance under the law. As such, under the proposed rule, the list of entities expected to comply with the nondiscrimination measures outlined in Section 1557 of the ACA is significantly expanded, in many ways aligning with the 2016 Obama-era version of the rule. The NPRM also proposes to expand the applicability of the post-Bostock interpretation of “on the basis of sex” to Medicaid, Children’s Health Insurance Programs (CHIP) and Programs of All-Inclusive Care for the Elderly (PACE). For now, portions of the 2020 Final Rule not discordant with Bostock continue to apply.
As US states seek to reduce abortion access in the wake of the overturning of Roe v. Wade, how can employers protect workers who seek abortion care? In this Fortune article, McDermott’s David Gacioch, Sarah Raaii and Ellen Bronchetti offer insight into what the US Supreme Court’s decision means for employee healthcare data, employee benefits and Title VII.
“Any employer who doesn’t already have an assessment of what the end of Roe means for its operations and workforce…needs to get in front of this,” Gacioch said.
340B hospitals should not expect to receive withheld program funds anytime soon despite a recent US Supreme Court ruling. According to this Becker’s Hospital Review article, the Court reversed a 2020 federal appeals court ruling that found that the US Department of Health and Human Services (HHS) had the authority to make a $1.6 billion annual reimbursement cut to the program under its Medicare Outpatient Prospective Payment System (OPPS). McDermott Partner Emily J. Cook said that the ruling will not result in any immediate changes to Medicare payments for 340B drugs nor require that HHS restore the full payment rates for the drugs.
Could a worker be fired for having an abortion? According to this Insider article, workplace laws would likely protect pregnant people from discrimination. McDermott’s Sarah Raaii said employers should make sure abortion health plan coverage does not conflict with federal laws.
“Incorporating abortion benefits into an employer’s existing health plan might help mitigate worker privacy concerns,” Raaii said, “since health plans are subject to the Health Insurance Portability and Accountability Act (HIPAA).”
Following the US Supreme Court’s decision to overturn Roe v. Wade, health lawyers have been busy making sense of the legal implications of the court’s landmark ruling. In this Law360 article, McDermott Partners Stacey Callaghan and David Gacioch offer insight into the myriad of questions they’ve received from hospitals, pharmacies, telemedicine platforms, investors and other players in the industry.
“The field against whom [abortion restrictions] can be enforced becomes so much broader,” Gacioch said. “It’s such a sea change.”
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