As of July 26, 2022, there are 3,591 confirmed cases of monkeypox in the United States, according to US Centers for Disease Control and Prevention (CDC) data, and the World Health Organization (WHO) Director-General has declared the multi-country monkeypox outbreak a Public Health Emergency of International Concern (PHEIC). With much about the potential impact and scope of monkeypox still unknown, employers should consider taking proactive steps now, as may be appropriate for their workforce, to enhance and reinforce the safety protocols already in place from the COVID-19 pandemic.
On July 12, 2022, the US Equal Employment Opportunity Commission (EEOC) revised its guidance on compliance with disability discrimination law during the COVID-19 pandemic. While previous guidance, initially published on December 14, 2021, provided that COVID-19 viral testing was permissible for on-site employees and did not run afoul of the Americans with Disability Act (ADA) due to health and safety priorities of the pandemic, the recent EEOC updates now only permit screening and viral testing measures when such measures are job-related and consistent with business necessity, holding COVID-19 testing to the same standard as other workplace medical tests. The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees to prevent workplace transmission of COVID-19,” the EEOC 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.”
A group of conservative Texas lawmakers is warning employers of potential civil or criminal consequences if they offer out-of-state abortion access to their employees. In this Bloomberg Law article, McDermott Partner Scott Weinstein said many companies offering reproductive healthcare benefits are making sure such benefits aren’t tied to a particular procedure.
The COVID-19 pandemic has ushered in significant changes to the healthcare industry, specifically the transition from a fee-for-service model to a value-based care model, and digital health has proved to be a driver of value-based care models. In this Westlaw Today article, McDermott Partners Marshall E. Jackson, Jr. and Jeremy Earl suggest that increased use of telehealth during the pandemic may lead to an increase in the adoption of value-based care models that reward providers for efficiency and effectiveness.
Employers seeking to provide their employees with abortion services are facing a dizzying patchwork of laws that differ from state to state, according to this Corporate Counsel article. McDermott’s Sarah Raaii said companies with employees in multiple states “would really need to do a state-by-state analysis of what the abortion laws are, whether and under what circumstances abortion is legal in most states.”
On July 8, President Biden signed an executive order for abortion access. In this order, the US Department of Health and Human Services (HHS) pledged to take steps to ensure that all patients have access to the full rights and protections for emergency medical care afforded under the law. Currently, medical providers and hospitals are required by the Emergency Medical Treatment and Labor Act to provide stabilizing treatment for patients with emergency medical conditions. On July 11, the Biden administration reiterated, through new guidance from HHS, that medical providers must offer abortion services if the life of a mother is at risk and that procedures conducted under such circumstances would be protected regardless of state law. The state of Texas has already filed a lawsuit challenging the Biden administration on this new guidance on the grounds that it violates the rights of physicians who oppose providing abortions and violates a state’s right to invoke its own policies.
Additionally, the Office of Civil Rights released guidance for retail pharmacies on access to reproductive healthcare services. The guidance, directed toward the nation’s 60,000 retail pharmacies, directed that pharmacists must provide medications related to reproductive healthcare as directed and prescribed by providers. This includes abortion pills, birth control and other reproductive care treatments. The agency cited reports outlining instances in which women were denied certain medications because the drugs may be linked to abortion or the drugs have ingredients like those used for medication abortion, for example Methotrexate, which is sometimes used to treat certain types of cancer, psoriasis and rheumatoid arthritis, but can also be used off-label to end ectopic pregnancies.
The Centers for Medicare & Medicaid Services (CMS) recently published detailed databases summarizing changes of ownership of Medicare-enrolled hospitals and skilled nursing facilities (SNFs). The databases currently include information from 2016 to 2022, but the data will be updated and released quarterly. CMS also released the skilled nursing facility prospective payment system (SNF PPS) proposed rule (the Proposed Rule), including proposed updates to payment based on quality and value-based care measures.
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