Federal Issues

Last Updated: Jan. 20, 2022

• On January 14, 2022, the US Department of Health and Human Services renewed the COVID-19 public health emergency declaration for another 90 days effective Jan. 16. The extension has several policy implications. The sec. 1135 blanket waivers  and flexibilities issued to manage the requirements and limitations of treating patients during the pandemic remain in effect.
• On January 13, 2022, the U.S. Supreme Court issued decisions on the Centers for Medicare & Medicaid Services (CMS) and Occupational Safety and Health Administration (OSHA) vaccine mandates. As expected, the court blocked the Biden administration from enforcing the vaccine or test mandate issued under OSHA but upheld the ability of the CMS to enforce the healthcare worker vaccine mandate.
• The Supreme Court has repeatedly upheld the constitutionality of state vaccine mandates in a variety of settings, as well as mandates by private employers. These challenges were different because they presented the question of whether Congress had authorized the executive branch to institute the requirements through the agencies of OSHA and the CMS/Department of Health and Human Services.
• Michigan was not one of the 26 states covered by the court injunction to the CMS mandate, and Michigan has no other state-issued prohibitions on enforcing federal or private vaccine mandates. Hence, the mandate and enforcement move forward. The currently posted deadline for completing the first required vaccine dose is Jan. 27, and the second dose is required by Feb. 28. Boosters are currently not part of the mandate.
• The MHA has continued to work with state regulators on securing updated guidance for hospitals and health systems as it relates to worker quarantine periods. OSHA rules have not yet been fully rescinded to allow for healthcare settings to confidently follow new, less restrictive Centers for Disease Control and Prevention (CDC) quarantine guidance. However, the Michigan Occupational Safety and Health Administration (MIOSHA) has stated it was told OSHA is in the process of withdrawing the relevant rules and the state agency is preparing to update its rules to align with the revised federal rules. MIOSHA also indicated that, until updates are made at the federal and state levels, it will not issue citations specifically regarding quarantine and isolation requirements if an employer were following the Dec. 23, 2021, updated CDC guidance for healthcare personnel.
• An existing OSHA provision recognizes the CDC’s ‘‘Strategies to Mitigate Healthcare Personnel Staffing Shortages.’’ This guidance allows elimination of quarantine for certain healthcare workers as a last resort if the workers’ absence would mean there are no longer enough staff to provide safe patient care, specific other amelioration strategies have already been tried, patients have been notified, and workers are using additional personal protective equipment at all times.
• On December 10, 2021, President Biden signed legislation to implement the following payment changes:
  • Eliminating the 2% Medicare sequester cuts from Jan. 1 to April 1, 2022. The legislation would also reduce the cut to 1% from April 1 to June 30, 2022. Absent future legislation, the 2% cuts will take effect July 1, 2022. The package is being funded by increasing the sequester percentage in 2030.
  • Halting the 4% statutory Pay-As-You-Go sequester for 2022 and adding them to the “2023 scorecard.” This will require additional advocacy with the Congress in late 2022 to eliminate these cuts again.
  • Mitigating the 3.75% payment cut to the Medicare physician fee schedule (PFS) payments finalized for calendar year 2022 by implementing a one-year 3% increase to the PFS conversion factor.
  • Delaying the Clinical Laboratory Fee Schedules cuts for one year, from Jan. 1, 2022, to Jan. 1, 2023. The requirements that certain hospital laboratories report their private payer clinical laboratory test codes, payments and volume data are also delayed.