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November 02, 2020

Chair's Column: What to Expect When We’re Expecting

By Hal Katz, Husch Blackwell LLP, Austin, TX

While every election year seems crazier than the last, this upcoming year has the potential to top them all. Now that votes have been cast, most of us within the healthcare industry are contemplating what policy, regulatory, and enforcement changes to expect with a new President and Congress. Political insiders, pundits, trade groups, and other special interests, from one end of the political spectrum to the other, all have their predictions.

Since 2003, the Health Law Section has held our annual Washington Healthcare Summit in Washington, DC to hear the latest prognostications, to provide our input on the various policy issues of the day, and to maintain our relationships with each other and those on the Hill. This year, December 7th – 9th, it will be no different, with the exception of it being through a virtual experience.  What should you expect, you ask? Well, I shall tell you….

We’ll step back and look at the big picture in the aftermath of the 2020 election, and how it will impact the healthcare industry. Former Executive Branch administrators will share their perspectives from having been on the inside, and now in their role as healthcare policy advisors. We’ll hear from the associations that represent critical components of the healthcare industry, and their “Inside the Beltway” perspective on Congressional priorities and the political landscape heading into 2021. Most importantly, we’ll hear “Inside the Halls of Congress,” from Congressional staff members on both sides of the aisle on their priorities, and what they see possible at this critical time in healthcare policy. 

The Summit wouldn’t be complete without having back again our annual conversation with Politico’s Alice Ollstein and Adam Cancryn on What’s New in Washington!

The Politico panel from the 2018 Washington Health Law Summit

The Politico panel from the 2018 Washington Health Law Summit

From left to right, Joe Geraci (Husch Blackwell, Alice Ollstein (Politico), Adam Cancryn (Politico) and Juliet McBride (King & Spalding)

While it’s helpful and interesting to hear what might happen this coming year, there are plenty of specific substantive topics that we’ll also be covering, as I will describe below.

With the new administration there will be attorneys moving from their roles within the federal government to private practice. With the specialized experience and relationships these attorneys have gained while working within the government, they are often sought after by companies pursuing their legislative strategies, and in defending against enforcement actions. Of course, ethical issues limit whether and when such engagements are permitted. 

Telehealth and artificial intelligence were on an accelerated adoption rate prior to COVID-19, and now there seems to be little holding either back. We shall see whether the Centers for Medicare & Medicaid Services, state medical boards, and other regulators permanently adopt what has been permitted, and reimbursed, during the pandemic, and the potential impact of these healthcare delivery tools.

Integration of behavioral health services into the healthcare delivery system is a vital step in addressing a historical lack of resources and funding. Transformative delivery models are being used for addressing behavioral health needs; clinical integration, affiliation, and collaborative care leveraging telepsychiatry and other telehealth services; key compliance issues; and recent regulatory changes in response to the opioid crisis and coronavirus public health emergencies that will impact future progress. There are some key players, alignment strategies, and transaction trends that many believe will shape the industry.

The pandemic has brought to the forefront the health and funding inequalities that disproportionately impact safety net providers and the communities they serve. The impact of COVID-19 on the public health system and safety net providers is hard to quantify, but there are policy implications going forward under the Medicaid program.

If you thought there was nothing left to discuss with respect to the Affordable Care Act, we have you covered. The U.S. Supreme Court heard oral arguments in Texas v. California, and now it’s just a matter of time before we hear the Court’s ruling.  Both the election and ruling could impact the future implementation of the Affordable Care Act.

States are exploring opportunities to engage individuals who have contact or interaction with courts, jails, or prisons (“justice-involved populations”) in Medicaid coverage, case management and healthcare both immediately prior to and following their release from prison or jail. These issues aren’t often discussed, or understood, but are considerable (e.g., an estimated 80 percent of individuals released from prison in the United States each year have a substance use disorder, or chronic medical or psychiatric condition, and incarcerated individuals have nine to 10 times the rate of hepatitis C and eight to nine times the rate of HIV infection than the general population). Some states are using strategies to meaningfully connect justice-involved populations to healthcare services when re-entering the community.

Providers across the country have been grateful for the COVID-19 Relief Funding, but the funds have come with their own set of challenges. Practical insights and best practices have been compiled for avoiding duplication of benefits, strategic allocation of costs incurred to respond to the public health emergency, and lessons learned that will benefit all providers as the COVID-19 pandemic continues.

There is an alarmingly high incidence of COVID-19 in long-term care communities, including skilled nursing facilities (SNFs). While the usual explanations can account for these occurrences, studies also correlate COVID-19 incidence in SNFs with poverty, limited resources, poor staff to patient ratios, Medicaid participation, and urban settings. These studies and the regulatory responses to COVID-19 are being used to develop effective strategies to promote consistent quality in long-term care.

Since the beginning of the year, there has been concern surrounding the availability of personal protective equipment (PPE), and this concern continues. There are legal and policy issues involving the PPE supply chain, including procurement, price gouging, hoarding, counterfeit PPE, and False Claims Act implications. As cases surge across the country, providers also need to be aware of the risk management issues around quality control, rationing, and employee/staff cooperation with use protocols.

While the COVID-19 pandemic has impacted all healthcare providers, it’s important to understand the impact on physicians and how it has changed how they care for patients. Office closures, cancellation of hospital elective procedures, and determining how to ensure access for COVID-19 positive patients or those at risk for infection have created immense challenges for care delivery and survival as a business.

I know you’ll be as impressed as I am with the Summit, which wouldn’t have been possible without the leadership of the Conference’s Co-Chairs Jeff Wurzburg and Kenya Woodruff, and their hardworking committee members. They’ve achieved the Section’s goal of providing an insiders’ view of the timely policy issues affecting the healthcare industry today, and a discussion of key topics that will be important in the upcoming year. I hope to see you virtually at the Summit! Keep an eye out for posts of pictures from past Summits.

Section Chair Hal Katz and Immediate Past Chair Jay McEniry at the Dirksen Senate Building.

Section Chair Hal Katz and Immediate Past Chair Jay McEniry at the Dirksen Senate Building.

Anita Jewel Barksdale, Montrece Ransom and Juliet McBride enjoy refreshments during the Washington Health Law Summit reception.

Anita Jewel Barksdale, Montrece Ransom and Juliet McBride enjoy refreshments during the Washington Health Law Summit reception.

Stan and Hilary Young, Don Romano and Kenya Woodruff, enjoy each other’s company at the Washington Health Law Summit.

Stan and Hilary Young, Don Romano and Kenya Woodruff, enjoy each other’s company at the Washington Health Law Summit.

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