Five Areas Likely to Force HHS Action in 2023 – Bloomberg Law
Covid-19, reproductive rights, and restrictions on LGBTQ Americans are among the major health issues facing the Biden administration’s HHS in 2023, forcing the agency’s hand on new measures to counter a legal framework rapidly evolving on a state-by-state basis.
The opioid crisis and a health privacy framework adapting to meet the pandemic are also on deck for the Health and Human Services Department, which is slated to release new rules in the coming months as the Covid-19 public health emergency persists.
Meanwhile, some state governments are considering legislative challenges to several HHS policy pushes.
Here’s a look at five health policy areas HHS will have to tackle in the coming year:
1. Unwinding the Public Health Emergency
The PHE has been renewed by the HHS for 90-day periods since early 2020. The current declaration ends in mid-January, and the Biden administration has promised to give states 60 days’ notice when a decision on an end date is reached. In late 2022, President Joe Biden said the nation’s Covid response was shifting, potentially signaling an end date in the not-too-distant future, though none has yet been announced.
An unwinding of the PHE declaration would spur states to re-evaluate who gets to maintain Medicaid coverage. That’s at least partially because 2020’s Families First Coronavirus Response Act (Public Law 116-127) expanded Medicaid eligibility and required state Medicaid programs to keep beneficiaries enrolled through the duration of the pandemic. Under the spending bill passed by Congress in December, states will be allowed to restart Medicaid eligibility checks at the beginning of April that could lead to some people losing benefits.
Expanded telehealth reimbursements could also be scaled back when the PHE ends.
2. Abortion
The Biden administration has scrambled for ways to ensure access to abortion for individuals living in states with restrictions on reproductive rights ever since the Supreme Court reversed Roe v. Wade, which had granted federal protection to those seeking the procedure.
Shortly after the Supreme Court’s action, HHS Secretary Xavier Becerra said the administration was weighing various options, such as helping people cross state lines to get abortion services in less-restrictive locations.
Meanwhile, the HHS’ Centers for Medicare & Medicaid Services issued guidance proclaiming it viewed the Emergency Medical Treatment & Labor Act (EMTALA) as preempting state laws against abortion in emergency situations. In August, however, a federal judge blocked the government from enforcing its view that its guidance preempts Texas abortion law.
Abortion pill access will likely remain a priority for the HHS in the year ahead. Pill maker GenBioPro and the state of Mississippi were previously wrangling in federal court over whether the HHS’ Food and Drug Administration regulations preempt state restrictions on abortions, including medication abortions. The company has since dropped its case, planning to file another suit in another court.
3. Taming the Opioid Crisis
Predicted annual overdose deaths hit a record high in 2022, coming in at over 110,000 for the 12 months leading up to March of that year.
The Biden administration has been vocal in its plans for curbing addiction deaths since early in its term.
The fiscal 2023 congressional spending bill eliminates a requirement for health practitioners to apply for a waiver through the US Drug Enforcement Agency to provide the opioid addiction treatment drug buprenorphine, instead requiring a one-time, eight-hour training.
The administration is likely to release new rules further loosening restrictions on opioid treatment in 2023.
One rule would allow health providers to offer take-home methadone to treat substance use disorder, building on practices adopted during the pandemic. The other rule would allow the sharing of patient substance use treatment records after a one-time consent.
4. LGBTQ Health
Mental health services have been difficult for a significant number of LGBTQ youth to access.
The Trevor Project reported that 60% of LGBTQ youth seeking such services couldn’t get them. What’s more, 82% of all LGBTQ youth wanted mental health care, the group found. This comes against a backdrop of conservative states launching legislative attacks widely viewed as targeting gay and trans individuals.
The HHS is pushing funds into LGBTQ-specific services for the 988 national suicide prevention line. Last fall, 988 launched its pilot program for such services, with plans to adjust schedules to provide services around the clock once full capacity is reached. The 988 hotline overall is expected to get a greater focus in the next year, after getting a financial boost in the spending package.
The agency had hoped to finalize a rule restoring protection for LGBTQ people from discrimination in 2022. But in December, a Trump-appointed judge ruled that the Affordable Care Act defines sex narrowly, weakening protections for LGBTQ people and adding uncertainty around the issue.
5. Telehealth Tomorrow
The Kaiser Family Foundation reported that before the coronavirus pandemic, telehealth accounted for less than 1% of outpatient care. Since then, however, those numbers have jumped up, accounting for 40% of outpatient visits for mental health and substance abuse.
The HHS has already issued guidance to providers on how they can offer “audio-only telehealth services” that line up with the Health Insurance Portability and Accountability Act of 1996, or HIPAA. The privacy requirements in that law pose challenges for remote services, but the HHS waived these rules during the pandemic.
The future of such services remains an open question once the PHE lifts, though in the short term, Congress’ spending package extends access for telehealth.