WHAT DID THE FIRST QUARTER OF 2023 TEACH US?

by Lindsey Phillips, Burr & Forman, LLP

The first quarter of a new year often brings new laws, rules, regulations, and updates that have significant impact on the remainder of the year, and the first quarter of 2023 was no different. This article will briefly outline three of the most impactful healthcare law updates from the first quarter of 2023. 

The End of the Public Health Emergency

On January 30, 2023, the Biden Administration announced that it will end the public health emergency declaration on May 11, 2023. The end of the public health emergency declaration (PHE) comes three years after the effects of COVID-19 were first deemed a public health emergency across the country back in January 2020. The declaration allowed the federal government to implement several waivers that modified the requirements of various health-related laws and programs like Medicare and Medicaid. While some of the flexibilities implemented during the PHE have already been made permanent or otherwise extended, many of the waivers permitted during the PHE will expire at the end of the day on May 11, 2023. According to the Department of Health and Human Services (HHS), one key flexibility that will not be substantially impacted once the PHE ends is the ability to deliver telehealth services under Medicare and Medicaid, especially in rural areas. While COVID-19 brought significant negative consequences across the country and the world, the pandemic did prove that there are positive aspects to providing healthcare via telehealth and telemedicine. This realization led to the passing of the bipartisan Consolidated Appropriations Act, which will allow many of the telehealth waivers to remain in effect until at least December 2024.

The Centers for Medicare & Medicaid Services (CMS) has created a roadmap that is designed to assist and help prepare healthcare providers as they return to operations outside of the PHE. Healthcare providers should assess which waivers they have used during the PHE, identify whether those waivers will end on May 11, 2023, and implement the proper processes to ensure they are in compliance once those waivers are no longer in effect.

The Joint Commission Has Revised Practitioner Evaluation Time Periods

The Joint Commission (JC), which accredits and certifies more than 22,000 healthcare organizations across the country, has revised its requirements related to how often licensed practitioners must be re-evaluated. Effective immediately, Joint Commission-accredited ambulatory care organizations, behavioral healthcare and human services organizations, critical access hospitals, hospitals, nursing care centers, and office-based surgery practices must reevaluate its licensed practitioners at least every three years. The previous rule required that these entities reevaluate its practitioners at least every two years. The JC announced that this change was implemented to better align with current standard practices. Notwithstanding, the change is subject to state requirements. Fortunately, there are no laws in Alabama that prohibit the aforementioned healthcare providers from implementing the change.       

The National Labor Relations Board Has Limited the Scope of Confidentiality and Non-Disparagement Provisions

The National Labor Relations Board (NLRB) recently reversed two decisions entered during the Trump Administration that allowed broad non-disparagement and confidentiality provisions in severance agreements. When McLaren Macomb, a hospital in Michigan, laid off several employees and presented them with severance agreements, the agreements included very broad confidentiality and non-disparagement clauses. The NLRB held that such provisions violated the National Labor Relations Act (“the Act”). Additionally, the NLRB held that, where a severance agreement unlawfully conditions receipt of severance benefits on the forfeiture of rights protected by the Act, the mere proffer of the agreement is precluded. While severance agreements are still permitted, employers should ensure that such agreements do not contain overly broad confidentiality and non-disparagement clauses. General counsel for the NLRB has stated that an example of a confidentiality provision that is permissible would be a clause that was narrowly tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications. Importantly, the prohibition primarily applies to non-supervisory employees, which are those individuals who do not have the authority to hire, discharge, direct, or take certain other actions with respect to other employees through the use of independent judgment. Notwithstanding, employers should keep in mind these new restrictions even when entering into severance agreements with supervisors and managerial employees. While it is possible that this decision could be appealed, the Board’s ban is effective immediately.

Lindsey Phillips is an associate at Burr & Forman LLP practicing exclusively in the firm’s Healthcare Industry Group. Lindsey may be reached at (205) 458-5370 or lphillips@burr.com.