News & Insights


August 23, 2021

Health Headlines – August 23, 2021

CMS to Develop Regulations Requiring Nursing Home Staff Vaccinations – On August 18, 2021, President Biden announced that CMS would develop an emergency regulation to require nursing home staff vaccinations.  This announcement comes after months of incentives and giveaways to increase the nation’s overall vaccination rate. The administration signaled that compliance with the forthcoming regulation will be a condition for those facilities to continue receiving federal Medicare and Medicaid funding.  More than 15,000 Medicare and Medicaid-participating nursing homes and as many as 1.3 million staff members could be affected.

CMS cited the rise in the COVID-19 Delta variant as one of the reasons for the development of the regulation.  In its recent August 18, 2021 announcement, CMS restated its view that implementing this regulation falls within CMS’s authority to establish requirements to ensure the health and safety of individuals receiving care from Medicare and Medicaid providers.  This announcement follows on the heels of CMS-issued regulations for types of intermediate and long-term care facilities and residential facilities to educate and offer the COVID-19 vaccine to residents, clients, and staff, and to report weekly COVID-19 vaccination status data for both residents and staff.

This proposed emergency regulation appears to be part of the administration’s broader effort to use regulatory mandates to increase vaccination rates among government workers.  Three weeks ago, the administration required that federal workers must either satisfactorily prove their vaccination status or, alternatively, comply with onerous requirements such as mandatory masking, weekly testing, and physical distancing.  The administration has indicated that it will also require military personnel to be vaccinated by mid-September.

The CMS press release announcing the forthcoming nursing home vaccine regulations can be found here.

Reporter, Jasmine Becerra, Atlanta, +1 404 572 3537,


OIG Issues Sixth Favorable Advisory Opinion Regarding Medigap Plan and Preferred Hospital Organization Arrangements

On August 19, 2021, OIG posted a favorable advisory opinion, Advisory Opinion No. 21-11, relating to an arrangement between a Medigap Plan and a Preferred Hospital Organization (PHO). The proposed arrangement and OIG’s analysis is nearly identical to five other advisory opinions issued earlier this year, Advisory Opinions Nos. 21-03, 21-04, 21-05, 21-07, and 21-09.  Additional analysis regarding those advisory opinions is available here and here.  Advisory Opinion No. 21-11 is available here.

Texas Judge Grants Preliminary Injunction, Which Reinstates Texas Medicaid Waiver

In April 2021, the Biden administration revoked a Trump-era Texas Medicaid waiver that would provide funding to care for poor and uninsured state residents until 2030.  The reason cited for the revocation was that the Trump administration did not go through the required public comment period.  Texas Attorney General Ken Paxton argued that the rescission would harm the state’s safety net hospitals, and sought a preliminary injunction here.  Last week, U.S. District Judge J. Campbell Parker granted the preliminary injunction here.

King & Spalding Webinar: Post-Acute Care False Claims Act Trends

On August 26, 2021, from 12:00 - 1:00 ET, King & Spalding LLP will present on Post-Acute Care False Claims Act Trends. Our panel will explore recent government enforcement trends and current scrutiny of post-acute providers, including hospice, home health, skilled nursing facilities and inpatient rehabilitation facilities. The post-acute space has historically been and continues to be a focus area for government enforcement. At the same time, government expectations for compliance program design and effectiveness continue to increase. Topics for discussion include:

  • Department of Justice and Office of Inspector General healthcare enforcement trends impacting post-acute care providers, including a look at key recent settlements

  • Compliance program expectations for post-acute care providers

  • Specific enforcement trends and compliance challenges for hospice, home health, skilled nursing facilities and inpatient rehabilitation facilities

  • Practical strategies to promote compliance and minimize enforcement risks

To register and obtain additional information, click here. You do not have to be a client to attend, and there is no charge.

SAVE THE DATE: King & Spalding 30th Annual Health Law & Policy Forum

King & Spalding LLP will host its 30th Annual Health Law & Policy Forum virtually.  The Health Law & Policy Forum will consist of a series of webinars between 11:00 am and 1:00 pm ET each day on Monday, September 20, 2021, Wednesday, September 22, 2021, and Friday, September 24, 2021.  The Health Law & Policy Forum will focus on the foremost legal and political developments impacting the healthcare industry.  Further details and registration will be available soon.

Editors: Chris Kenny and Kate Stern

Issue Editors: Dominic Nunneri and Christopher Jew