News & Insights


July 22, 2019

Health Headlines – July 22, 2019

CMS Proposes “Efficiencies” for Long-Term Care Facilities – On July 18, 2019, CMS published a proposed rule titled “Medicare & Medicaid Programs; Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency and Transparency” (the Proposed Rule). According to CMS, the proposed changes to the current long-term care requirements and survey process would “simplify and streamline the current requirements” by (i) reducing the frequency with which long-term care facilities are required to conduct a facility assessment; (ii) allowing long-term care facilities the flexibility to streamline their compliance and ethics programs; and (iii) reducing the requirements for individuals responsible for the compliance and ethics program.

Many of the proposed revisions relate to survey, certification and enforcement procedures. Specifically, CMS proposes changing the minimum frequency with which a long-term care facility is required to conduct a facility assessment from an annual assessment to a biennial facility-wide assessment. Further, CMS proposes revising 42 C.F.R. § 488.331 and § 488.431, which relate to the informal dispute resolution processes that allow long-term care providers the opportunity to refute survey findings, to “increase provider transparency by ensuring that administrative actions are processed timely, and that providers understand the outcomes of results.”  If the Proposed Rule goes into effect, 42 C.F.R. § 488.431 will also be revised to include a 60-day timeline for the informal dispute resolution process. CMS also looks to revise 42 C.F.R. § 488.436 by eliminating the requirement for long-term care facilities to actively waive their right to a hearing in writing for a 35 percent reduction in potential civil monetary penalties. In its place, CMS looks to implement a “constructive waiver process that would operate by default when CMS has not received a timely request for a hearing.” CMS states that this proposed revision would result in lower costs for most long-term care facilities facing civil money penalties, and “would streamline and reduce the administrative burden for stakeholders.”

CMS expects the Proposed Rule, if finalized, to create $616 million in savings annually for long-term care facilities.  Notably, the Proposed Rule is one facet of CMS’s “five-part approach” to reducing regulatory burdens on long-term care facilities. CMS’s fact sheet about the Proposed Rule is available here.  Comments on the Proposed Rule are due by September 16, 2019, and may be submitted electronically here.

Reporter, Michelle Huntsman, Houston, +1 (713) 751-3211,  

CMS Releases New Tools to Aid Applicants for State Relief and Empowerment Waivers – On July 15, 2019, CMS released new resources, which are available here, that are intended to support states as they apply for waivers under Section 1332 of the Affordable Care Act. These materials follow guidance issued by CMS and Department of the Treasury in October 2018 that provided states with expanded flexibility with respect to how a state plan may meet the standards for obtaining a waiver under Section 1332. The tools include papers focused on four waiver concepts paired with model templates, which are designed to assist states with the preparation and submission of waiver applications. In addition, CMS released an application checklist and a general overview of the new resources.

Section 1332 provides HHS and the Department of the Treasury (the Departments) with the authority to approve a state’s proposal to waive specific ACA requirements, provided that the state plan meets certain requirements. Such waivers are presently known as State Relief and Empowerment Waivers (formerly referred to as State Innovation Waivers) and are intended to permit states to pursue innovative strategies to stabilize the risk pool. In order for the Departments to exercise their waiver authority, they must determine the proposal will provide access to health insurance coverage that is at least as comprehensive and affordable as would be provided under the ACA absent a waiver, will provide coverage to at least a comparable number of the state’s residents as would be provided absent a waiver, and will not increase the federal deficit.  In assessing waiver applications, the Departments consider how the proposal may advance certain principles by: increasing access to affordable private market coverage; encouraging sustainable spending growth; fostering state innovation; supporting and empowering those in need; and promoting consumer-driven healthcare. 

The new waiver concept papers track the four concepts that CMS outlined in a November 2018 Discussion Paper, which is available here. The papers are intended to make each of the following topics more understandable to state policy makers and the general public:

  • State Specific Premium Assistance: Enables a state to design a subsidy structure that meets the unique needs of its population in order to provide more affordable healthcare options to a wider range of individuals, attracting more young and healthy consumers into the market, or addressing certain structural issues. 
  • Adjusted Plan Options: Allows a state to provide state financial assistance for non-Qualified Health Plans (non-QHPs), allowing non-QHPs to be sold on the existing Exchange, expanding the availability of catastrophic plans beyond current eligibility limitations, applying the ACA’s premium tax credit to catastrophic plans and potentially certain non-QHPs sold on the Exchange, among other approaches.
  • Account-Based Subsidies: Enables a state to direct state-administered subsidies into a defined-contribution, consumer-directed account that an individual uses to pay health insurance premiums or other health care expenses. This concept would require the state to design and implement a new state-administered subsidy structure to fund the account, which can be done through the State Specific Premium Assistance waiver concept.
  • Risk Stabilization Strategies: Allows a state to consider ways to address the costs of individuals with expensive medical conditions to mitigate the impact of those expenses on people who purchase coverage in the individual market.

For each waiver concept, CMS has provided a corresponding waiver template that outlines the sections and topics that must or should be addressed in a waiver application. The templates include instructions and notes that highlight key issues and sample language designed to guide states in the development of the narrative part of their application. The templates are designed to accommodate a wide variation of approaches to each waiver concept. The use of a template is optional and does not guarantee that a state’s application for a waiver will be approved.

The waiver application checklist itemizes the required elements of a waiver application and includes citations to the applicable regulatory provisions that each element satisfies. The checklist also identifies where certain information should be submitted for applications that are specific to one of the four waiver concepts.

Reporter, Kyle Gotchy, Sacramento, +1 916 321 4809,


King & Spalding Roundtable: #Metoo Risks Facing Healthcare Providers – King & Spalding will host a webinar on Tuesday, July 23, 2019 from 1:00 P.M. – 2:30 P.M. ET discussing “#metoo” risks that healthcare providers are facing and how they can minimize those risks. This webinar will address:

  • The legal and business impact of the #metoo movement;
  • Recent sexual misconduct scandals involving healthcare providers;
  • Understanding the risks of sexual misconduct allegations and common themes found in such allegations relating to healthcare providers;
  • Reducing the risks of sexual misconduct scandals through effective policies and practices; and
  • Conducting a #metoo wellness assessment.
  • Registration for this event is available here.

Atlanta Life Sciences & Healthcare Group Event – The Atlanta Life Sciences & Healthcare Group is an educational, networking and social resource for professionals working in or serving the life sciences and healthcare industry. We invite you to join us for our summer event on July 31 from 5:30 – 7:30 PM to network with others working in this growing area of our economy. The event will be hosted by Parker Hudson at 303 Peachtree Street NE, Suite 3600. Please register here.