Busy Week for HHS Amid Looming Shutdown

The looming federal shutdown was narrowly avoided this weekend after President Biden signed the $1.2 trillion spending package on Saturday. This package includes funding for the U.S. Department of Health and Human Services (HHS) and other federal health programs.

Perhaps not surprising is that Senate negotiations on Friday were heated – and the Friday midnight deadline was technically missed, though not by much. Tension between members of Congress was high throughout the day, with one Republican Senator citing “too much sugar and bad pizza” as the reason for waiting past the eleventh hour to pass legislation. The government is now finally funded through the end of September, so we get a bit of a reprieve from hearing more reports on would-be shutdowns for a bit!

While its funding was being hotly debated, the HHS Office for Civil Rights quietly updated their 2022 policy that made the use of third-party tracking technology a Health Insurance Portability and Accountability Act (HIPAA) violation when used by hospitals. As you may remember, hospitals took issue with this policy that would forbid hospital webpages from using analytic tools from companies like Google, Amazon, and Meta that track users on public-facing pages. While HHS generally reiterated most of the policy, it did alter its policy for a hospital’s public web pages. The new guidance states that not all trackers that link a device’s IP address with a visit to a webpage on specific health conditions count as a HIPAA violation, for example, a student looking up oncology information for a research project. 

The example HHS provided for an action that remains a violation is an individual looking up a hospital’s oncology services as a second opinion for treatment options for their brain tumor. But the updated policy will likely not lessen hospitals’ opposition. As one critic noted, whether something is a violation seems to be based on the website user’s intent. And the burden of proof is on the hospital to figure that out. It remains to be seen what if any impact this updated guidance will have on the American Hospital Association’s (AHA’s) lawsuit against HHS for this policy.

HHS also received two important letters from members of Congress this week. In one letter, bipartisan lawmakers highlighted three main concerns that remain with the No Surprises Act (NSA): the amount of oversight of the Qualifying Payment Amount in the independent dispute resolution (IDR) process, shrinking provider networks, and late payments from insurers. 

The Senate Health, Education, Labor, and Pensions (HELP) Committee also sent a letter to HHS questioning its role in the recent Change Healthcare cyberattack, accusing the agency of “inadequate” action and delayed reporting to Congress. The Committee listed 11 questions for HHS to answer. Interestingly, two of those questions revolved around the NSA: one about what HHS is doing to ensure that the winning parties receive payments by entities affected by the attack, and one inquiring about whether HHS should provide an extension for the IDR process for providers and payors affected by the attack. The HHS response is due by April 3, so we will be eagerly awaiting their input on how this could affect the IDR process.

HHS had a busy week amid the turmoil in Washington. As my colleagues and I have reported, it is highly unlikely that Congress will pass any sweeping healthcare legislation in an election year. Indeed, several major bipartisan health bills were excluded from the government funding bill passed this weekend.

However, we can expect to see more of what we saw this week: critical letters from Congress, updated agency guidance, and bipartisan calls for action. There’s certainly never a dull day around here, even in an election year!