Insights

Since his inauguration on January 20, 2025, President Trump has issued a flurry of executive orders (“EOs”). Three of these EOs rescind Biden Administration guidance extending the nondiscrimination protections under Section 1557 of the Affordable Care Act (the “ACA”) to discrimination based on gender identity.[1] These protections have had a tumultuous history since Section 1557 was enacted in 2010, with each administration reversing course from the last. The new administration has reverted to the position taken in President Trump’s last presidency – that the protections against discrimination “on the basis of sex” do not apply to gender identity.

On January 17, 2025, the Departments of Labor, Health and Human Services, and Treasury (the “Tri-Agencies”) released the 2024 Mental Health Parity and Addiction Equity Act (“MHPAEA”) Report to Congress (the “Report”). The Report is the third report made by the Tri-Agencies to Congress in accordance with the mandate set forth in the 2021 Consolidated Appropriations Act (“CAA”). The CAA requires that, each year starting in 2021, the Tri-Agencies submit a report to Congress summarizing their activity in the prior year to collect comparative analyses from plans and issuers and any findings made with respect to noncompliance with MHPAEA.[1] Under the CAA, the Report is due by October 1 of each year. This year’s version was published on the last working day of the Biden Administration.

On Monday, September 8, 2024, the United States Department of the Treasury, Department of Labor, and Department of Health and Human Services (collectively, the “Tri-Agencies”) issued a final rule (“the Final Rule”) implementing new regulations applicable to nonquantitative treatment limitations (“NQTLs”) under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (“MHPAEA”). The Final Rule codifies many of the requirements set forth in the (the “Proposed Rule”), while pulling back on some of the Tri-Agencies’ more controversial proposals. 

On Friday April 26th, the Office of Civil Rights (“OCR”) at the U.S. Department of Health and Human Services (“HHS”) released regulations under Section 1557 of the Affordable Care Act[1] (“Section 1557”), the nondiscrimination provision of the Affordable Care Act (the “Final Rule”). Promulgated almost two years after OCR’s proposed rule for Section 1557, the Final Rule restores critical protections for LGBTQI+ and pregnant individuals and significantly expands the scope of activity that is subject to Section 1557’s nondiscrimination provisions, in both instances by removing limitations to the scope of Section 1557 that went into effect during the Trump Administration.

Starting next week, on April 1st, health care entities in California closing “material change transactions” will be required to notify California’s new Office of Health Care Affordability (“OHCA”) and potentially undergo an extensive review process prior to closing. The new review process will impact a broad range of providers, payers, delivery systems, and pharmacy benefit managers with either a current California footprint or a plan to expand into the California market. While health care service plans in California are already subject to an extensive transaction approval process by the Department of Managed Health Care, other health care entities in California have not been required to file notices of transactions historically, and so the notice requirement will have a significant impact on how health care entities need to structure and close deals in California, and the timing on which closing is permitted to occur.

On July 21, 2023, the Department of Health Care Access and Information of the California Health and Human Services Agency released a Notice of Proposed Rulemaking (the “Proposed Rule”) with regulations that would implement new financial and ownership transparency requirements for skilled nursing facilities (“SNFs”) in California.

On July 25, 2023, the U.S. Departments of Labor, Treasury, and Health and Human Services (the “Tri-Agencies”) released long awaited proposed regulations (the “Proposed Rule”) and a Technical Release, which together propose new requirements for comparative analyses of nonquantitative treatment limitations (“NQTL”) under the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”).  On the same day, the Tri-Agencies released their annual report to Congress on implementation of MHPAEA, as required under the Consolidated Appropriations Act, 2021 (“CAA 2021”). 

On September 30, 2021, the Departments of Health and Human Services (“HHS”), Labor, and Treasury, as well as the Office of Personnel Management (collectively, “the Departments”), issued a second interim final rulemaking implementing provisions of the No Surprises Act passed by Congress earlier this year. 

On February 10th, the Biden Administration informed the U.S. Supreme Court that the United States “no longer adheres” to the position advanced by the Trump Administration in California v. Texas, the case argued in November that challenges the constitutionality of the Affordable Care Act. In short, the U.S. Department of Justice now says that the Affordable Care Act’s individual mandate is constitutional, but even if it is not, the remainder of the ACA should remain in place.

As the COVID-19 pandemic is leading to social distancing to limit the spread of the disease, health care providers and patients look to remote communication technology to facilitate the provision of health care services related to COVID-19 symptoms, as well as other health care conditions.  Additionally, public health measures to limit the spread of the disease increasingly require the sharing of health information.  As a result, questions have arisen about what information sharing is permitted under HIPAA.  While HIPAA remains in effect during this time, waivers of certain enforcement provisions may allow for enhanced information sharing, and the exercise of enforcement discretion enables the use of an expanded range of telehealth communication platforms that would not generally be permissible.

As a kid, I didn’t run through the house with scissors. Instead, I’d try to toss them from a window into a glass of water held by my sister on the driveway below. Two lessons – 1) anything that starts with “don’t tell mom” is a bad idea, and 2) some things in life just work out.

It was inevitable, the wild gains in certain cryptocurrencies have recently caught the interest of retirement plan sponsors and participants as a potential investment boom to 401(k) accounts, IRAs, and traditional pension plans. With approximately $28 trillion in U.S. retirement plan assets, the potential – and risks – are staggering. But are retirement plans even permitted to invest in these unregulated “currencies” under applicable legislation? If so, would it be a prudent investment? What are the risks to plan sponsors? Is it true that officers, directors, and other employees may have personal liability under the Employee Retirement Income Security Act (ERISA) for making these decisions? Here are some things to ponder as you gaze out into the Ethereum…