July 2020 Legislative Updates

New Laws Passed this Year by the General Assembly 

(Effective July 1, 2020)

This year, the Virginia General Assembly passed a number of bills related to health care. Some noteworthy legislative changes include:

• Balance billing will be prohibited for emergency services. This accomplishment is the culmination of several years of advocacy work by providers and consumer advocates to ensure that patients aren’t financially penalized when insurers refuse to pay their fair share for the cost of care.
• Surgical assistants will be licensed, rather than simply registered, by the Board of Medicine.
• Elective surgery patients must be informed if they will need physical therapy (PT), and will be required to select a PT provider, prior to discharge.
• Emergency departments are required to establish specific protocols for patients experiencing a substance-use related emergency.
• Magistrates may grant a medical temporary detention order (TDO) for observation and treatment of an intoxicated person beyond the 8-hour emergency custody order (ECO) period in order to allow the intoxication to resolve and provide for better assessment of the need for inpatient behavioral health care.
• Pharmacists will have expanded authority to prescribe and administer certain medications and treatments, including Naloxone, hormonal contraceptives, prescribed prenatal vitamins, dietary fluoride supplements, and certain medications which may be less expensive than over-the-counter alternatives.
• Certified registered nurse anesthetists (CRNA) will have the authority to prescribe Schedule II-IV controlled substances under the supervision of a physician.
• Hospital screening teams no longer need to complete a Medicaid assessment for individuals who are being discharged from a hospital to a nursing facility for a non-Medicaid, short-stay rehabilitation admission.
• Lithotripsy, magnetic source imaging, and nuclear medicine imaging have been removed from Certificate of Public Need (COPN) review. A State Health Services Plan task force will convene to provide recommendations on the redevelopment of the State Health Services Plan (formerly the State Medical Facilities Plan).

The Future of Telehealth

No area of health care has evolved as rapidly during the COVID-19 pandemic as telehealth. As providers, payers, and elected officials consider the next steps for health care, preserving and expanding the progress made in telehealth is a top priority.

Federal Action

The U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on June 17 titled “Telehealth: Lessons from the COVID-19 Pandemic.” The committee invited a panel of four experts to testify, including Dr. Karen Rheuban of UVA Health System. In addition to being a pediatric cardiologist and professor of pediatrics, Dr. Rheuban is the Director of the UVA Center for Telehealth, which was renamed in her honor in 2016. She is also Chair of the Virginia Department of Health (VDH)/VHHA COVID-19 subcommittee on telehealth. She was introduced by U.S. Senator Tim Kaine (D-VA), who serves on the committee.

During her testimony, Dr. Rheuban stated, “The simplest and most important action needed is for Congress to authorize the Secretary of Health and Human Services to make permanent many of the telehealth policy changes enacted during the public health emergency. In addition, Congress should provide support for further broadband deployment…to reduce geographic and demographic disparities in access to care. Also needed is increased funding for the HRSA-funded telehealth resource centers and for innovative models of virtual continuing education programs for health professionals to improve outcomes.”

Goals expressed by the Senate committee members include improved health equity, better geographic and demographic access to care, expanded access to behavioral health and substance abuse services, and use of remote patient monitoring for chronic conditions. Among the concerns expressed are patient privacy, broadband access, price transparency, pay parity, and potential impact on workforce.

Virginia Action

During the 2020 legislative session in Richmond—prior to the COVID-19 pandemic—the General Assembly passed a bill introduced by Delegate Terry Kilgore (R-Gate City) to create a Statewide Telehealth Plan.

The VDH/VHHA COVID-19 subcommittee on telehealth, chaired by Dr. Rheuban has begun to focus their efforts on developing recommendations for the Statewide Telehealth Plan. While some of the progress made on telehealth during the pandemic is exclusively in the hands of the federal government (such as Medicare coverage and regulatory waivers), significant policy changes and funding initiatives including Medicaid reimbursements and broad-band access may be achieved at the state level.

Court Rules Against Hospitals in Price Transparency Lawsuit

In late June, U.S. District Court Judge Carl Nichols ruled against the American Hospital Association (AHA) and hospital plaintiffs in a lawsuit challenging the U.S. Department of Health and Human Services’ sweeping rule regarding price transparency. That rule, finalized in November 2019, requires hospitals to publish negotiated rates with commercial insurers, as well as a list of 300 “shoppable” services. The rule is scheduled to take effect on January 1, 2021 and hospitals will face fines of up to $300 per day for failure to comply with its requirements.

In the ruling, Judge Nichols wrote that “HHS has the right to issue the rule because it considered the concerns of providers and payers, acknowledged conflicting information and explained its decision. The agency fulfilled its duty to examine evidence before it and connect it to the final rule.” The AHA plans to appeal the ruling.

Legislative Special Session

(Expected for August or September 2020)

A date has not yet been finalized for the forthcoming special legislative session of the Virginia General Assembly, but it is expected to be held in August or September. 
The purpose of the special session is to take action on new budget items that were frozen during the April veto session due to state revenue uncertainties associated with the pandemic. Governor Northam is expected to announce the FY2020 state revenue shortfall on July 10.

In addition to budgetary considerations, the Democratic majorities in the Senate of Virginia and House of Delegates have announced plans to intro-duce legislation addressing systemic racism, including criminal justice and policing reform, inspired by the civil rights protests following the May death of George Floyd while in Minneapolis, MN police custody.

Governor Northam’s Administration is also reviewing requests for the state’s remaining funding from the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act. VHHA member hospitals and health systems have requested that a portion of the funds be dedicated to reimbursing hospitals for expense related to surge capacity planning. Hospitals have experienced dramatic financial losses due to decreased patient visits, the temporary suspension of scheduled procedures, and the expenses associated with expanding surge capacity, increasing staffing, and procuring personal protective equipment (PPE) for the treatment of COVID-19 patients.

Hospitals’ investment in the COVID-19 response helped saved the state tens of millions in avoided costs, but despite their significant financial losses, Virginia’s hospitals and health systems have not received adequate financial assistance from the federal and state government. Governor Northam’s Administration has not yet responded to the request.