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Policy Update - February 2, 2017

Federal Updates in This Issue
- NACHC Policy and Issues  Forum
- FTCA  Coverage for Volunteers
- Executive Order on the Affordable Care Act
- 340B Mandatory Recertification: January 25-February 22, 2017

State Updates in This Issue
- Governor Haslam's State of the State Address
- Tennessee General Assembly Reconvenes
- TPCA Hill Day
Federal Update

NACHC Policy and Issues Forum
The NACHC Policy and Issues Forum will be held from March 29 - April 1st in Washington, D.C. at the Marriott Wardman Park hotel. TPCA urges all health centers to attend as this is an important year with regard to Community Health Center funding, the future of the ACA, and the future of Medicaid. Registration for the NACHC Policy & Issues Forum is now open. TPCA will be scheduling meetings with the Tennessee Congressional delegation; P&I attendees will meet with their Members of Congress on Thursday, March 30th.

FTCA Coverage for Volunteers
Feldesman, Tucker, Leifer, and Fidell recently published this update regarding a change related to FTCA coverage for volunteers.
Please note: Until HRSA provides guidance on the implementation of this new protection for volunteers, health centers should not assume that volunteers at their centers are protected by the FTCA.  Once guidance is issued by HRSA, it will take health centers some time to submit volunteer sponsorship applications, receive approval from HRSA and come into compliance with the other requirements related to volunteers.   
On December 13, 2016, President Obama signed the 21st Century Cures Act.  The most important change that will apply for many federally qualified health centers is the expansion of Federal Tort Claims Act (FTCA) coverage to include coverage for volunteers.  Specifically, Section 9025 of the Act amends the Public Health Services Act to expand FTCA coverage to health professional volunteers at federally qualified health centers.
Section 224 of the Public Health Service Act provides immunity from lawsuits to Section 330-funded health centers and their officers, directors, employees and certain full-time and part-time contracted clinicians when the health center applies for and is deemed to be a Public Health Service (“PHS”) employee by the Health Resources and Services Administration (“HRSA”).  For purposes of professional liability protection (i.e. medical malpractice protection), these individuals and entities are treated as PHS employees.  Deemed health centers and their employees and covered contractors are immune from malpractice lawsuits against them. Instead of suing the health center or provider in a malpractice suit, the patient must file an administrative claim against the United States according to the requirements of the Federal Tort Claims Act.
With the passage of the 21st Century Cures Act, health professional volunteers at deemed health centers may also be deemed to be employees of the PHS and may receive FTCA coverage.

As described in the law, a person is considered a “volunteer” if:
  • The services are provided at health center facilities or off-site programs or events carried out by the health center;
  • The health center “sponsors” the practitioner;
  • The health care practitioner does not receive any compensation from the health center, patient or any third-party payer;
  • Before providing any service, the health center is required to post a notice at the site where the service is provided detailing the extent of the limitations of liability of the practitioner;
  • At the time the service is provided, the practitioner is licensed and certified as required by state and federal law; and,
  • At the time service is provided, the health center maintains relevant documentation that the practitioner meets the requirements to be a volunteer.
In order to “sponsor” a volunteer, the health center must submit an application to HRSA. Upon approval of the application, FTCA protection would provide coverage for the volunteer providing a health professional service eligible for funding under Section 330.

Executive Order on the Affordable Care Act
President Trump recently issued an executive order on the affordable care act; NACHC published a summary of what the order means.
 
In the first few days of his Administration, President Trump issued several Executive Orders.  Of particular note for the health care system and health centers was his first Executive Order, Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal.  We have heard from many health center advocates who want to know how this action will affect their centers and their patients.
Let's look at what Executive Orders are and how this will impact the health care environment.
 
What is an Executive Order?
By definition, an Executive Order is “a rule or order issued by the president to an executive branch of the government and having the force of law.”   These have been used by almost every President and are often a way for the President to use his or her authority to outline and implement policies, without Congressional approval.  They are also used symbolically to send a message about a President's policy agenda or proclamations such as “National Health Center Week.”
 
What did this Executive Order do?         
First and foremost, while the Executive Order does technically carry the weight of the law, it cannot and did not repeal the Affordable Care Act.  That cannot be done without Congressional action. The Executive Order stated that President Trump would like to see the “prompt repeal of the Affordable Care Act” and instructed Federal agencies, such as the Department of Health and Human Services, to the “economic burden” of the ACA while it waits for Congressional action. Specifically, the Executive Order instructed agencies to:
  • “take all actions consistent with law to minimize the unwarranted economic and economic burdens of the Act”
  • “waive defer, or grant exemptions from ACA requirements” and
  • grant states “greater flexibility in implementing health care programs”
The Order also states that agencies must follow proper rule-making procedure to change any regulations that are already in effect. What remains to be seen by all in Washington and across the country, is how the Administration follows through on these steps and what impact it will have on the health care environment.

One complication is timing – Representative Tom Price, the Administration's nominee for Secretary of Health and Human Services, and Seema Verma, the nominee for Administrator of the Centers for Medicare and Medicaid Services, are both awaiting confirmation before they can assume their new roles. Further, it is still unclear how the Executive Order will impact Congress' work on repealing and replacing the Affordable Care Act, including whether it might make them feel that they can take more time to decide upon next steps. One concern mentioned is that the new Administration might immediately stop enforcing the tax penalty behind the individual mandate, but during his confirmation hearing yesterday, Representative Price stated that he would not take administrative action to undermine the mandate in advance of Congress repealing and replacing the law.
 
340B Mandatory Recertification: January 25-February 22, 2017
Health Centers that are currently enrolled in the 340B Program must annually recertify that they are eligible to purchase drugs at 340B prices, and that they -- and all their contract pharmacies -- are fully compliant with all 340B requirements.  For 2017, the recertification period is scheduled for Wednesday, January 25 through Wednesday, February 22.  All participating health centers will receive an email from HRSA (sent to both the Primary Contact and Authorizing Official listed on the HRSA database) with instructions on how to recertify.  Health centers who fail to recertify during this period will no longer be eligible to purchase drugs at 340B prices.  For more information see Chapter Four of the NACHC 340B Manual for Health Centers.  Questions regarding registration, change requests, or recertification may be directed to the 340B Prime Vendor Program at 1-888-340-2787, or by sending an e-mail to ApexusAnswers@340bpvp.com.

State Update

Governor Haslam's State of the State Address
Governor Haslam presented his State of the State  address to a joint convention of the General Assembly on Monday, January 30. The Governor's 2017 priorities include several education initiatives, a gas tax increase to fund transportation needs, a half a percent decrease in Tennessee's food tax rate, and funding to increase broadband access in rural areas.The full text of Governor Haslam's speech, along with the FY 2017-2018 budget can be found at the link above.

Tennessee General Assembly Reconvenes
The Tennessee General Assembly reconvened on January 30, and the list of bills that have been filed continues to grow. TPCA is tracking several bills already; click on the bill number to see the entire bill text. TPCA will add to this list as the February 9th bill filing deadline approaches.

TPCA Hill Day
TPCA's annual Hill Day will take place on Wednesday, February 15th. Registration is open; Hill Day is an opportunity for health centers to meet with their legislators. Contact libby.thurman@tnpca.org for additional information.
 

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