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Window to Washington

An inside-the-beltway look at the legislative and regulatory process.
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By Jessica Zigmond and Rich Daly

Supreme Court ruling, eyes turn to new regulations

By Jessica Zigmond

After the U.S. Supreme Court's ruling last week on the healthcare reform law, providers and payers can resume their focus on pending federal regulations. But they shouldn't hold their breath that HHS will release those rules before the November elections.

Voters will visit the polls in four months, which doesn't leave much time for HHS to issue some of the complicated regulations that healthcare providers and payers have anticipated. I spoke about this issue recently with Anne Hance and Eric Zimmerman, partners at the Washington office of law firm McDermott, Will and Emery. As Hance explained, these regulations include a proposed or final rule on essential health benefit packages that the Affordable Care Act requires of health plans. HHS has released two bulletins to offer the industry some guidance on essential health benefits, but they were not actual regulations and they generated many questions for the industry.

One question that the December 2011 bulletin generated is how much flexibility HHS will offer health plans as they design benefits, Hance said. According to the bulletin, HHS said it would require health plans to offer benefits that are “substantially equal” to the benefits in the benchmark plan that a state selects. Later, though, the department hinted that it would offer states some leeway: “We are considering permitting substitutions that may occur only within the 10 categories specified by the Affordable Care Act,” the bulletin noted. “However, we are also considering whether to allow substitution across the benefit categories.”

And then there are regulations unrelated to the healthcare law, such as a final rule from HHS' Health Resources and Services Administration on its 340B drug pricing program. HRSA released a proposed rule last summer that hospitals found favorable and pharmaceutical companies found objectionable, according to Zimmerman. Rules such as this one might be too controversial for the administration to address before the elections, Zimmerman said.

Follow Jessica Zigmond on Twitter @MHJZigmond.

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