Health Policy New Year’s Update

Jan. 4, 2022

We would like to provide an update on a number of items of direct concern to our member practices with respect to the status of the OSHA and CMS vaccine mandates as well as new regulatory changes that are now in effect. 

Vaccine Mandates



Regarding the CMS regulation, the following are the most up-to-date facts:

  • Currently, the implementation and enforcement of this regulation is enjoined in the following 25 states:  Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. Facilities in these states are not required to comply with the rule, pending future developments in the litigation & surveyors will not monitor compliance.
  • The rule does apply to facilities participating in the Medicare and Medicaid programs in the remaining 25 states, the District of Columbia, and the territories. 
  • Facilities covered by this regulation must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by January 27, 2022, 30 days following the publication of the guidance. 
  •  All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by February 28, 2022, 60 days following the publication of the guidance.
  • Religious exemptions are still allowed and must be requests should be evaluated on an individual basis in consultation with your local counsel and HR experts.

As you will recall, this regulation was relevant to almost all employees (and many vendors, consultants and others) who provide services in facility settings and is discrete from the OSHA regulations, which were more broadly applicable to most workplaces, but are currently not being implemented due to legal challenges (see below). The most significant of these changes pertains to the vaccination deadlines.


As mentioned in an earlier email, SCOTUS is hearing oral arguments on the legal challenges to the CMS mandate on January 7th. Given the fast-track nature of the challenges, it is possible SCOTUS will issue its opinion on the injunctions before the 1/27/22 phase 1 implementation dates.



The situation is different for the OSHA vaccine mandate. OSHA has announced that it is “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA states that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.” OSHA has also promised to “work closely with the regulated community to provide compliance assistance.” Like the CMS vaccine mandate, however, OSHA’s position on compliance may change following the Supreme Court’s ruling on the challengers’ applications to re-stay the mandate.



Both these cases are to be heard by SCOTUS on January 7, 2022.  In an unprecedented move for emergency applications to the Supreme Court, SCOTUS will hear oral arguments on both cases—in general for such applications the arguments are restricted to written briefs. Importantly, the Supreme Court is not being called upon to rule on the validity of either of these two rules. Instead, SCOTUS accepted the cases to review whether the temporary injunctions that had been issued to block the rules were properly put into place, so even if the stays are kept in place the issue may still be up for grabs.  Legal analysts are divided on how the Court will view this, but most feel that the administration is on firmer ground with respects to CMS vs. OSHA.  That said, the outcome is very much a toss-up and member practices need to evaluate their needs carefully on an individual basis.


No Surprises Act

On January 1, 2022, the No Surprises Act took effect.  While LUGPA worked closely with Congress to pass an acceptable bipartisan, bicameral solution, unfortunately, the final rule promulgated by the administration deviated from the bill, particularly with respect to the determination of out-of-network fee, with the rule being implemented in a manner much more favorable to insurance companies. Subsequent to its passage the rule has seen multiple legal challenges filed the status of which are still very much up in the air.


The difficulties that providers may face and the status of legal challenges notwithstanding, this bill has received substantial publicity and is being touted as a boon for patients—it behooves all LUGPA practices to be aware and be in compliance with the Act’s provisions.  While a detailed review of the Act is beyond the scope of this update, excellent reviews can be found at both Becker’s Hospital Review and Kaiser Family Foundation websites. 


At a minimum, LUGPA member practices should:

Prepare and post a one-page Public Disclosure. 

  1. The Act requires health care facilities and providers to provide a clear and understandable one-page disclosure providing a summary of the Act and its requirements to applicable patients.
  2. This disclosure must be posted on an easily accessible portion of the provider facility’s website and must be provided to affected patients prior to the patient’s receipt of a bill.

Stop out-of-network balance billing to any affected patient

  1. Under this Act, it is the responsibility of the provider and facility to determine which patients are in-network versus out-of-network
  2. It is also the responsibility of the provider and facility to negotiate payment amounts with any affected patient’s health plan.

If appropriate, obtain the necessary written waiver of the Act’s protections. 

  1. The Act requires that patients and facilities provide patients with a written consent form at least 72 hours prior to a scheduled appointment, or three hours before a same-day appointment.
  2. At present, the consent form must be separately provided to the patient and needs to include:
    1. whether pre-authorization is required.
    2. what in-network providers may be available to provide the service; and
    3. a good-faith cost estimate for the total bills for the proposed out-of-network care—the provisions detailing this are the subject of future rulemaking.


Again, these are general recommendations and should not be construed as legal advice, LUGPA member practices should consult with their local counsel to determine how best to comply with these regulations.


Split Share Billing

CMS has updated the rules regarding documentation for visits in which different components were done by both an NP and a physician provider from the same group in the hospital setting.  Split share is never used for a hospital employee or in the office.  The regulations are confusing as written so the below is provided to provide some clarity as to the rule.


The following are the current requirements for Split Share billing:

  1. A split (or shared) E/M visit is one in which services are provided in the facility setting by a physician and an NP in the same group.
    1. The documentation in the medical record must identify the two individuals who performed the visit 
  2. The visit is billed by the practitioner who provides the substantive portion of the visit and the individual providing the substantive portion must sign and date the medical record. 
  3. If the APP is the disproportionate provider of record, then the visit should be billed at 80%. 
  4. The substantive portion of the visit will be defined as either:
    1. the entirety of at least one of the following components of E/M
      1. History
      2. Physical Exam
      3. Medical Decision Making
    2. greater than half of the total time documented.
  5. Billing these services will require use of HCPCS modifier -FS (Split or shared evaluation and management services)


Thus, if the MD is to be the billing provider, he or she must personally attest to completion of one (or all) of the three components of the H&P/MDM elements or documentation of >50% of the total time attributed to the visit.  For example, if the NP documents 5 minutes of time, the MD must have spent (and document) at least 6 minutes.   Importantly, the provider who is performing the substantive portion (and thus billing) must sign and date the medical record.  This is applicable to new as well as established patients, and initial and subsequent visits, as well as prolonged services. Finally, the criteria to establish the visit type and level are the same, both as they relate to clinical and time documentation requirements. Note that these rules are for 2022 only, at this point CMS has proposed that by 2023 the E/M component will be phased out and the only requirement will be the >50% total time stipulation.

Respectfully submitted,

Deepak A. Kapoor, MD
Chair, Health Policy Committee

Mara R. Holton, MD
Vice Chair, Health Policy Committee

David Albala, MD
Member, Health Policy Committee

Tom Barker
Partner, Co-Chair, Healthcare Practice, Foley Hoag LLP