Texas Hospital Association

Health Care Advocate: July 7, 2022

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Advocacy News 
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Table of Contents

Texas Supreme Court Blocks Injunction in Abortion Case

Late last Friday, the Texas Supreme Court issued a stay partially blocking an injunction issued by a district judge in Harris County that relates to the enforceability of Texas’ almost century-old abortion laws. The Harris County case had been filed by abortion providers after the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade and Planned Parenthood v. Casey. Immediately after the issuance of the Dobbs decision, Texas Attorney General Ken Paxton issued an advisory indicating, among other things, that laws passed in 1925 that prohibit abortion were never repealed and while they were unenforceable while Roe was on the books, “they are still Texas law” and “prosecutors may choose to immediately pursue criminal prosecutions” based on violations of those laws. According to the Advisory, “abortion providers could be criminally liable for providing abortions starting today (June 24).”

The Harris County lawsuit was filed on June 27 against the district attorneys of six urban and suburban Texas counties and the executive heads of the Texas Medical Board, the Texas Board of Nursing, the Texas Health and Human Services Commission, and the Texas State Board of Pharmacy. The following day, a district judge in Harris County issued an injunction blocking the enforcement of those old criminal statutes by the defendant district attorneys and state agencies. Gen. Paxton immediately appealed on behalf of the state agency executives, and the Texas Supreme Court issued its order late Friday that the injunction “is stayed as to [the state agencies] only pending further order of this Court.”

The stay theoretically allows the affected state agencies to enforce the 1925 statutes. Since those statutes are criminal statutes, it is not clear what enforcement authority, if any, those agencies have other than to potentially pursue disciplinary action against their respective licensees. Gen. Paxton’s Advisory and the proceedings in Harris County and the Texas Supreme Court add to the confusion and uncertainty of the enforceability of the 1925 laws, which the federal Fifth Circuit Court of Appeals had found were “impliedly repealed” in a case in 2004. HB 1280, passed in 2021, will add clarity to Texas law when it becomes effective in mid to late August. HB 1280 enacts chapter 170A of the Texas Health and Safety Code and provides for criminal, civil, and licensing board actions against anyone who provides an abortion in Texas except in narrow circumstances related to the health of the mother. (Steve Wohleb, J.D.)

$38 Million in State Funds Available for Rural Hospital COVID-19 Relief

The Texas Health and Human Services Commission is accepting applications for the Rural Hospitals – COVID-19 in Healthcare Relief program. Up to $38 million will be distributed to Texas rural hospitals affected by the COVID-19 pandemic. This competitive funding award comprises the second half of $75 million in total distributions the 87th Legislature appropriated from the state’s allocation of American Rescue Plan Act funds for COVID-19 relief. All eligible rural hospitals are encouraged to apply for the awards, which range from $100,000 to $999,999, to be spent on allowable activities and require a one-time funding utilization report. Hospitals in full compliance with price transparency regulations and statewide reporting of COVID-19 federal funds will be preferentially scored in the award process. Applications are due Aug. 4, 2022. (Anna Stelter)

Behavioral Health Hospitals Added to SB 809 Reporting Requirements

On June 28, 60 behavioral health hospitals were added to the SB 809 Reporting List. HHSC has informed THA that they are working on notifying behavioral health facilities of their compliance requirements. As a reminder, Senate Bill 809 and Rider 143, 87th Legislature, requires hospitals to submit monthly reports of federal money received during the COVID-19 public health emergency to the state. The monthly report form is available here. Hospital-specific compliance information is available here. All hospitals are required to submit a monthly report regardless of whether they received provider relief funds that month. If no federal funds were received, enter $0 for all questions regarding the funding. More information is available at the HHSC Provider Finance Communications webpage under the Monthly SB 809 / Rider 143 COVID-19 Reporting subheading, including steps to take if you are delinquent in submitting any forms or if you believe your reporting submission status is listed in error. Deadlines recur on the first of every month. The reporting requirement will expire the earlier of Jan. 1, 2023, or the end of the federal public health emergency. (Anna Stelter)

New Cybersecurity Advisory Highlights Maui Ransomware

This week, the FBI and other agencies issued a joint cybersecurity advisory to provide information on Maui ransomware, which has been used by North Korean state-sponsored cyber actors since at least May 2021 to target health care and public health sector organizations. This joint advisory provides information, including tactics, techniques and indicators of compromise, on Maui ransomware obtained from FBI incident response activities and industry analysis of a Maui sample. The advisory urges health care organizations as well as other critical infrastructure organizations to implement mitigations to reduce the likelihood of compromise from ransomware operations. Victims of Maui ransomware should report incidents to their local FBI field office or CISA. (Carrie Kroll/Fernando Martinez)

HRSA Delays HPSA Designation Withdrawals

This week, the Health Resources and Services Administration announced it would be delaying health professional shortage area withdrawals this year, a significant positive move particularly for rural hospitals. HPSAs are designated for shortages of primary care, dental or mental health professionals in certain geographic areas, population groups and facilities. This year, HRSA had “proposed for withdrawal” a significantly high number of HPSAs. Losing a HPSA designation, and the access to federal funds it affords, has significant negative consequences for patients and communities.

The federal notice states “Given the COVID-19 pandemic’s impact on the health workforce and health care service delivery, HRSA is providing a longer transition time for jurisdictions and facilities to prepare for potential change of HPSA designations. HPSA designations that are currently proposed for withdrawal will remain in this status until they are re-evaluated in preparation for the publication of the 2023 HPSA Federal Register Notice. If these HPSAs do not meet the requirements for designation at the time of the publication of the July 2023 HPSA Federal Register Notice next year, they will be withdrawn. This additional time will allow jurisdictions to re-evaluate their HPSAs against the designation criteria, and plan for potential changes in staffing.” For additional background, see AHA’s January letter advocating for the delay. (Cameron Duncan, J.D./Heather De La Garza, J.D.)

Upcoming Hearing to Focus on State Use of Federal COVID-19 Funds

The Texas Senate Committee on Finance will convene on July 11 to hear invited and public testimony on the state use of federal COVID-19 relief funds provided under the Coronavirus Aid, Relief, and Economic Security Act, Coronavirus Response and Relief Supplemental Appropriations Act, the American Rescue Plan Act, Infrastructure Investment and Jobs Acts, and similar federal legislation. The committee will evaluate the overall fiscal impact of the COVID-19 pandemic on state agencies, including costs incurred due to federal mandates. THA members will testify, and THA will keep members up to date on developments. (Jennifer Banda, J.D./Carrie Kroll/Sara González/Cameron Duncan, J.D.)

State Issues COVID-19 Therapeutics Reminders

DSHS recently issued COVID-19 therapeutics reminders as COVID-19 cases and hospitalizations again rise in Texas. Therapeutics are available for high-risk patients with mild to moderate COVID-19. Per the NIH Guidelines for Therapeutic Management of Non-hospitalized Adults update on April 8, 2022, the preferred therapies in order of preference are 1) Paxlovid, and 2) Veklury (remdesivir). Alternative therapies for use when neither of the preferred therapies are available, feasible to use, or clinically appropriate include bebtelovimab and Lagevrio (molnupiravir).

The state urges providers to use their best clinical judgement in working through the NIH guidelines and consider prescribing the oral antiviral medication, Paxlovid, to all patients who are eligible. Paxlovid is widely available for high-risk Texans with symptomatic COVID-19; bebtelovimab remains the therapeutic with the most limited supply. Considering Paxlovid first will help preserve the other options for patients who need them. Patients and clinicians can use the federal therapeutics locator to find the nearest pharmacy with Paxlovid in stock. As a reminder, the state’s therapeutics and treatments information is available online for providers and patients.

Also, as hospitalizations increase, hospitals are reminded that guidance for health care workers was updated in January to allow more flexibility to keep staff bedside. The revised guidance takes into account a person’s exposure, vaccination status and whether or not they are symptomatic as part of the assessment of risk and application of workplace restrictions for health care workers with exposure. (Carrie Kroll)

July 10 Deadline: Federal Public Comment on Texas Medicaid Postpartum Coverage

As the July 10 deadline nears, THA encourages members to comment in support of a Texas amendment to the Texas Healthcare Transformation and Quality Improvement Program (THTQIP) section 1115 demonstration proposing to provide an additional four months of postpartum Medicaid eligibility to women after delivery or involuntary miscarriage. If approved by the Centers for Medicare & Medicaid Services, the amendment grants women a total of six months postpartum coverage, up from 60 days. THA’s comment letter is available as a guide, if needed. A six-month extension is a first step toward the eventual goal to achieve a full 12 months postpartum coverage. Texas hospitals backed House Bill 133 in the 87th Legislature, Regular Session, authorizing the state to extend Medicaid coverage from 60 days to six months postpartum. (Anna Stelter/Sara González)

LPPF Reporting Due July 10 for Local Governments

The Texas Health and Human Services Commission recently created a new Local Funds Monitoring Program to oversee and monitor the nonfederal share of Medicaid payments transferred to HHSC by local governmental entities, and to manage new reporting requirements. Local units of government required to complete reporting must enter their data quarterly in the Local Provider (LoPro) Reporting System by July 10. The next reporting deadline will occur Oct. 10. For any questions relating to local funds used for Medicaid payments, LPPFs, or the LoPro Reporting System, please contact the Local Funds Monitoring team at [email protected] or call (737) 867-7877. (Anna Stelter)

State Seeks Members for Perinatal Advisory Council

The Texas Health and Human Services Commission is seeking members for the Perinatal Advisory Council to advise on issues related to the hospital designation program for levels of care for neonatal and maternal services. The HHSC executive commissioner will appoint members to the council to serve a term expiring Sept. 1, 2025. Applications are due July 20. Interested parties should review the application letter and committee website for details. Applicants are encouraged to use the online application form to apply to be on the committee. (Sara González/Carrie Kroll)

Last Call: Register for THT’s 2022 Healthcare Governance Conference

Members are encouraged to register for the upcoming Texas Healthcare Trustees’ 2022 Healthcare Governance Conference, July 28-30 at the Omni Fort Worth Hotel. Virtual and in-person registration options are still available, as well as preconference workshops and the annual golf tournament. HGC is designed specifically for hospital trustees, governance professionals and executives who want to learn more about the latest governance, policy and market developments that impact Texas hospitals. Learn more and register here. (Lindsay Thompson)

Texas Register Highlights

The Texas Medical Disclosure Panel (Panel) adopts amendments to §601.2, concerning Procedures Requiring Full Disclosure of Specific Risks and Hazards–List A; §601.7, concerning Informed Consent for Electroconvulsive Therapy; and §601.8, concerning Disclosure and Consent for Hysterectomy. The amendments are adopted in accordance with Texas Civil Practice and Remedies Code §74.102, which created the Panel to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians to their patients or persons authorized to consent for their patients and to establish the general form and substance of such disclosure. (July 1) (Cesar Lopez, J.D.)

Federal Register Highlights

The Centers for Medicare & Medicaid Services (CMS) proposes a rule which would establish conditions of participation that Rural Emergency Hospitals (REH) must meet to participate in the Medicare and Medicaid programs. These requirements are intended to ensure that a high quality of care is furnished by REHs. This proposed rule also includes changes to the requirements Critical Access Hospital would have to meet to participate in the Medicare and Medicaid programs. Proposed payment policies and enrollment policies for REHs will be developed under separate rulemaking. (July 6) (Cesar Lopez, J.D.)