For more information about this blog post, please contact Ryan L. O’Neill or Labinot Alexander Berlajolli.

SCOTUS Rules Prescriber Intent Matters in Opioid Cases, Posing New Challenges for Prosecutors

The U.S. Supreme Court ruled on June 27, 2022 that prosecutors bringing charges under the Controlled Substances Act (“CSA”) must show that providers knew they lacked a legitimate medical purpose in order to prove when it comes to proving allegations of excessive prescribing of opioids and other addictive drugs. The ruling nominally involves CSA convictions of "pill mill" prescribers in the Tenth and Eleventh Circuits, but carries nationwide implications for criminal and civil cases related to sales and distribution of prescription narcotics for recreational use. The rulings held that the Department of Justice "must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so," as opposed to referencing a “reasonable physician” standard, in order to secure a conviction for improper prescribing.

Whether providers challenge previous convictions based on this decision remains to be seen. The full text of the ruling may be found here.

CMS Proposes CY 2023 Home Health Prospective Payment System Rate Update and Home Infusion Therapy Services Requirements

The Centers for Medicare and Medicaid Services (“CMS”) issued the calendar year ("CY") 2023 Home Health Prospective Payment System ("HH PPS") Rate Update proposed rule, 87 FR 37600, which would update Medicare payment policies and rates for home health agencies ("HHAs"). This rule includes proposals and routine updates to the Medicare HH PPS and the home infusion therapy services’ payment rates for CY 2023, in accordance with existing statutory and regulatory requirements. In addition, CMS is proposing to apply a permanent prospective payment adjustment to the home health 30-day period payment rate to account for any increases or decreases in aggregate expenditures, as a result of the difference between assumed behavior changes and actual behavior changes, due to the implementation of the Patient-Driven Groupings Model ("PDGM") and 30-day unit of payment.

CMS issued a fact sheet on the proposed rule, which may be accessed here. Comments are due on August 16, 2022.

CMS Proposes FY 2023 Hospital Inpatient Prospective Payment System and Long-Term Care Hospital Prospective Payment System Updates

CMS recently issued the fiscal year ("FY") 2023 Medicare Hospital Inpatient Prospective Payment System ("IPPS") and Long‑Term Care Hospital ("LTCH") Prospective Payment System ("PPS") proposed rule, 87 FR 28108. The proposed rule would update Medicare fee-for-service payment rates and policies for inpatient hospitals and LTCHs for FY 2023. The proposed policies in the IPPS and LTCH PPS rule also build on key priorities to better measure healthcare quality disparities and to improve the safety and quality of maternity care.

CMS issued a fact sheet on the proposed rule, which may be accessed here. Several interest groups, including the American Hospital Association, commented on aspects of the FY 2023 IPPS update in light of current inflation concerns during the comment period due to CMS’ proposal to cut rates.