On Jan. 14, the final rule entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, the Department of Labor (DOL) adopted, with changes, an Interim Final Rule (IFR) that amends Employment and Training Administration (ETA) regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas including H-1B nonimmigrant visas. The AMA opposed the IFR because of its potential to hurt access to care in rural and underserved communities.

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The new final rule will raise the entry-level salary tier from the current 17th percentile to the 35th percentile. From there, the wage levels will be set at the 53rd, 72nd and 90th percentiles, up from the current top three levels at the 34th, 50th and 67th percentiles. The wage levels for Tiers II and III will continue to be calculated based off the formula that Congress provided within the INA. The DOL acknowledged AMA’s comment that the IFR overly inflated wages for physicians, particularly in rural areas, due to the fact that the IFR resulted in a default wage of $208,000 a year for all four levels in a number of different locations. As such, the final rule eliminated the use of the default wage of $208,000 per year for all four wage levels in cases where BLS cannot supply a Level IV wage. The changes implemented within the final rule will be carried out in multiple steps over the next few years.

Physician practices that received Provider Relief Fund (PRF) payments exceeding $10,000 in the aggregate must register in the Provider Relief Fund Reporting Portal. While the Department of Health and Human Services (HHS) has not yet set a deadline to complete the reporting portal registration, physician practices are encouraged to enter their information in a timely manner to receive forthcoming notices from HHS about submitting the data reporting requirements. The PRF registration takes about 20 minutes to complete; all information must be entered in one session. It is not possible to save and later update the registration. Information required to register includes:

  • Tax ID Number (TIN) (or other number submitted during the application process (e.g., Social Security Number, Employer Identification Number (EIN))
  • Business name (as it appears on a W-9) of the reporting entity
  • Contact information (name, phone number, email) of the person responsible for submitting the report
  • Address (street, city, state, five digit zip code) of the reporting entity as it appears on a W-9)
  • TIN(s) of subsidiaries (if a provider is reporting on behalf of subsidiary(ies) - in a list delimited by commas, e.g.,123456789, 987654321, 135791357)
  • Payment information (for any of the payments received)
    • TIN of entity that received the payment
    • Payment amount
    • Mode of payment (check or direct deposit ACH)
    • Check number or ACH settlement date

Additionally, HHS has issued a new PRF requirements document consistent with the Coronavirus Response and Relief Supplemental Appropriations Act of 2021, which clarifies that physician practices have flexibility in how they calculate lost revenue due to COVID-19. This post-payment notice of reporting requirement document issued on Jan. 15, supersedes an earlier one dated Nov. 2. The document lists the five categories of data elements and includes options on how to apply PRF payments towards lost revenues.

Find more information on the reporting requirements and auditing of the Provider Relief Fund.

Last week, HHS issued two notices making changes to the U.S. Food and Drug Administration (FDA) regulated areas, reportedly without input from FDA officials. One requires the FDA to issue annual notices detailing how long it takes the agency to review new drug applications, while the other exempts a number of device categories from FDA oversight altogether moving forward. The devices in question, including a number of digital/software-based devices, had been the subject of COVID-19-related enforcement policies by FDA allowing them to be marketed without first undergoing agency review during the public health emergency.

While the AMA supports thoughtful efforts to increase transparency and reduce unnecessary regulatory burden, it has concerns over HHS’ intervention into areas that are properly within the FDA’s jurisdiction. The AMA is concerned that HHS actions could further undermine public trust in the decisions being made by public health institutions at a time when Americans’ confidence in these institutions is vital. President Biden has just announced a pause in regulations as a comprehensive review is conducted. The AMA welcomes this analysis and will communicate concerns to the Biden administration.

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