During the end of its term, the Bush Administration adopted a new rule, 45 C.F.R. § 2.2, that severely limits state health departments and contractors from participating in private lawsuits involving healthcare providers that participate in federal assistance programs (i.e. Medicare) without approval by the head of the Department of Health and Human Services (“HHS”). Supplemental information regarding the rule explains that it was justified because federal employees and contractors were being forced to participate in private cases which diverted them from their federal survey, certification and enforcement responsibilities. However, exemption from testifying or producing documents will not apply to employees or contractors who conduct only a state survey or complaint investigations.
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