Summary
The House returns for a two-day session to adopt the Senate-approved $3.5 trillion budget resolution (S. Con. Res. 14) needed to begin the reconciliation process for enacting many of President Biden and congressional Democrats’ legislative priorities. However, with the group of nine moderate Democrats still opposed to the planned sequence of votes (budget resolution first, bipartisan infrastructure package second), House Speaker Nancy Pelosi (D-CA) does not have the votes. Reps. Josh Gottheimer (D-NJ), Carolyn Bourdeaux (D-GA), Ed Case (D-HI), Jim Costa (CA), Henry Cuellar (D-TX), Jared Golden (D-ME), Vicente Gonzalez (D-TX), Kurt Schrader (D-OR) and Filemon Vela (D-TX) reiterated their opposition in an op-ed yesterday.
Still, the House is likely to move quickly on the budget resolution, especially since progressives (who outnumber moderates) strongly support passing the budget resolution before the infrastructure package. We could see House Democratic leadership provide moderates with some assurances that the House will vote on the bipartisan infrastructure package sooner than planned but after passage of the budget resolution. In her latest Dear Colleague letter (August 21), Pelosi stated her plan to “enact both the Build Back Better Plan and the bipartisan infrastructure bill before October 1st, when the BIF would go into effect.” After this brief session, the House is not scheduled for floor votes until September 20. House Democratic leadership could add another voting day earlier in September.
The House Rules Committee is meeting this morning to set up floor debate for the continuing resolution, which will likely take place tomorrow, and the bipartisan infrastructure package for later this year (possibly the week of September 20, the earliest date that floor votes are scheduled, if the House sticks to Pelosi’s plan). Committees have until September 15 to draft their respective bills that meeting the spending targets outlined in the $3.5 trillion budget resolution.
Regulatory Update
A number of rules arrived at the Office of Management and Budget (OMB) last week, signaling what the Administration is currently aiming to move forward through its regulatory authorities. First, pursuant to President Biden’s recent Executive Order (EO) on promoting competition in the U.S. economy (WHG summary here), a proposed rule and draft guidance from the Food and Drug Administration (FDA) regarding over the counter (OTC) hearing aids appeared at OMB for review. Per the EO, the intent of these actions will be to authorize the sale of hearing aids OTC, bypassing the need for costly specialist evaluations that the Administration says drives the cost of hearing aids currently to an average of $5,000 per pair.
In addition, the final rule for the Administration’s updates to the Affordable Care Act (ACA)’s payment parameters for 2022 and beyond also arrived at OMB for review. In the proposed rule (WHG summary here), the Centers for Medicare & Medicaid Services (CMS) proposed a number of changes to improve affordability in the individual market. Such proposals include:
- allowing Exchanges to offer a new special enrollment period each month for consumers with low incomes;
- lengthening the current annual open enrollment period for an additional 30 days; and
- reinstituting the duties of Exchange Navigators to aid consumers seeking support for purchasing insurance on the Exchanges.
Of final note, the proposed rule included changes to rescind and replace the regulatory text that codified the Trump Administrations 2018 guidance for section 1332 waiver guardrails, which loosened the “statutory guardrails” originally designed to prevent states from using 1332 waivers to weaken individual market coverage options.
Each of these above developments will have to clear OMB review before their release and publication in the Federal Register. Their target dates for publication are listed as June 2021, suggesting their release could be in the very near term. We note, however, that the FDA has until approximately November 6 per the EO before it must promulgate regulations concerning OTC hearing aids.