Summary
The House and Senate have both recessed until after the November elections, though the Supreme Court starts a new term today. The Court is still weighing what cases they will take up over the 8-month term. One case not on the docket, but that could have the most important repercussions, is if the Supreme Court decides to weigh into the outcome 2024 Presidential election. Below we have summarized several health care and public health cases that the Court has agreed to hear this term.
- Gun Violence Prevention – In Garland v. VanDerStok, the Supreme Court will decide whether the Biden-Harris Administration’s rule issued by the Bureau of Alcohol, Tobacco and Firearms to regulate “ghost guns” – a firearm without a serial number that can be made from scratch or with a kit – under the Gun Control Act. The U.S. Court of Appeals for the Fifth Circuit and a district judge blocked the rule. The rule requires “ghost guns” to be subject to the same regulations that apply to commercially manufactured, fully assembled firearms, such as background checks, serial numbers (fact sheet). It is part of President Biden’s comprehensive gun crime reduction strategy. Oral arguments are on October 8.
- Gender Affirming Care- In U.S. v. Skrmetti the Supreme Court will decide whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment. Over the past three years, 26 Republican-controlled states have passed laws restricting gender-affirming care for minors. Most of the laws ban puberty blockers, hormone treatment and surgery for those under 18. Some include provisions that allow those already receiving treatment to continue. If the court strikes down Tennessee’s law states would no longer be able to ban gender-affirming care outright.
- Medicare DSH Calculation – In Advocate Christ Medical v. Becerra, the Supreme Court will decide how the Department of Health and Human Services (HHS) can calculate Medicare disproportionate share hospital (DSH) payments. Hospital groups submitted an amicus brief arguing the current method for counting supplemental security income eligible recipients in the Medicare DSH payment formula conflicts with a 2022 Supreme Court ruling in Becerra v. Empire Health Foundation. They contend the calculation undercounts the number of SSI-eligible populations, resulting in an estimated loss in DSH payments of about $1 billion per year. The U.S. Court of Appeals for the D.C. Circuit and a district judge ruled in favor of HHS. Oral arguments are on November 5.
Regulatory Update
The Office of Management and Budget (OMB) completed reviewing the following rules:
- Medicare Appeals – The final rule would establish new appeals processes for Medicare beneficiaries who have an inpatient hospital admission changed to outpatient by a hospital, and meet other conditions.
OMB is also reviewing the following:
Medicare
- Physician Payment – The final rule would make changes to the Medicare physician fee schedule for calendar year 2025 (November 2024).
- Outpatient Payment – The final rule would make changes to the Medicare hospital outpatient prospective payment system for calendar year 2025 (November 2024).
- Home Health – The final rule would make changes to the Medicare home health prospective payment system for calendar year 2025 (November 2024).
- ESRD – The final rule would make changes to the Medicare End-Stage Renal Disease (ESRD) payment system for calendar year 2025 (November 2024).
- Medicare Advantage – The proposed rule would make policy and technical changes to the Medicare Advantage, Medicare Prescription Drug Benefit, and Medicare Cost Plan Programs, and PACE for contract year 2026 (September 2024).
Private Insurance
- Preventive Services – The proposed rule is titled, “Enhancing Coverage of Preventive Services under the Affordable Care Act.” It was not included in the latest Unified Agenda.
Other Topics
- Healthcare System Resiliency and Modernization – The proposed rule would revise and update national emergency preparedness requirements for Medicare- and Medicaid-participating providers and suppliers (was set for December 2023).
- Retail Pharmacy Standards – The final rule would require pharmacies and vendors to modify the currently adopted National Council for Prescription Drug Programs (NCPDP) standards to the Telecommunications Standard Implementation Guide Version F6 (F6); Batch Standard Implementation Guide version 15; and Batch Standard Subrogation Implementation Guide version 10 (was set for February 2024).
- Organ Transplants – The final rule would establish a new mandatory Medicare payment model, the Increasing Organ Transplant Access Model (IOTA Model), that would test whether performance-based incentive payments paid to or owed by participating kidney transplant hospitals increase access to kidney transplants for patients with end-stage renal disease (ESRD) while preserving or enhancing the quality of care and reducing Medicare expenditures.
Other Updates
Last week, the Department of Agriculture (USDA) announced an investment of $1.7 billion for purchase of locally and regionally produced food through the Commodity Credit Corporation for emergency food assistance. $1.2 billion will go to food to be delivered to schools, child care facilities, and food banks. The remaining $500 million will be used to purchase domestic commodities for emergency food providers. USDA emphasizes that the purchases will also help farmers find new markets and recover from supply chain disruption.