Summary
The House and Senate are both out today in observance of Yom Kippur, however they will return tomorrow with just days left until the end of the fiscal year, and a government shutdown looming. Last week Speaker McCarthy had a series of disappointments as he tried, and failed, to move a Continuing Resolution (CR) to keep the government in operation. This week, in order to appease Freedom Caucus members who want to pass each of the appropriations bills individually before passing a CR, House Republican leadership will try to pass four of the 12 individual appropriations bills, before trying once again for short-term CR. However, last week McCarthy could not muster the votes to pass the rule to allow for consideration of the Department of Defense Appropriations bill, typically the easiest of the appropriations bills to pass. So, needless to say, there is no guarantee any of these bills will pass. And, even if they do, it won’t prevent a shutdown.
Meanwhile, the Senate is not waiting for the House to pass a CR. Senate Majority Leader Chuck Schumer (D-NY) is in talks with Senate Republican Leader Mitch McConnell (R-KY) to draft their own CR, which will likely extend into early December and include funding for disaster relief and the Ukraine. They may run into their own partisan rancor with conservative Republican Senators like Rand Paul (R-KY) stating opposition to any CR that includes funding for the Ukraine. Last week the Senate struggled to pass their first appropriations “minibus” package that included the Committee passed Agriculture, Military Construction-VA, and Transportation bills. Senator Ron Johnson (R-WI) had a hold on the package due to his concerns that individual appropriations bills were not being passed individually.
Finally, there is an emerging group of moderate Republicans who are frustrated with the Freedom Caucus members stopping every attempt to pass a CR. They are quietly working with Democrats on a CR package that Democrats would introduce on the floor as a discharge petition, bypassing the Republican leadership. Nothing has materialized yet, and chances are this strategy may be what it takes to end a shutdown, but likely won’t be pulled together in time to prevent one.
The CR was not the only measure pulled from the House floor due to a lack of votes. The Lower Costs, More Transparency Act (Impact Health summary), a bipartisan bill that largely includes previously marked up and advanced legislation from the Energy & Commerce, Ways and Means, and Education and Workforce Committees was also unexpectedly pulled. While Energy & Commerce Committee Ranking Member Frank Pallone has endorsed the bill, the Ranking Members of the other two Committees have not. There are indications that leadership may try to put the bill back on the suspension calendar, adding it to the SUPPORT Act (summary) and a couple of other maternal health bills that have already been put on the suspension calendar.
Regulatory Update
The Office of Management and Budget (OMB) recently completed the review of a request for information regarding coverage of over-the-counter preventive products arrived at OMB for review last week. The RFI was not included in the Unified Agenda. It stems from President Biden’s Executive Order on Strengthening Access to Affordable, High-Quality Contraception and Family Planning Services, which requires HHS, Labor, and Treasury to pursue actions increasing access to affordable OTC contraception. The first and only FDA-approved OTC oral contraceptive will be available in early Q1 2024.
OMB is reviewing the following rules:
- CMS Enforcement of State Compliance with Medicaid Reporting and Renewal Requirements –The interim final rule would establish rules regarding CMS enforcement of states’ compliance with reporting requirements and renewal requirements during the period that begins on July 1, 2023 and ends on June 30, 2024. The interim final rule may codify existing guidance and provide more details on how CMS may enforce the requirements. The interim final rule was not included in the Spring 2023 Unified Agenda.
- Food and Drug Administration (FDA) Regulation of Laboratory-Developed Tests (LDTs) – Proposed rule would make explicit that LDTs are devices under the Federal Food, Drug, and Cosmetic Act and subject to FDA regulation.
- Annual Rulemaking for Commercial Insurers – Proposed rules for the CY 2025 Policy and Technical Changes to Medicare Advantage and Part D (expected in October 2023) and CY 2025 Notice of Benefit and Payment Parameters (expected in November 2023)
- Surprise Billing Regulations – A proposed rule to amend requirements for the independent dispute resolution (IDR) process, as well as a proposed rule to set fees for IDR. Due to legal challenges, the IDR process is temporarily suspended for all disputes.
- Conscience Rights in Health Care – Final rule to safeguard the rights of federal conscience and religious nondiscrimination while protecting access to care, including abortion.
- Skilled Nursing Facilities – Final rule to require the disclosure of certain ownership, managerial, and other information regarding Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities. Interestingly, the Unified Agenda forecasted action in February 2026.