Summary
The Senate returns this week from a five-week August recess, while the House still has another week of recess to enjoy. As we have discussed over the last month in Framing the Week, Congress has a lot of healthcare focused legislation to address in the short three weeks both sides of the Capitol will be in session in September. Site neutral and transparency policies, pharmacy benefit manager (PBM) transparency and reform legislation, and trying to find a way to eliminate drastic cuts that are scheduled to hit safety net hospitals are also in the mix to be included in a broad healthcare package at the end of the year.
Top of the list, however, is going to be keeping the government in operation beyond September 30. So far, the full House has passed one appropriations bill, and the Senate has not passed any. The Senate Appropriations Committee has passed all 12 of their bills however and is expected to start moving them through the floor in packages of a few bills at a time, with the less controversial bills to start. Majority Leader Chuck Schumer (D-NY) sent a Dear Colleague letter to Senate Democrats last Friday outlining the very busy agenda ahead.
The House Appropriations Committee has passed 10 of the 12 bills, with the Labor-HHS and Commerce-Justice-Science bills stuck in Committee. We are hearing they may try to start bringing small “minibus packages” of bills to the floor the second week of September, including the DOD and/or Homeland Security bills. The overall funding totals between the House and Senate remain a major sticking point as the Senate bills are funded at the levels agreed to in the Fiscal Responsibility Act (also known as the bipartisan debt ceiling deal), with an additional $13+ billion in emergency spending. The House, on the other hand, used the debt ceiling deal as a starting point, and then cut an additional $119 billion while simultaneously rescinding $115 billion in recent spending.
In recent weeks House Speaker Kevin McCarthy has indicated that he favors passing a Continuing Resolution (CR) that will keep the government in operation until mid-early November. However, several members of the House Freedom Caucus have indicated they would have no problem shutting down the government, putting McCarthy in a very tricky position. It is also important to remember that the Fiscal Responsibility Act included a provision that stated if a final budget isn’t passed and enacted by January 1, a 1% across-the-board spending cut goes into effect for all defense and non-defense programs.
Add to the mix the White House request over $40 billion in supplemental funding for natural disasters, enhanced border security and the ongoing war in Ukraine. Not all lawmakers are unified in the amount of money needed, or if Ukraine funding should be included in this package. However, Senate Republican leadership is strongly in support of additional Ukraine funding, which means the two won’t likely be separated. Needless to say, it will be a tense few weeks on Capitol Hill!
Regulatory Update
The Office of Management and Budget (OMB) completed reviewing the first of two final rules intended to simplify the processes for eligible individuals to enroll and retain eligibility in Medicaid, CHIP and the Basic Health Program. The first final rule expected in September 2023 will remove barriers and facilitate enrollment of new applicants, particularly those dually eligible for Medicare and Medicaid. The second final rule expected in February 2024 will implement changes to align enrollment and renewal requirements for most individuals in Medicaid and promote maintenance of coverage.
OMB is also 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.