November 18, 2022
Health Policy Report – November 18, 2022
With Congress Divided, Questions Remain About Key Leadership Roles and the Federal Healthcare Policy Agenda
The 118th Congress will officially be divided when it begins in January. With Democrats narrowly maintaining control of the Senate and Republicans winning a slim majority in the House, it is unclear how this will impact the healthcare agenda in 2023 with key leadership roles for both parties still undecided.
In the House, Minority Leader Kevin McCarthy (R-CA) was nominated by Republicans to be the Speaker of the House for the 118th Congress, surviving a challenge from Representative Andy Biggs (R-AZ) in a 188-to-31 vote. In January, the Minority Leader must win at least 218 votes in the House, which may require offering concessions to the detractors in his party. It is far from certain what those concessions may be or if they will be enough to propel him to the role of Speaker of the House. Additionally, House Republicans also nominated Representative Tom Emmer (R-MN) to serve as House Majority Whip, ending a closely fought race with Representatives Jim Banks (R-IN) and Drew Ferguson (R-GA). Meanwhile, in the Senate, Minority Leader Mitch McConnell (R-KY) was re-nominated to continue leading his party, despite an unprecedented challenge from Senator Rick Scott (R-FL).
On the Democratic side, leadership remains in flux, with internal elections set for November 30. Speaker of the House Nancy Pelosi (D-CA) announced on November 17 that she would step down from party leadership after two decades at the helm of the House Democrats. Though she will no longer serve in leadership, she will remain in Congress as a rank-and-file member. Representative Hakeem Jeffries (D-NY) is widely expected to become the House Minority Leader in the next Congress, the first Black person to lead a political party in Congress. Representative Jeffries has served as chairman of the House Democratic Caucus chairman since 2019.
With Republicans in control of the House of Representatives, lawmakers in line to chair committees with jurisdiction over healthcare policy have made it clear that they will perform stringent oversight of CMS’ implementation of drug price negotiations that were created by the Inflation Reduction Act (IRA). However, Republicans do not have the votes in both chambers to repeal the law or overcome President Biden’s likely veto.
While committee assignments won’t be finalized until the next session of Congress begins, it is widely expected that Senators Bernie Sanders (I-VT) and Bill Cassidy, MD (R-LA) will lead the Senate Health, Education, Labor, and Pensions (HELP) Committee. If he does become the next chair of the committee, Senator Sanders would likely use his platform to push for expanded drug negotiations and Medicare for All.
To learn more about the Republican leadership, CLICK HERE and HERE.
To learn more about Democratic leadership, CLICK HERE and HERE.
To learn more about the GOP and the Inflation Reduction Act, CLICK HERE.
To read about the outlook for the Senate HELP Committee, CLICK HERE and HERE.
HHS Keeps COVID-19 Public Health Emergency in Place Through January 11, 2023
The COVID-19 public health emergency (PHE) will be extended past its current deadline of January 11, 2023, after the Department of Health and Human Services (HHS) did not notify states or providers that it would be ending the declaration by its informal deadline for making such an announcement. To help states and stakeholders prepare for the end of the PHE, HHS has previously said it would give at least 60-days notice before it would allow the PHE to expire. First declared in January 2020, the PHE has been renewed in 90-day increments. Should Secretary Becerra extend the PHE declaration, the new deadline would be in mid-April.
Public health officials expect another surge of COVID-19 cases this winter, driven by people spending more time indoors and an increase in omicron subvariants becoming dominant in the US. How the country fares against COVID-19 in the coming months will help determine whether the emergency declaration will be renewed again in the future. Some lawmakers have called for HHS to allow the PHE to lapse. In September, Senator Richard Burr (R-NC), Ranking Member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, sent a letter to President Biden asking him to clarify his Administration’s policy towards the COVID-19 public health emergency.
The public health emergency has dramatically impacted the nation’s healthcare system by expanding public health insurance through Medicaid and the Children’s Health Insurance Program (CHIP) and creating flexibilities for telehealth.
To read more about the PHE, CLICK HERE.
To read Senator Burr’s letter to President Biden, CLICK HERE.
Congressional Action Needed to Address Physician Cuts
With time running out in the 117th Congress, the pressure is on for lawmakers to act to address pending cuts to physicians. In addition to the 4.5% conversion factor cut included in the final Medicare Physician Fee Schedule (MPFS) for 2023 that is set to go into effect on January 1, an additional 2% sequestration cut is set to go into effect when the public health emergency ends.
Physician groups and lawmakers from both sides of the aisle are loudly opposing these cuts. Many are also calling for an extension of the 5% Alternative Payment Models (APM) incentive payments under the Medicare Access and CHIP Reauthorization Act (MACRA). A letter signed by more than 40 House lawmakers was recently sent to leadership requesting just that.
Also, on November 21, a letter signed by over 20 radiation oncology stakeholders including The Network was sent to Congressional leadership requesting that “Congress mitigate the impact of the clinical labor price update on those services most adversely impacted by the policy [including] relief from the conversion factor/budget neutrality cuts and waive PAYGO.” An analysis by the American Society for Radiation Oncology revealed a 5-year reduction in reimbursement for standard courses of radiation therapy for breast cancer (-18%), prostate cancer (-30%) and lung cancer (-34%). With these cuts impacting care, Congress must act before the end of the session.
The good news is that policymakers are considering acting on both measures before the end of the year. Representatives Ami Bera, MD (D-CA) and Larry Bucshon, MD (R-IN) have introduced the Supporting Medicare Providers Act of 2022 (H.R. 8800) to delay the MPFS cuts for one year. Representatives Bera and Bucshon, both physicians themselves, recently published an op-ed decrying the cuts and urging their colleagues to support their bipartisan bill.
Whether the full MPFS cut will be blocked remains to be seen. While anonymous sources on Capitol Hill note that lawmakers might not alleviate the full 4.5% cut—potentially opting instead to reduce the cut to somewhere between 2% and 3%––members of both parties and both chambers recognize the need for action.
To read the letter sent to House leadership supporting an extension of APM incentive payments, CLICK HERE.
To read the Radiation Oncology Stakeholder letter to Congressional Leadership, CLICK HERE.
To read a recent op-ed by Representatives Bera and Bucshon in support of their legislation to address these cuts, CLICK HERE.
Updates on the 340B Drug Pricing Program
On November 15, attorneys for three pharmaceutical companies argued that the federal law that created the 340B Drug Pricing Program does not prevent drugmakers from limiting shipments to pharmacies that have contracts with 340B health providers. Speaking before the US Court of Appeals for the Third Circuit, attorneys for Sanofi, Novo Nordisk, and AstraZeneca contended that they are not obliged to send drugs to an unlimited number of contract pharmacies.
Since 2020, the Department of Health and Human Services (HHS) has tried to prevent drugmakers from limiting shipments to certain contract pharmacies by issuing an advisory opinion and several letters that spurred multiple lawsuits. In addition to the case argued before the US Court of Appeals for the Third Circuit, several other courts are weighing disputes over the 340B program, including the US Court of Appeals for the District of Columbia Circuit and the US Court of Appeals for the Seventh Circuit. Though HHS’ advisory opinion has since been withdrawn, the drugmakers contend that the agency overstepped the federal rulemaking process by violating the Administrative Procedure Act.
As these cases make their way through the courts—with the potential for the issue to be elevated to the Supreme Court—there is a chance that Congress would consider 340B reforms in the next session. According to some analysts, Republicans and Democrats may come together in a divided Congress to clarify whether drugmakers are legally allowed to ship drugs to only one contract pharmacy per hospital and health clinic.
To read the HHS advisory opinion, CLICK HERE.