Please don’t be the kid
Who waits to ask a question
Right before the bell
The Rundown
- Senate run-off election results fortify Democratic majority
- Year-end negotiations on federal funding, Medicare, and other key issues remain stalled
- Maternal health, defense policy, and marriage protection legislation advances
- Senate Finance Committee releases final working group draft on mental health parity
- CMS releases Medicare Advantage prior authorization proposed rule
- The latest from our desks
- Join Duke Health Advocacy Network
Federal Updates
Check your splits
Okay, folks, we more or less have a set 118th Congress – or at least what it should look like when the two chambers officially swear in members on January 3rd. Senator Raphael Warnock (D-GA) survived Tuesday’s run-off election, meaning that Democrats will hold a true – albeit just as slim – 51-49 majority next Congress. For Senate Democrats, this means no more power sharing agreement will be necessary with Senate Republicans, allowing them greater flexibility in identifying and clearing priorities through committee processes. Bipartisanship will still be necessary on nearly every major issue, but there will be some breathing room on setting the agenda.
What now? As we’ve mentioned in prior newsletters, we are watching closely how party leaders determine committee assignments for incoming members, and committee and subcommittee leadership assignments for returning members. North Carolina is losing its only representation on a congressional appropriations committee with the retirement of Rep. David Price (D-NC-04). Might another member of the NC congressional delegation fill that void?
Holiday hold up
We get cheeky in this space sometimes, but in our experience, we’re probably not yet close enough to key deadlines for an announcement on a definitive path forward of many priorities in the lame duck session. At least one of the authors of this newsletter thinks this is due in part to some of the 535 voting members enjoying a flair for the dramatic, but the reality is that all of this stuff is incredibly complicated. Members do keep in mind the best interests of their constituencies, and congressional processes can feel redundant and time consuming because they help filter out things that might otherwise impede progress.
In short, we’re getting somewhere… hopefully… soon(ish).
FY 2023 federal funding
Apologies if this feels like a repeat, but…
An additional week of negotiations around the FY 2023 spending bills seems to have left everyone exactly where they were a week ago: continuing to disagree on the top-line spending number. The two sides remain tens of billions of dollars apart on this number, and the December 16th deadline when the current continuing resolution (CR) to keep the government funded will expire is getting closer and closer.
If there’s no top-line deal by the beginning of next week, Senate Democrats plan to offer their own version of an omnibus spending package to cover all of FY 2023. If Republicans reject that offer, which is all but guaranteed, then Democrats will offer a full-year CR at current funding levels, which no one really wants. While this pathway would prevent a potential government shutdown, it would also mean sacrificing potential increases for programs and agencies like NIH, keeping baselines flat, and adding a layer of complication to advocacy efforts next fiscal year.
Theoretically, Congress could still come to an agreement on an omnibus spending package by December 16th, but right now another short-term CR would probably be needed to give congressional leaders more time to work out the details. Congress could pass a CR covering several weeks or months and turn this into an issue for the 118th Congress.
Our team, and the academic medicine community, is strongly urging Congress to pass a final FY 2023 omnibus bill this year to avoid the budget implications, inefficiencies, and uncertainty that would result from kicking the federal funding can further down the road.
Medicare reimbursement
There is a full court press and primary offensive from healthcare professionals, hospitals, health systems, and stakeholders across the country, including our team and Duke Health leadership, to have Congress act before the end of the year on a number of provider payment and Medicare reimbursement issues. Talks are continuing on proposals to prevent or mitigate current and looming cuts to Medicare reimbursement payments. This includes preventing the 4% Statutory Pay-As-You-Go (PAYGO) sequester impacting hospitals and stopping cuts to providers resulting from the Medicare physician fee schedule. Our team also continues efforts to extend the 5 percent Alternative Payment Model incentive payments under the Medicare Access and CHIP Reauthorization Act (MACRA) in an end-of-the-year bill, which would impact Duke Connected Care.
Of note, Rep. Greg Murphy (NC-03) has joined his Republican Doctors Caucus colleagues in leading a letter to House leadership urging support for policies to address impending Medicare payment cuts in legislation moving through the U.S. House of Representatives before the end of the year and offering assistance in finding a solution in order to ensure continued and robust access to care for American seniors.
It’s still unclear how these issues could be addressed as part of a year-end package, especially if an omnibus is traded for a longer-term CR. We are continuing to advocate and will provide updates as they become available
Extenders (including telehealth), FDA riders, and everything after
As a reminder, here’s a snapshot of other priorities on the table for discussion (among the new additions is momentum building for an extension of a PHE-tied hospital at home program):
A one or two-year extension of current public health emergency-related Medicare telehealth flexibilities and the Medicare Acute Care Hospital at Home waiver program is under consideration, as are many of the FDA policy riders not included as part of the FDA user fees reauthorization legislation passed by Congress in September. Efforts are also underway on the Black Maternal Health Momnibus, the PREVENT Pandemics Act, the VALID Act to regulate laboratory developed tests, the TRAIN Act to prevent recoupment of payments to hospital-based nursing schools, cybersecurity and data privacy, the Electoral Count Reform Act, and provisions strengthening coverage, care, and access for mental and behavioral health services.
On the Move
Yes, some priorities are stuck as part of larger year-end negotiations, but the lame duck session can also be a great time to spotlight other issues that have been awaiting a floor date.
NDAA
Yesterday, the House approved the 2023 National Defense Authorization Act (NDAA), one of the two must-pass pieces of legislation Congress has to enact during the lame-duck session. The NDAA, which calls for $847 billion in defense spending, formally authorizes broad programmatic and spending initiatives at the Department of Defense (DOD), including the Defense Health Program, which supports and funds DOD medical research, as well as the Defense-supported medical workforce. House passage of the NDAA sets up a Senate vote next week.
This is a big deal – not only in efforts to preserve a 60+ year on-time streak – but also in clearing the deck of a must-pass priority to allow Members to focus on other issues.
Respect for Marriage Act
Congress has officially passed the Respect for Marriage Act, which codifies the current constitutional rights to same-sex and interracial marriages into federal law. President Biden is expected to quickly sign the legislation into law.
Data Mapping to Save Mom’s Lives Act
This week the House advanced the “Data Mapping to Save Mom’s Lives Act,” which would direct the Federal Communications Commission (FCC) to include data on certain maternal health outcomes in its broadband health mapping tool. Among the bill’s cosponsors is retiring Rep. G.K. Butterfield (D-NC-01). A similar bill passed the Senate earlier this year; however, the House bill will need to head back to the Senate, since it has slightly different provisions. We remain hopeful the bill be considered in the Senate by the end of the year.
Following passage in the House, Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology Subcommittee Chairman Mike Doyle (D-PA) released a joint press statement stating “The United States has the highest rate of maternal mortality among the developed nations—a sad and inexcusable reality… For pregnant women, access to fast, reliable broadband is a crucial tool for telehealth services like routine checkups, health monitoring, and updating prescriptions. This bill will help us better understand the telehealth and telecommunications barriers too many women face so that we can adopt informed, robust connectivity policies that keep Americans safe and healthy.”
Senate Finance Committee releases Mental Health Parity draft
The Senate Finance Committee (SFC) released a discussion draft for improving mental health parity in Medicare and Medicaid. This is the fifth and final discussion draft for the bipartisan working groups first established earlier this year by committee leadership. In addition to mental health parity, the working groups have also focused on telehealth, youth mental health, workforce, and integrating mental health and physical health. The parity working group is led by Senators Richard Burr (R-NC) and Michael Bennet (D-CO).
Provisions in the draft outlined by the SFC include:
- Strengthening the accuracy of provider directories in Medicare Advantage plans.
- Strengthening requirements in Medicaid for managed care organizations and states to maintain regularly updated provider directories that include, in part, information on accessing care from behavioral health professionals.
- Directing GAO to conduct a study of the differences in enrollee cost-sharing and utilization management between behavioral and non-behavioral health services in Medicare Advantage and compared to traditional Medicare.
- Requiring Medicare to provide guidance to health care providers detailing the extent to which Medicare beneficiaries with substance use disorders can receive partial hospitalization program services.
- Directing GAO to report on Medicaid payment rates for behavioral health services compared to medical and surgical services across a sample of states.
With time running out to advance these comprehensive policy recommendations before the end of Congress, it is becoming more likely that this work will continue next year – but we continue to monitor a very fluid year-end situation in the chance mental health policy provisions are added to a broader legislative package.
CMS Issues Proposed Rule That Would Improve Prior Authorization
This week, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would improve prior authorization practices. According to CMS, the proposed rule would place new requirements on Medicare Advantage (MA) organizations, state Medicaid and CHIP Fee-for-Service programs, Medicaid managed care plans and CHIP managed care entities, and Qualified Health Plan issuers on the Federally Facilitated Exchanges to improve the electronic exchange of health care data and streamline processes related to prior authorization. Among the provisions in the proposed rule, CMS would require impacted payers to send prior authorization decisions within 72 hours for expedited requests and seven calendar days for standard requests. CMS is also seeking comment on alternative time frames with shorter turnaround times. In addition, CMS is proposing to require impacted payers include a specific reason when they deny a prior authorization request, regardless of the method used to send the prior authorization decision.
We are coordinating with Duke Health leadership and experts on any potential health system response. Comments are due in March 2023.
From our desk(s): Duke Health GR this week
This week, our team coordinated Duke Health joining a stakeholder sign-on letter in support of the VA Infrastructure Powers Exceptional Research (VIPER) Act (H.R. 5721), which includes a legislative fix to address recent VA guidance on conflict of interest policy applied to VA researcher outside compensation impacting non-public VA-affiliated institutions.
Our team coordinated Representative Kathy Manning (D-NC-06) joining a meeting of the DREAM team to provide an update on her work on reproductive health issues with the group.
A member of our team participated in the Trauma Centers Association of America policy and advocacy committee meeting to discuss year-end and 118th Congress strategy on key priorities, including federal trauma grants legislation, gun and workplace violence, and the MISSION Zero grant program.
Our office advocated in support of Congress mitigating Medicare Physician Fee Schedule (PFS) and PAYGO cuts, asking our NC delegation members to join their colleagues in outreach to House and Senate leadership, and the White House, by urging congressional action prior to the end of the year.
We also continues to advocate for Duke Health federal funding priorities, joining coalition and stakeholder partners whenever possible to push for a final FY 2023 omnibus spending package and not a longer-term CR.
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