Capitol Hill Healthcare Update

by BakerHostetler

Graham, Cassidy Push Last-Ditch Effort on ACA Repeal

Republican senators pushing a last-ditch effort to overhaul the Affordable Care Act (ACA) say they are within one vote of having the support needed to pass their bill.

Sens. Bill Cassidy (R-La.) and Lindsey Graham (R-S.C.) said they would continue to push for a vote this month before the expiration of fast-track reconciliation legislation that allows Republicans to pass the bill on a party-line vote. The senators’ bill would repeal the ACA’s individual and employer mandate penalties and transform the law’s Medicaid expansion into a trillion-dollar block grant for states, mostly by redirecting funding from states that expanded their Medicaid programs to those that did not.

Although not all of the 52 Senate Republicans have publicly announced their position on the bill, Cassidy said he has 49 commitments to back his legislation. Republicans would need only one more vote before Vice President Mike Pence could cast the tie-breaking vote.

Sen. Rand Paul (R-Ky.) announced last week that he would oppose the bill, and Sen. Susan Collins (R-Maine) has expressed reservations because it would block Planned Parenthood from receiving federal reimbursements. Sen. John McCain (R-Ariz.), who brought down the GOP leadership’s last ACA repeal effort in July, declined to say how he would vote on Cassidy-Graham but said Sunday he preferred bipartisan legislation. Sen. Lisa Murkowski (R-Alaska) is a potential wildcard but shares Collins’ concern over Planned Parenthood funding.

The Congressional Budget Office (CBO) must produce a detailed economic analysis of the bill – including its cost and coverage impact – before a Senate vote. Majority Leader Mitch McConnell (R-Ky.) has called on the CBO to accelerate its score of the bill, but that process could take weeks to complete.

Another process hurdle facing Cassidy and Graham is that the filibuster-proof protection of the reconciliation legislation expires September 30. That means if the Senate approves the bill this month, the House would have to pass it without any changes for it to go to the White House for President Trump’s signature. Any House changes to the bill would trigger another Senate vote – and any Senate vote after September 30 would allow Democrats to block the bill with a filibuster.

One Republican Senate aide actively working on the bill said “everything would have to go right” for a Senate vote this month.

House Exploring Adding Other Health Items to CHIP Renewal

With Senate leaders agreeing to the outlines of a five-year reauthorization of the Children’s Health Insurance Program (CHIP), House Republicans are exploring whether legislation to renew the popular program can be used to carry other healthcare provisions.

Key House lawmakers are weighing whether to include repeal of the Independent Payment Advisory Board and suspension of the 2.3 percent excise tax on medical device manufacturers. Also under consideration is a host of mostly narrow bipartisan Medicare provisions advanced by the House Ways and Means Committee.

The House’s interest in a larger legislative package around CHIP does not guarantee it will occur. Senate Finance Committee staff say they would be open to a larger effort but want the House to propose specifics.

A larger CHIP legislative package also would likely increase its cost, with Energy and Commerce Committee staff saying they’re looking at an overall of cost of between $20 billion and $30 billion over 10 years. Potential offsetting pay-fors include extending the Medicare sequester and changes to the prescription drug Medicaid rebate for line extensions, or new formulations. Also discussed have been changes to the 340B prescription drug program, including a two-year moratorium on new entities joining the program and tightening certain program definitions.

House and Senate committee leaders want Congress to act before CHIP technically expires on September 30, but they acknowledge most states will have adequate funding to carry them into December if Congress fails to authorize CHIP this month.

ACA Stabilization Could Be Introduced This Week

Leaders on the Senate HELP Committee may introduce legislation as soon as this week to stabilize insurance premiums in the ACA’s individual markets.

The outlines of the agreement would extend the ACA’s cost-sharing reduction payments to insurers to subsidize premiums for individuals while also providing states with increased flexibility to approve coverage plans. The waiver details are not settled and Democrats warn they will object to waivers that allow states to undermine the ACA’s protections and coverage mandates.

Committee Chairman Lamar Alexander (R-TN) hopes to have a bill ready prior to this month’s deadline for insurers to finalize their 2018 plans, but that timing is uncertain.

While there is bipartisan support on the committee to extend the insurance payments, Republicans want greater state waiver flexibility than Democrats are likely to approve. Senate Finance Committee Chairman Orrin Hatch (R-Utah) is another hurdle to reaching agreement as his committee has jurisdiction over some of the policy Alexander would include in his legislation.

Hatch Wants Details on Elder Abuse in Nursing Homes

The Chairman of the Senate Finance Committee is questioning whether the U.S. Department of Health and Human Services (HHS) will take enforcement action after an independent report revealed widespread elder abuse in federally funded nursing homes.

HHS’s inspector general last month found injuries to 134 Medicare patients that may have been the result of abuse and neglect at long-term care facilities. Orrin Hatch (R-Utah) wrote to HHS Secretary Tom Price last week seeking more details and asking whether the department would change its procedures on reporting elder abuse or take enforcement actions.

The inspector general report found CMS is not enforcing a requirement that nursing homes notify employees of their obligation to report reasonable suspicions of a crime, including elder abuse.

Senate Trying To Pass Chronic Care Legislation

Senate leaders are gauging whether there is support to approve a package of chronic care legislation, including expanding Medicare’s coverage of telehealth services.

The bill, which won unanimous approval in May in the Senate Finance Committee, would make it easier for private Medicare plans and accountable care organizations to offer telemedicine services. It would also expand a current program for house calls for the elderly and allow for reimbursement of home dialysis treatment.

Senate leaders are trying to “hotline” the bill, which would allow approval by unanimous consent. Budget Committee Chairwoman Diane Black (R-Tenn.) has introduced a separate chronic care bill in the House.

Democrats Seek Details from CMS on Drug Reimbursement

A group of House Democrats is seeking information from the Centers for Medicare & Medicaid Services (CMS) on the agency’s agreement with Novartis for a “money-back guarantee” of the company’s newly approved CAR-T immunotherapy treatment.

When Novartis won FDA approval this month for its drug Kymriah to treat an aggressive form of leukemia in children, Novartis and CMS announced that the company would not receive reimbursement if a patient failed to respond to the treatment.

Rep. Lloyd Doggett (D-Texas) and several other House Democrats are asking CMS to reveal details of the agreement, including whether the federal government would pay the full $475,000 price of the treatment if a patient relapsed, the criteria used to evaluate a successful treatment and who ultimately would judge that criteria.

House Lawmaker Drafting Medical Device Cyber Bill

Draft legislation circulating in the House would establish a working group at the National Institute for Standards and Technology to recommend voluntary frameworks and guidelines to increase cybersecurity for medical devices. Rep. Dave Trott (R-Mich.) is drafting the House legislation but it is not clear when a bill will be introduced. Other medical device cyber legislation is under development in the Senate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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