Capitol Hill Healthcare Update

by BakerHostetler

Democrats and Some Republicans Say Congress Must Restore Insurer Subsidies

President Trump’s announcement Friday that he would stop cost-sharing payments to insurance companies triggered a firestorm on Capitol Hill, with lawmakers in both parties calling on Congress to restore the funding quickly.

House Democratic Leader Nancy Pelosi (D-Calif.) said lawmakers could leverage upcoming must-pass budget bills to include the payments to insurers. Sen. Bill Cassidy (R-La.) and Rep. Leonard Lance (R-N.J.) were among some of the GOP lawmakers who said Congress should restore the payments as part of the appropriations process.

Republicans – including Trump – have long complained the payments are illegal because then-President Obama authorized them by executive order even though they were never sanctioned in the Affordable Care Act (ACA) statute. One federal court has held the payments as unconstitutional though that case is on appeal.

Regardless of the legal arguments, Democrats say the practical effect of the president’s decision is likely to roil insurance markets and threaten coverage for the nine million Americans who currently receive subsidized ACA insurance. Without the cost-sharing payments, insurers say premiums and deductibles will skyrocket, leaving plans unaffordable to low-income individuals or forcing insurance companies to abandon coverage in some areas.

Trump’s move could spur talks between Senate HELP Committee Chairman Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) to strike a deal on continuing the payments while also giving states flexibility from some ACA requirements. With the Senate reconvening today after a weeklong recess, expect those bipartisan discussions to resume.

However, White House budget Director Mick Mulvaney said Trump would veto any standalone bill to restart the payments. Still, Mulvaney did tee up the payments as a possible bargaining chip to extract ACA concessions from Democrats or even compromises on separate issues, like funding for a wall along the U.S-Mexico border.

After tweeting about the payments this weekend, Trump does seem to want to use the issue to prod Democrats into negotiations over the ACA, after the Republican-controlled Congress twice this year failed to pass legislation repealing the health law. However, Pelosi and other Democrats say that while they are open to changes to the ACA, they will not negotiate until Trump and congressional Republicans back away from efforts to overturn the law.

Democrats Criticize GOP on CHIP Renewal

A top House Democrat last week questioned whether Congress could strike a bipartisan agreement on renewing a popular children’s health program because Republicans want to link it to changes to the ACA.

Rep. Frank Pallone (D-N.J.), the ranking Democrat on the House Energy and Commerce Committee, criticized Republicans for wanting to pay for renewing the Children’s Health Insurance Program (CHIP) by taking billions of dollars from the ACA. He said he opposes the “premise that we can only offer healthcare to children by taking it away from others.”

The committee earlier this month agreed on a five-year CHIP renewal with a three-year phase out of the extra federal funding mandated by the ACA. However, the House bill includes a number of pay-fors that have rankled Democrats and threatened the typical bipartisan approach Congress has taken toward CHIP since it was established in 1997. The House CHIP bill also would renew federally qualified community health centers and include $1 billion for Puerto Rico’s Medicaid program and $30 million for the U.S. Virgin Islands as part of hurricane relief.

Committee Chairman Greg Walden (R-Ore.) said last week that he would delay House floor consideration of the CHIP bill to give more time for discussions with Democrats but warned that the House could vote on the bill as soon as Oct. 23 if an agreement was not reached.

The continuing wrangling over what usually is a popular bipartisan program likely signals that CHIP renewal will not happen until December and likely could be included in a legislative package of other expiring provisions, including funding to keep the government open.

Senate Panel to Hold Hearing on Drug Costs

The Senate HELP Committee on Tuesday will hold its second hearing this year on prescription drug costs, focusing on how the drug delivery system affects what patients pay.

Witnesses include Lori Reilly of PhRMA and Chip Davis of the Association for Accessible Medicines, formerly GPhA. Other witnesses include Elizabeth Gallenagh of the Healthcare Distribution Alliance, Mark Merritt of the Pharmaceutical Care Management Association, and Thomas Menighan of the American Pharmacists Association.

The Senate HELP Committee in June held its first hearing on drug prices, which quickly dissolved into a partisan clash over Republicans’ effort to repeal the ACA. Committee Chairman Lamar Alexander (R-Tenn.) said he might convene a third committee hearing this fall to examine drug prices.

House Panel Questions Hospitals’ Use of 340B Drug Savings

Several House Republicans examining the 340B drug discount program say some hospitals lack controls needed to track program savings or ensure patients reap the benefits of those savings.

House Energy and Commerce Committee Chairman Greg Walden (R-Ore.) said during a hearing last week that hospitals’ “lack of transparency” only fuels the committee’s concern that the 340B program may need an overhaul.

Two other committee members, Reps. Chris Collins (R-N.Y.) and Buddy Carter (R-Ga.), questioned whether 340B-eligible hospitals are purchasing oncology clinics primarily to generate additional revenue from applying the discounts to cancer drugs used at those clinics.

Walden’s committee has been examining the 340B program this year, including sending detailed questionnaires to several hospitals and interviewing executives from others. He said during the hearing that he is not interested in eliminating the program but that it may need changes.

House Bill Seeks Partnership to Guard Against Health Cyber Attacks

Legislation introduced in the House last week would create a public-private stakeholder partnership with the goal of establishing a cybersecurity framework to protect Americans’ sensitive healthcare information from digital attacks. Led by the FDA, the partnership would collect and centralize existing cybersecurity standards and best practices, identify high-priority gaps, and recommend actionable solutions for industry and government stakeholders. Reps. Dave Trott (R-Mich.) and Susan Brooks (R-Ind.) introduced the bill.

Trott said existing security frameworks are unable to protect Americans’ health data. Brooks said millions of medical devices are susceptible to cyber-attacks and safeguards should focus on not only protecting data but also blocking bad actors from manipulating device functionality.

Draft Bill Would Create Cyber Post at HHS

Draft legislation circulating in the House would create a new information security position at the U.S Department of Health and Human Services (HHS) with primary responsibility for managing the department’s cyber programs. Reps. Billy Long (R-Mo.) and Doris Matsui (D-Calif.) are behind the draft legislation. Both lawmakers are members of the House Energy and Commerce Subcommittee on Health, which has legislative jurisdiction over HHS. The draft bill also would require HHS to report to Congress on the department’s plans for preparing for and responding to cybersecurity threats.

House Lawmakers Demand Action on Opioids

Several dozen House members testifying last week during a hearing on the nation’s opioid crisis called for greater federal funding and other changes to address the epidemic. The House Energy and Commerce Committee last week held a daylong hearing to allow lawmakers to testify about how the crisis is affecting their congressional districts and states, and what additionally Congress should do about it.

Recent laws have authorized several billion dollars in opioid grant funding for states, but some lawmakers said additional funding is required as is flexibility on how states use those resources. Rep. Harold Rogers (R-Ky.), the co-chairman of the Congressional Caucus on Prescription Drug Abuse, said he would introduce legislation to incentivize medical students to train in addiction treatment by creating a student loan forgiveness program. Rogers – one of more than 50 lawmakers to testify – called the opioid crisis a “public health calamity.”

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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