By Martha M. Kendrick, Esquire
Partner, Akin Gump Strauss Hauer & Feld LLP
House and Senate appropriators on November 24 reached a bipartisan agreement on spending allocations for the 12 annual appropriations bills, laying the groundwork for a $1.4-trillion Omnibus package. The current Continuing Resolution (CR) was set to expire this past Friday, December 11, but Congress passed another one-week stopgap to give themselves until December 18 to work on Fiscal Year (FY) 2021 appropriations and COVID-19 relief.
Reportedly, they worked hard to resolve funding disputes around immigration and veterans’ health care, with late sticking point relates to environmental riders in the Interior-Environment bill. After appropriators worked over the weekend, an agreed upon Conference Report is expected imminently with the goal of both chambers passing the legislation by the end of this week, as their final action before concluding the 116th Congressional session.
The Omnibus is likely to reauthorize a number of expiring health care “extenders,” though it is unclear what length of reauthorizations will be included. Sen. Brian Schatz (D-HI) and other lawmakers also are urging Leadership to include language that would permanently extend the Medicare telehealth flexibilities that were implemented during the pandemic.
One late surprise in the legislative process --- on December 11, Leaders of the House Ways and Means Committee, House Energy and Commerce Committee, House Education and Labor Committee, and the Senate Health, Education, Labor, and Pensions (HELP) Committee announced that they had collectively reached an agreement on surprise medical billing. Senate and House Congressional Leadership will make final decision on whether to include these provisions in a final moving legislative vehicle.
Patients would be held harmless from surprise medical bills and are only responsible for the in-network payment rates, including air ambulance. The negotiated framework creates an arbitration system for out-of-network surprise medical bills that considers the median in-network payment for services, as well as the complexity of the service. There is no minimum threshold for triggering the independent dispute resolution (IDR) process, and insurers and providers would be allowed to initiate dispute resolutions once every 90 days. Payments should be made in 30 days. The legislation also includes language that extends mandatory funding for community health centers, the National Health Service Corps, and the Teaching Health Center Graduate Medical Education Program at current levels for each of fiscal years 2021 through 2024. Committee Leaders are pushing to include the compromise in an end-of-year vehicle. The White House and House Speaker Nancy Pelosi (D-CA) have indicated their support for the proposal, but it is not yet clear whether Senate Leader Mitch McConnell (R-KY) will sign off on its inclusion.
The American Hospital Association sent a letter to Committee leadership stating that it has “significant concerns” with several provisions, including the IDR process. Specifically, AHA questions why the arbiter should consider the reimbursement rates of federal health programs, calling the public payor rates “below the cost of providing care." The estimated $16 billion in savings from the proposal is intended to fund the specific health care extenders, and AHA urges the Committees to direct the savings to “providers that are on the front lines of treating COVID-19 patients, such as hospitals, physicians and nurses.”
COVID-19 Relief Package
Spending talks also have been complicated by parallel negotiations over COVID-19 relief. But after months of stalemate, COVID-19 relief talks have resumed with the goal of attaching an aid bill to the Omnibus spending package.
Negotiations over the next COVID-19 relief package were jump-started this month after the House Problem Solvers Caucus and a bipartisan group of centrist Senators released the outline of a $908 billion aid package and called for action before the end of the year. The package includes $300 billion in small business relief, including another round of Paycheck Protection Program (PPP) loans; $180 billion for enhanced unemployment insurance benefits through April 2021; $35 billion for health care providers through the Provider Relief Fund (PRF); and $16 billion for vaccine development/distribution and COVID-19 testing/tracing.
On December 1, House Speaker Nancy Pelosi (D-CA) resumed aid discussions with Treasury Secretary Steven Mnuchin for the first time since October and shared a new proposal she drafted with Senate Minority Leader Chuck Schumer (D-NY). Senate Majority Leader Mitch McConnell (R-KY), meanwhile, circulated his own targeted plan that is similar to the $500 billion proposal that Senate Republicans put forward in the fall. President-elect Biden called the Problem Solvers bill a “down payment” and called for swift action on a relief package before the end of the year.
Sen. Bernie Sanders (I-VT) and Sen. Josh Hawley (R-MO) have called for new direct payments to Americans, with Sen. Sanders threatening to hold up any vote on a relief package without another round of checks. Leader McConnell has offered to drop his long-standing request to include liability provisions, if the state and local funding is also removed, but a bipartisan agreement still remains elusive. The release of legislative text by the Problem Solvers Caucus on December 15, called for Members to continue working to resolve the liability and state and local funding impasse. The bipartisan, bicameral proposal separated the liability and state and local funding provisions into a standalone measure with the hope of combing the bills into a singular, $908 billion measure for consideration by the House and Senate.
Biden Transition and Cabinet Announcements
President-elect Biden is moving ahead with the transition, naming key White House officials and Cabinet members. On December 6, he officially began announcing his health care team, with the intent to nominate California Attorney General Xavier Becerra as Secretary of Health and Human Services. Former Rep. Becerra is a former chair of the House Democratic Caucus and served 12 terms in Congress. As California’s Attorney General, he has defended the Affordable Care Act (ACA) in California v. Texas, which is now before the Supreme Court.
President-elect Biden also plans to nominate Rochelle Walensky, chief of infectious diseases at Massachusetts General Hospital and a professor at Harvard Medical School, to head the Centers for Disease Control and Prevention (CDC). The President-elect’s s pick for Surgeon General, Vivek Murthy, also held the role under President Obama. Marcella Nunez-Smith, a professor at Yale School of Medicine, is expected to chair the COVID-19 Equity Task Force, which will be tasked with reducing racial and ethnic disparities in the care of COVID-19 patients. Anthony Fauci is expected to stay on as director of the National Institute of Allergy and Infectious Diseases (NIAID) and serve as the Administration’s chief medical adviser on COVID-19.
CMS Announces Proposed Review Choice Demonstration for IRFs
CMS announced on December 14 a proposed demonstration that would subject IRFs to pre-claim review and post-payment review on Part A claims to demonstrate compliance with Medicare program rules. Alabama would be the first state to implement the program, with a planned expansion of the demo in Pennsylvania, Texas, and California. CMS stated that the proposed demonstration would develop “improved methods for the identification, investigation, and prosecution of potential Medicare fraud.” CMS explains that its decision to move forward with a demonstration for IRFs is because of the high rate of improper payments under Medicare fee-for service, estimated to be more than $2.4 billion (30.8%). Comments on the proposal are due by February 16, 2021.
As we go to post this update, the end of the 116th Congress is in sight. As we move into this special season of gratitude, we would be remiss not to express heartfelt thanks to all in the medical rehabilitation field who have worked so selflessly throughout this most challenging year in serving patients and families with unimaginable challenges. Thank you also for your advocacy engagement and all your dedicated service to others.