By Kristen O’Brien, JD
Vice President, McDermott+ Consulting
It was a complex beginning to 2021, with a new administration and Congress. President Biden formally took office, the COVID-19 pandemic raged on, and Congress rappelled divided chambers and a pending impeachment trial. This environment sets the stage for a challenging legislative and policy agenda, with numerous implications for health care and rehabilitation medicine.
The COVID-19 pandemic remains the dominant and most immediate issue for policymakers. On day one, President Biden released numerous executive actions aimed at fighting the public health emergency with significant focus on the vaccine rollout. President Biden also outlined a $1.9 trillion spending package that lays the groundwork for the next COVID relief bill.
Of key importance to AMRPA members is the Department of Health and Human Services (HHS) letter to governors, announcing its plan to continue the public health emergency declaration through 2021 and a 60-day notice before ending the declaration. This ensures that the authority for key waivers and flexibilities, including that for the 60% rule and three-hour rule, can stay in place for the immediate future.
What to Watch for in Congress
Democrats have a narrow majority in the House and a fifty-fifty split in the Senate, which limits chances that liberals will move forward with sweeping health care policy changes. However, this does not mean that Democrats cannot act unilaterally. Under the budget reconciliation process, Democrats can bypass Republican opposition and move forward with a new COVID relief package and efforts to shore up the Affordable Care Act (ACA).
The COVID relief package could be passed as early as March. There are, however, vast differences in the price tags between the current Democrat and Republican proposals. Key issues that could be included in either package include additional provider relief funding, extending Medicare sequestration cuts, and funding for COVID vaccines, testing and other supplies, and unemployment relief. It appears Democrats are moving in the direction of reconciliation, which would limit the range of provisions that could be included and erodes the prospect for bipartisan collaboration. Which provisions are in or out will be the main focus for lawmakers in the coming weeks.
What to Watch for at HHS
President Biden nominated California attorney general and former Congressman Xavier Becerra, a strong opponent of former President Trump’s efforts to rescind ACA protections, to lead the Department of Health and Human Services. The Senate is not expected to begin formal confirmation hearings until after impeachment proceedings begin, leaving HHS without its official leader for several weeks. President Biden has not yet nominated an Administrator for the Centers of Medicare & Medicaid Services (CMS), nor announced leadership of many of the agency’s centers and offices.
As a result, regulatory efforts are largely stalled as the agency reviews and evaluates Trump policies. This has not impacted pending comment periods, including that for the Review Choice Demonstration for Inpatient Rehabilitation Facility services, which would test pre- and post-claim reviews to demonstrate compliance with Medicare program policies. AMRPA will submit comments on the draft demonstration later this month.
Once fully staffed, HHS and CMS will play an integral role in implementing Biden policies. Almost all of the executive orders issued to date require agency action, and HHS will be the lead on key issues related to the pandemic, changes to coverage and the insurance marketplaces, and the normal payment rules impacting rehabilitation Medicare reimbursement.