Hall Render's This Week in Washington - December 13, 2019

Give and Take: CMS Announces Repayment for 2019 Site-Neutral Cuts Yet Announces Same Cuts for 2020

This week, CMS announced that any hospital paid a lower amount for a routine clinic visit in 2019 due to implementation of the site-neutral payment policy will automatically be paid the difference from the older, higher amount. CMS began its OPPS Pricer system update on November 4, and Medicare Administrative Contractors will reprocess claims that were initially subject to the cut beginning January 1, 2020. The reprocessing of claims is expected to occur over the first few months of 2020.

Also, on Thursday, HHS asked the U.S. Courts of Appeals to reverse a lower court ruling against its site-neutral payment policy, which would equalize some Medicare payments between hospital clinics and independent physicians. Even with the 2019 repayment, the agency states it will implement the second year of site-neutral pay cuts to the same providers in 2020. CMS argues that the decision on the 2019 rule can’t be used against the 2020 cuts since they were part of the 2020 pay rule.

Ways and Means Introduces Much-Anticipated Surprise Billing Legislation

The House Ways and Means Committee announced its own bipartisan proposal for ending surprise medical bills, joining the bipartisan, bicameral agreement on the issue revealed last Sunday. The plan resolves payment disputes by allowing providers and insurers to enter into an arbitration process. The Ways and Means Committee issued a one-pager describing details of their plan, but the text of the legislation is not yet available.

The introduction of this legislation potentially complicates an effort by some lawmakers to include a surprise billing fix in a year-end spending bill. The House Energy and Commerce Committee announced that it had reached a different agreement earlier this week with the Senate Health, Education, Labor and Pensions (“HELP”) Chairman Lamar Alexander (R-TN). HELP Ranking Member Patty Murray (D-WA) has yet to sign on to this measure. That plan would set a median in-network benchmark rate for providers, and let providers and insurers use arbitration when the benchmark rate is above $750. Ways and Means leaders are calling on lawmakers to slow down the process of deciding on a surprise billing fix and resume negotiations in 2020.

House Passes Drug Reform Bill

The House passed a sweeping legislative package aimed at reducing drug prices, the Elijah E. Cummings Lower Drug Costs Now Act (H.R. 3), on Thursday. The legislation delivers a long-promised Democratic priority that requires the government to negotiate the cost of up to 250 brand-name drugs that don’t have competition and drive up health costs the most. The legislation would also place a first-ever cap on out-of-pocket drug costs for Medicare beneficiaries. Adopted amendments in the legislation include: provisions addressing grants for health care administrative costs and rural hospitals; alternative supervision of negotiations; commercialization of biomedical products; drug advertising disclosure; pricing rules for federal employee health plans and veterans’ health plans; and others.

Early on, this issue was one where it seemed as though President Trump and Speaker Nancy Pelosi (D-CA) could strike a deal. However, the administration has signaled that it will support the bipartisan drug legislation currently moving through the Senate Finance Committee. The administration has even said it would veto the House bill in the unlikely event it ever passes the Republican-controlled Senate. However, elements of the legislation that correspond with the bipartisan Senate package could be included in must-pass end-of-the-year spending bills.

Senate Confirms New FDA Commissioner

In a 72-18 vote, the Senate confirmed Stephen Hahn, the chief medical officer at Texas-based MD Anderson Cancer Center, as Commissioner of the Food and Drug Administration. In his new role, Hahn will immediately be faced with a full agenda of public health issues, most notably how to regulate the electronic cigarette/vaping industry. While critics focused on Hahn’s lack of regulatory experience, Hahn received endorsements from many groups representing patients and health care providers, as well as five former FDA commissioners from Democratic and Republican administrations.

Health-Related Bills Introduced This Week

Rep. Blaine Luetkemeyer (R-MO) introduced H.R. 5421 to amend the Controlled Substances Act to list fentanyl-related substances as Schedule I controlled substances.

Rep. Josh Harder (D-CA) introduced H.R. 5411 to direct the Secretary of Health and Human Services to establish a Task Force on Local Mental Health Needs.

Sen. Sherrod Brown (D-OH) introduced S. 3049 to amend Title XVIII of the Social Security Act to provide for certain amendments relating to reporting requirements with respect to clinical diagnostic laboratory tests.

Rep. Jerry McNerney (D-CA) introduced H.R. 5386 to amend the Health Information Technology for Economic and Clinical Health Act to require consideration, in certain circumstances, of whether a covered entity or business associate has adequately demonstrated that it had recognized security practices.

Sen. Pat Toomey (R-PA) introduced S. 3013 to amend Title XVIII of the Social Security Act to allow for the offering of additional prescription drug plans under Medicare Part D.

Sen. Lisa Murkowski (R-AK) introduced S. 3006 to amend the Public Health Service Act to establish a program to improve the identification, assessment and treatment of patients in the emergency department who are at risk or suicide.

Next Week in Washington

Congress is back next week for its final legislative week of 2019. Government funding is scheduled to expire next Friday, December 20. Therefore, in addition to voting on articles of impeachment, Congress will also spend next week scrambling to finalize formal funding bills or pass another stopgap funding bill to avoid a government shutdown. To that end, congressional leaders announced on Thursday of this week that they have reached a “deal in principle” to fund the federal government for the rest of fiscal 2020. If the $1.37 trillion deal holds together over the weekend, a vote in the House could occur as early as Tuesday with a vote in the Senate occurring shortly thereafter.

Next Tuesday, the Senate Judiciary Committee is holding a hearing on “Tackling the Opioid Crisis: A Whole-of-Government Approach.” Additionally, on Monday and Tuesday, CMS will hold a meeting to discuss FY 2021 applications for add-on payments for new medical services and technologies under the hospital inpatient prospective payment system. Livestream and RSVP information can be found here.

For more information, please contact: