On Tuesday, March 15, 2022, President Biden signed into law the Consolidated Appropriations Act of 2022 (H.R. 2471) that funds the federal government for the remainder of FY 2022. The measure includes funding for health care-related agencies, such as HHS, CMS, HRSA and the FDA, as well as several health care policy riders and provisions that address issues like 340B and telehealth waivers. An overview of the FY 2022 funding bill and a summary of its health care-related provisions can be found below.
While several of the health care provisions were welcomed by health care stakeholders, many of the requests made by the industry in the weeks leading up to passage did not make the final cut. These include more money for the Provider Relief Fund, another delay of the 2% Medicare sequester cut scheduled to be phased back starting April 1, more time to repay loans made through the Medicare Accelerated and Advanced Payments Program, an increase in the 20% pay add-on for Coronavirus care and delays of both the Medicare surprise billing regulations and hospital price disclosure requirements.
A section of the bill that would have provided $15.6 billion in new COVID-19 emergency funding requested by the White House was removed at the last moment after some rank and file House Democrats objected to a cost offset that rescinded $7 billion in unused state and local government aid from previous COVID-19 relief laws. Those complaints were largely voiced by Democrats at the state and local level who had accounted for that funding in their budgets but had not yet received the monies. The emergency COVID funding was placed in a separate “standalone” bill that will be taken up sometime in the coming weeks. While the measure will easily pass the House, its prospects for passing the Senate are low given the expected level of Republican opposition.
Overall, the omnibus annual spending bill provides $1.5 trillion for federal agencies in FY 2022 and $13.6 billion in emergency funding for Ukraine in its war against Russia. It includes provisions related to the regulation of synthetic nicotine, cyber incident reporting, Violence Against Women Act programs, intelligence authorizations, EB-5 visas, and foreign policy. It’s also the first bicameral legislation to include community project funding (previously known as “earmarks”) since they were banned in 2011.
When FY 2022 ends on September 30, Congress must either pass a funding bill for FY 2023 or a continuing resolution that keeps funding at FY 2022 levels so that lawmakers have time to continue negotiating a FY 2023 funding bill. Given that September 30 falls right before the November mid-term elections, Hall Render believes the political climate will be such that Congress chooses to pass a continuing resolution that lasts until just before the end of this year.
Health and Human Services Department
HHS funding includes the following amounts across agencies:
- $12.5 million for state offices of rural health, no increase from fiscal 2021.
- $11 billion for Head Start, a $288.7 million increase from fiscal 2021.
- $6.91 billion for the National Cancer Institute, a $352.7 million increase, including $194 million for President Joe Biden’s Cancer Moonshot initiative.
- $6.17 billion for the Child Care and Development Block Grant, a $254.3 million increase.
- $3.91 billion in regular budget authority for unaccompanied children, a $2.6 billion increase.
- $3.2 billion for the Public Health and Social Services Emergency Fund, a $352.2 million increase.
The bill also contains the following HHS-related policy riders:
- Abortion: The measure continues the Hyde amendment, which bars the use of federal funds to pay for abortions, with exceptions for rape or incest or when the mother’s life is endangered. The bill also continues the Weldon amendment, which prohibits federal agencies from discriminating against providers that don’t perform abortions.
- Advance Research Projects Agency for Health (“ARPA-H”): The bill provides $1 billion to create a new ARPA-H. The agency will fund research aimed at achieving breakthroughs in treating diseases such as cancer, Alzheimer’s, diabetes and ALS.
- Gun Research: The measure includes $12.5 million each for the CDC and NIH to research gun violence.
- The measure continues bans on:
- Federal funds for needle exchange programs.
- Finalizing standards that would require individuals have a unique health identifier.
- Research involving human embryos.
- Any activity to promote legalizing Schedule I drugs, unless there’s significant evidence the drug has a therapeutic advantage.
Other Health Care Provisions
The measure includes the following additional health care provisions:
- 340B Program Fix: 340B hospitals that were at risk of losing their 340B eligibility as a result of a change in DSH percentage caused by the Coronavirus pandemic will continue to be eligible for the program through December 31, 2022. Those that had already lost program eligibility will be reinstated after filing a self-attestation with the Secretary of HHS within 30 days of enactment, which falls on Thursday, April 14, 2022.
- Telehealth: The measure provides for a blanket extension of pandemic-related telehealth waivers that lasts for 151 days after the end of the public health emergency. This includes continuing to eliminate Medicare originating site and geographic restrictions, maintaining the expansion of practitioners that are eligible to provide services through telehealth, removing in-person requirements and allowing for audio-only telehealth appointments.
- Drug Regulation: The bill allows the FDA to regulate synthetic nicotine, expanding its authority over tobacco products to include all nonfoods containing nicotine from any source. It also extends the treatment of fentanyl analogues as Schedule I substances under the Controlled Substances Act through December 31, 2022.
- Territory Federal Medical Assistance Percentage (“FMAP”): An increase in the FMAP for certain territories will be extended through December 13, 2022. Puerto Rico will receive an additional increase of $200 million if HHS certifies that its state Medicaid plan meets certain requirements.
If you have any questions or would like additional information, please contact:
- John Williams III at (202) 370-9585 or jwilliams@wp.hallrender.com;
- Andrew Coats at (202) 370-9587 or acoats@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
