McDermottPlus Check-Up: December 16, 2022 - McDermott+Consulting

McDermottPlus Check-Up: December 16, 2022


The House and Senate were in session this week as lawmakers continued to work toward an omnibus appropriations package to keep the government funded for the remainder of fiscal year (FY) 2023. Agreement on an omnibus framework was announced, and Congress approved another short-term continuing resolution (CR) to provide lawmakers with an additional week to complete action on the omnibus, which is also expected to include a package of to-be-released healthcare provisions. On the regulatory front, the Centers for Medicare & Medicaid Services (CMS) released proposed rules affecting marketplace insurance coverage, Medicare Advantage (MA) and prescription drug plans.


Congress Makes Incremental Progress on Year-End Legislative Package. With the current stopgap CR set to expire on December 16, Congress unveiled and quickly advanced another short-term CR keeping the government funded for an additional week, through December 23. President Biden is expected to sign the CR imminently, as Congress turns its focus to an omnibus spending package for the remainder of FY 2023.

On December 13, Senate Appropriations Committee Chair Leahy (D-VT) and Ranking Member Shelby (R-AL), along with House Appropriations Committee Chair DeLauro (D-CT), announced an agreement on a framework for the FY 2023 omnibus bill. House Appropriations Committee Ranking Member Granger (R-TX) was not part of the agreement. Further, only nine House Republicans voted in support of the new short-term CR this week. Democrats, with only a two-vote margin in the House, will likely need to be strongly united on passage of an omnibus bill.

The text of the massive spending package is currently being finalized, and lawmakers are expressing optimism that the House and Senate can complete consideration of the bill by December 23. Healthcare stakeholders are eagerly awaiting the release of anticipated policy provisions expected to “ride” on the omnibus. As this update went to press on December 16, healthcare policy provisions had yet to be announced.

The many potential healthcare provisions include the following:

  • Halting the Medicare PAYGO 4% cut
  • Mitigating reductions to the physician fee schedule
  • Addressing Medicaid funding in the territories
  • Extending the Medicare low-volume payment adjustment and the Medicare-dependent hospital program
  • Reauthorizing the Maternal, Infant, and Early Childhood Home Visiting Program
  • Advancing the Verifying Accurate Leading-edge IVCT Development Act to create a new regulatory framework for the review and approval of diagnostic tests to accelerate the development of new technologies
  • Addressing broad health policy priorities, including mental health, telehealth and Medicare payment adjustments.


CMS Releases Notice of Benefit and Payment Parameters Proposed Rule. On December 12, CMS released the Notice of Benefit and Payment Parameters Proposed Rule for 2024. The proposed rule would govern qualified health plans (QHPs) and the plans offered on the Affordable Care Act exchanges, and includes proposed payment parameters and provisions related to risk adjustment and risk adjustment data validation programs.

QHPs are required to have a sufficient number and geographic distribution of essential community providers (ECPs) to ensure patient access. The proposed rule would add two additional ECP categories for plan year 2024 and beyond: mental health facilities substance use disorder treatment centers.

Currently, QHPs that utilize provider networks are required to contract with at least 35% of available ECPs in each plan’s service area to participate in the plan’s provider network. In this rule, CMS proposes to extend the threshold to require QHP issuers to contract with at least 35% of available federally qualified health centers and at least 35% of available family planning providers that qualify as ECPs in the plan’s service area.

The rule also proposes several updates to the design of standardized plan options and proposes to limit the number of non-standardized plan options offered by QHPs through the marketplaces. The proposed rule also solicits comments on a new proposed meaningful difference standard to evaluate whether plans within specific groupings are “meaningfully different” based on differences in deductible amounts.

For the 2024 benefit year, CMS proposes to lower the user fee rate from 2.75% to 2.5% of premium for QHPs sold on the federally facilitated marketplace, and to lower the user fee rate from 2.25% to 2.0% of premium for QHPs sold on the subset of state-based marketplaces on the federal platform. CMS anticipates that such user fee rate decreases may exert downward pressure on insurance premiums, resulting in lower costs for consumers.

The proposed rule would also give marketplaces the option to implement a new special rule for consumers losing Medicaid or Children’s Health Insurance Program (CHIP) coverage that is also considered minimum essential coverage. Consumers would have 60 days before, or 90 days after, their loss of Medicaid or CHIP coverage to select a plan for marketplace coverage through a special enrollment period. Marketplaces would have additional flexibilities to decide whether to offer this special rule, depending on eligibility and/or enrollment trends for their respective populations. CMS also proposes to change the current coverage effective date requirements so that marketplaces have the option to offer earlier coverage effective start dates for consumers attesting to a future loss of minimum essential coverage and who would otherwise experience gaps in coverage.

A fact sheet from CMS contains additional details. Comments on the proposed rule are due by January 30, 2023.

CMS Releases Medicare Part C and D Contract Year 2024 Proposed Rule. On December 14, CMS released the Medicare Program: Contract Year 2024 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, etc., proposed rule.

CMS proposes significant changes to strengthen protections for people enrolled in or seeking coverage from MA plans and Medicare Part D prescription drug plans, including improvements to prior authorization processes, coverage guidelines and plan marketing requirements, such as the following:

  • Clarifications and revisions to regulations governing when and how MA plans develop and use coverage criteria and utilization management policies to ensure that MA enrollees receive the same access to medically necessary care as in original Medicare
  • Policies to streamline prior authorization requirements and reduce disruption for MA enrollees (complementing proposals in the recently released Advancing Interoperability and Improving Prior Authorization Processes Proposed Rule)
  • Protections for people exploring MA and Part D coverage from potentially misleading marketing while also ensuring access to accurate and necessary information to make coverage choices
  • Establishment of a health equity index in the Star Ratings program that would reward excellent care for underserved populations by MA and Part D plans.

A fact sheet from CMS contains additional details on the proposed rule. Comments are due by February 13, 2023.


  • The Senate passed the Data Mapping to Save Moms’ Lives Act (also advanced by the House last week), sending the bill to President Biden to be signed into law. The bill requires the Federal Communications Commission to include data on maternal health outcomes in its broadband health mapping tool, in an effort to identify and address disparities.
  • The Substance Abuse and Mental Health Services Administration released a proposed rule to update opioid use disorder treatment standards as part of the US Department of Health and Human Services’ (HHS’s) Overdose Prevention Strategy. The proposed rule would make permanent the pandemic flexibilities allowing the use of telehealth for prescribing buprenorphine to treat opioid use disorder without an in-person visit. Comments are due by February 14, 2023.
  • CMS released the Center for Medicare and Medicaid Innovation’s 2022 Report to Congress. The Innovation Center is required by statute to report to Congress on its activities every other year, at minimum, and this most recent report covers activities from October 1, 2020, through September 30, 2022.
  • The Agency for Healthcare Research and Quality (AHRQ), on behalf of HHS, released a request for information (RFI) on advancing patient and healthcare workforce safety through the development of a National Healthcare System Action Alliance to Advance Patient Safety. The RFI requests input on how the Action Alliance can be most effective, along with input on innovative models of care, approaches, promising strategies and solutions for overcoming common impediments to safety. Comments are due January 26, 2023.
  • AHRQ also released a request for supplemental evidence and data submissions on “Healthcare System Level Strategies To Address Racial/Ethnic and Related Disparities in Health and Healthcare,” and a request for supplemental evidence and data submissions on “Patient and Provider Level Strategies to Address Racial/Ethnic Disparities in Health and Healthcare.” The submission deadline for both requests is January 11, 2023.


The House and Senate will work to complete action on the FY 2023 omnibus package, including healthcare policy provisions, in advance of the new CR’s December 23 expiration date. The tight timeframe leaves little room for error and means another short-term CR cannot be ruled out, although lawmakers appear motivated to complete legislative business for the year by the end of next week. If negotiations do not progress quickly on an omnibus bill, there is still the potential for a year-long CR as the fallback. Such an outcome would greatly diminish the inclusion of healthcare policy provisions.

For more information, contact Debra CurtisKristen O’Brien or Erica Stocker.

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