McDermottPlus Check-Up: December 9, 2022 - McDermott+Consulting

McDermottPlus Check-Up: December 9, 2022


Congress was in session this week as lawmakers continued to seek an agreement on an omnibus appropriations bill to keep the government funded for the remainder of FY 2023, along with a package of year-end policy provisions to add to the spending bill. The House also took up the annual defense authorization bill, which includes a provision to end the military vaccine mandate for COVID-19. The White House has indicated opposition to ending the mandate, but has not threatened to veto the must-pass defense bill. In election news, Senator Warnock (D-GA) won his runoff election against Republican candidate Herschel Walker, giving Democrats an outright 51–49 majority in the 118th Congress. However, Senator Sinema’s (I-AZ) subsequent departure from the Democratic party to become an independent raises some questions about the strength of Democrats’ working majority in the Senate.


Efforts Intensify to Prevent Medicare Provider Cuts. As appropriators continue to work toward an agreement on the year-end omnibus spending package, lawmakers and stakeholders are intensifying efforts to ensure that the package includes provisions to halt impending Medicare provider cuts.

On December 5, a group of more than 100 healthcare stakeholders sent a letter to congressional leadership, urging them to prevent the looming payment cut of nearly 4.5% under the Medicare physician fee schedule that, without action, goes into effect on January 1, 2023.

This follows the November 30 letter to congressional leadership, signed by the American Hospital Association, American Medical Association and other large healthcare groups, urging Congress to prevent the 4% Medicare cut from the statutory Pay-As-You-Go Act of 2010 sequester.

Members of Congress are stepping up their efforts as well, with two sign-on letters currently circulating urging congressional leaders to stop the provider cuts—one bipartisan letter that is open to all representatives, and one from the GOP Doctors Caucus.


CMS Issues Proposed Rule on Prior Authorization. On December 6, the Centers for Medicare & Medicaid Services (CMS) released a proposed rule addressing the prior authorization (PA) process. The proposed rule includes several proposals aimed at reducing the administrative burden on patients, providers, payers and other stakeholders tied to PA. The proposed requirements would generally apply to Medicare Advantage (MA) plans, state Medicaid and Children’s Health Insurance Program (CHIP) agencies, Medicaid managed care plans, CHIP managed care entities and qualified health plan issuers offering coverage through the federal marketplace.

The proposed rule would require certain payers to implement an electronic PA process, shorten the timeframes for certain payers to respond to PA requests, and establish policies to make the PA process more efficient and transparent. Most of the proposals, including proposals related to electronic PA processes, certain decision timeframes and certain reporting requirements, would not take effect until 2026.

This regulatory activity occurs as Congress considers the Improving Seniors’ Timely Access to Care Act, which would mandate that MA plans establish electronic PA processes and require MA plans to report information on PA processes (e.g., approval, denial and overturn rates). The bill has wide bipartisan support and passed the House by voice vote earlier this year, but stalled after the Congressional Budget Office released a costly implementation estimate of more than $16 billion in September 2022. The bill is not expected to be included in an end-of-year package.

Comments on the proposed PA rule are due on March 13, 2023.


  • The Medicare Payment Advisory Commission held a two-day public meeting focusing on annual payment recommendations for hospital inpatient and outpatient services, physician services, home health services and inpatient rehabilitation services.
  • The Medicaid and CHIP Payment and Access Commission also held a two-day public meeting covering issues such as improving Medicaid race and ethnicity data collection and reporting, recent Medicaid waiver developments and their implications for future policy, nursing facility payment principles and recommendations, and an annual analysis of disproportionate share hospital allotments.
  • The US Department of Health and Human Services (HHS) issued updated guidance on the good faith estimate requirements for the No Surprises Act. HHS stated that it would continue to exercise enforcement discretion in situations where convening providers and facilities must provide good faith estimates for uninsured and self-pay individuals, but do not include expected charges from co-providers or co-facilities. HHS previously stated that enforcement of this requirement would begin on January 1, 2023. The updated guidance notes that enforcement discretion will continue until a future date that will be specified in a rulemaking, and encourages state enforcement authorities to take a similar approach.
  • House Energy and Commerce Committee Chair Pallone (D-NJ) and Senate Health, Education, Labor, and Pensions Committee Chair Murray (D-WA) sent a letter to the Biden Administration expressing strong support for the implementation of key provisions of the No Surprises Act.
  • HHS and CMS held the December session of their “Medicaid and CHIP Continuous Enrollment Unwinding: What to Know and How to Prepare” webinar series. The webinar recording, transcripts and slides will be available here.
  • HHS released a fact sheet on the one-year anniversary of the agency’s overdose prevention strategy, highlighting progress in expanded treatment capacity, lives saved from overdose and a commitment to long-term recovery supports.
  • CMS released a high-level training video and infographic providing a general overview of Emergency Medical Treatment and Labor Act (EMTALA) requirements, along with information on filing a complaint against a provider or supplier if an individual believes that EMTALA has been violated.
  • CMS released a new fact sheet providing a snapshot of Affordable Care Act (ACA) enrollments during the ongoing open enrollment period, including a state-by-state breakout. To date, almost 5.5 million Americans have signed up for individual market coverage. Of those, about 1.2 million (more than 20%) are new entrants to the ACA marketplaces.


The House and Senate will be in session as congressional leaders continue to work toward an agreement on a year-end legislative package. A new stopgap continuing resolution (CR) is expected, as work will not be completed by the current CR’s December 16 expiration.

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

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