McDermottPlus Check-Up: July 1, 2022 - McDermott+Consulting

McDermottPlus Check-Up: July 1, 2022

This Week’s Dose

There were no votes in Congress this week, though the House held a committee work week, which included two health-related hearings in the Energy and Commerce Committee, and full House Appropriations Committee reported out the FY 2023 Labor, Health and Human Services (HHS), Education and Related Agencies bill. In the Senate, behind-the-scenes negotiations continued with Senator Manchin (D-WV) on a reconciliation bill.

Supreme Court Justice Stephen Breyer officially retired and Justice Ketanji Brown Jackson was sworn in as the first Black woman Supreme Court Justice, as the Court concluded a tumultuous term. All eyes continue to focus on the Supreme Court decision overturning Roe v. Wade, and details on how this landmark ruling will impact healthcare providers and health policymaking will continue to emerge in the weeks and months to come.


Reproductive Health. In the wake of the Supreme Court decision overturning Roe v. Wade, Speaker Nancy Pelosi (D-CA) announced that the House of Representatives will move forward with legislation to protect sensitive data on health apps; clarifying the Constitutional right to travel freely across state lines; and once again, passing the Women’s Health Protection Act to codify Roe v. Wade into law (the House previously approved a version of this legislation in September 2021).

Energy and Commerce Subcommittee Holds Hearing on Medicare Advantage. On June 28, the House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing on Medicare Advantage (MA) plans’ use of prior authorization, following a report from the HHS Office of Inspector General (OIG) that found MA plans’ prior authorization denials raised concerns about beneficiary access to care. The Subcommittee heard testimony from the OIG, the Government Accountability Office (GAO) and the Medicare Payment Advisory Commission (MedPAC) regarding the dynamics of the MA market and ensuring beneficiaries have access to quality services without undue burden on patients and providers. While invited to the hearing, representatives from the Centers for Medicare & Medicaid Services (CMS) did not testify.

HHS OIG, GAO, and MedPAC provided differing recommendations, but aligned on the importance of improving MA encounter data and highlighted concerns with capturing diagnosis codes from chart reviews and health risk assessments (including in-home) that may increase MA plan payments without validated evidence. Recommendations included: CMS should provide clearer guidance on the internal clinical criteria MA plans use to establish prior authorization processes; timeliness of Medicare Risk Adjustment Validation Program audits should be improved; and changes should be made to the Quality Bonus Program.

During the hearing, a number of Representatives expressed support for the policies in H.R. 3173, the Improving Seniors’ Timely Access to Care Act. This bill—which has more than 300 cosponsors and is expected to be brought to the House floor this year—would establish an electronic prior authorization program, require specific prior authorization information to be publicly published, and would require plans to meet standards relating to the quality and timeliness of prior authorization determinations.

Witness testimony, opening statements, a background memorandum and the hearing webcast can all be found here.

Energy and Commerce Subcommittee Holds Hearing on Public Health Bills. On June 29, the House Energy and Commerce Health Subcommittee held a legislative hearing on 11 public health bills. The Subcommittee sought input from a panel of experts regarding the slate of bipartisan bills, which support public health workers, protect patients, and foster continued innovation and biomedical research. Highlights of specific bills discussed include:

  • H.R.3773, the PACT Act, which requires the National Institutes of Health (NIH) to make awards to support early-career pediatric researchers;
  • H.R.7565, the NIH IMPROVE Act, which would continue to fund the IMPROVE Initiative that seeks to advance research that reduces maternal mortality;
  • H.R.7845, the NIH Clinical Trial Diversity Act, which would require NIH-funded clinical trials to submit an application that includes a plan to increase diversity within the trial participation;
  • H.R.8151, the Building a Sustainable Workforce for Healthy Communities Act, which would award grants to eligible entities to promote positive health behaviors in medically underserved communities; and
  • H.R.8169, the Rural Telehealth Access Task Force Act, which establishes a task force to study how to address barriers to the adoption of telehealth technology.

Additional details on the hearing—including a full list of bills considered, a background memorandum, opening statements, witness testimony, and bill text—can be found here. Expect to see these bills continue to move forward through subcommittee and full committee consideration in the coming weeks.


HHS Takes Steps on Reproductive Health Care Following Supreme Court Ruling. On June 28, HHS announced a new website to provide information on access to reproductive health care, health insurance coverage, and where to receive care. The new website also provides information on how to file a complaint with HHS’ Office for Civil Rights (OCR) regarding potential violations of civil rights or health information privacy rights.

The same day, HHS Secretary Becerra spoke about actions the Department will take to protect reproductive rights at a federal level, including steps to increase access to medication abortion, directing the OCR to ensure patients’ civil rights and privacy are not violated, examining its authority under the Emergency Medical Treatment and Labor Act to ensure that medical provider’s clinical judgement for treating pregnant patients is supported and appropriate to stabilize patients, ensuring providers receive appropriate training and resources for family planning needs, and taking legal steps to protect family planning care.

On June 29, the OCR issued new guidance that addresses how federal law and regulations protect individuals’ protected health information (PHI) relating to abortion and other reproductive health care. It also addresses the extent to which PHI is protected on personal cell phones and tablets, and provides information related to privacy protection when using health information apps.

CMS Announces New Value-Based Oncology Model. On June 27, CMS announced the Enhancing Oncology Model (EOM)—a new CMS Innovation Center model the agency says is designed to improve cancer care and lower health care costs. It was introduced as a successor to the Oncology Care Model (OCM), which ended on June 30. The new model supports both the Unity Agenda and Cancer Moonshot initiatives of the Biden Administration.

The EOM is a voluntary, five-year model, running from July 2023 through June 2028. It will test how to improve health care providers’ abilities to deliver care centered around patients, consider patients’ unique needs, and deliver cancer care in a way that will generate the best possible patient outcomes. According to CMS, the EOM will focus on supporting and learning from cancer patients, caregivers, and cancer survivors, while addressing inequities and providing patients with treatments that address their unique needs. Model participants will include oncology practices that treat Medicare patients undergoing chemotherapy for breast cancer, chronic leukemia, lung cancer, lymphoma, multiple myeloma, prostate cancer, and small intestine/colorectal cancer.

The EOM seeks to build upon lessons learned from the OCM. The new model differs from the OCM in that it includes an explicit focus on health equity—such as the use of health-related social needs screening tools to collect data (e.g., food insecurity, housing instability and transportation concerns) from EOM beneficiaries to identify and address potential health disparities within beneficiary populations. Additional differences include a required downside risk for all EOM participants at the start of the model, and a cancer-type specific approach to calculating benchmarks, among others.

Additional information on the EOM can be found in a CMS fact sheet and on the Innovation Center’s main EOM page, which also includes application details and links. Applications are due by September 30.

CMS Issues Conditions of Participation for Rural Emergency Hospitals. On June 30, CMS issued a proposed rule establishing the Conditions of Participation for Rural Emergency Hospitals (REHs)—a new categorization that would help the agency better identify and support small rural hospitals in need of additional federal assistance.

Beginning on January 1, 2023, CMS says small rural hospitals with the new designation will receive additional support for emergency services, observation care and other medical and outpatient services, which is meant to ensure that rural communities have steady access to emergency, maternal health, behavioral health and substance use disorder services.

Of the requirements REHs will need to operate 24 hours a day with fewer than 50 beds to qualify. Eligible hospitals should have a categorization of “rural” that is recent, no older than December 2020. The rule notes that an REH should meet a set of staff training and certification requirements established by HHS; follow emergency services conditions of participation that are also applicable to CAHs; offer standards of care that meet nursing home requirements if the REH includes a distinct skilled nursing facility; and maintain a patient transfer agreement with a level I or level II trauma center for cases that are too severe to handle in-house.

CMS says it will include more information about REHs—including Medicare enrollment, payment and quality reporting—in its outpatient and ambulatory surgical center proposed rule. Stakeholders have until August 29 to comment on the REH proposed rule.

Quick Hits

  • On June 30, the House Appropriations Committee advanced the FY 2023 Labor-HHS bill along party lines, by a vote of 32-24. Prior to approving the bill, the Committee voted down an abortion-related amendment—the so-called Hyde Amendment, a policy preventing the use of federal funds to pay for abortion that has long been included in appropriations bills—largely along party lines. The Committee also approved by voice vote an amendment protecting the availability of abortion medication and an amendment to protect medical providers from extremists and violence. (See summary, bill text, and report language)
  • HHS opened a public comment period for its Initiative to Strengthen Primary Health Care. The goal is to develop a federal foundation for the provision of primary health care that supports improved health outcomes and advanced health equity. HHS’ first step is to produce an initial Action Plan this year. The public comment period runs through August 1, and additional information on the initiative and how to submit comments can be found here.
  • The White House released a Blueprint for Addressing the Maternal Health Crisis, reinforcing the Administration’s commitment to cutting the rates of maternal mortality and morbidity, reducing the disparities in maternal health outcomes, and improving the overall experience during and after pregnancy for people across the country.
  • CMS issued updated nursing home guidance, focusing on updates to improve the safety and quality care for residents, and efforts to reduce room crowding.
  • CMS issued new No Surprises Act fact sheets for patients (found here, here, here, and here).
  • CMS’ Office of Minority Health released updated Coverage 2 Care resources to help consumers understand their health coverage and get health care services they need.
  • CMS published 2022 Alternative Payment Model Incentive Payment details on the Quality Payment Program (QPP) website. To access the information, clinicians and surrogates can now log in to the QPP website using their credentials.

Next Week’s Diagnosis

Congress will be in recess for the Independence Day holiday, returning the week of July 11. Meanwhile, CMS is expected to soon publish the proposed Physician Fee Schedule and Hospital Outpatient Prospective Payment System rules. Our weekly Check Up will be on hiatus next week for the holiday. We wish you a restful recess week and will return with our next edition on Friday, July 15.


For more information, contact Debra Curtis, Madeline Hodge, Kristen O’Brien or Erica Stocker.

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