McDermottPlus Check-Up: March 2, 2023 - McDermott+Consulting

McDermottPlus Check-Up: March 2, 2023


Congress returned to session this week, and while healthcare issues were not the focus of House and Senate floor activity, there was plenty of activity off the floor, including important updates on the FY 2024 appropriations process. The House Select Subcommittee on the Coronavirus Pandemic held a roundtable examining policy decisions, and the House Energy and Commerce Committee held a hearing on data privacy. Across the Capitol, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on community health centers. The Medicare Payment Advisory Commission (MedPAC), the Medicaid and CHIP Payment and Access Commission (MACPAC), and the Physician-Focused Payment Model Technical Advisory Committee (PTAC) all held public meetings.


Senate and House Announce FY 2024 Appropriations Guidance, with House Prohibiting Earmarks in Labor-HHS Appropriations Bill.

  • The Senate: On February 22, the Senate Appropriations Committee released information on FY 2024 appropriations requests and congressionally directed spending requests, commonly referred to as earmarks. The release included general guidance for senators on making FY 2024 appropriations requests, including deadlines for the various appropriations subcommittees.

Under Senate rules, senators requesting congressionally directed spending projects must comply with specific accountability and transparency procedures. Requests must be in writing and must verify that members (and their immediate family) have no financial interest in the project, among other rules.

Each Senate appropriations subcommittee has a specific deadline by which senators must submit their requests. Of note for health-related projects, the Labor, Health and Human Services, Education and Related Agencies (Labor-HHS) Subcommittee has a deadline of April 13, and the Agriculture, Rural Development, Food and Drug Administration and Related Agencies Subcommittee has a deadline of March 31. A full list of deadlines can be found in the guidance document.

  • The House: On February 28, the House Appropriations Committee, under the new Republican majority, released its guidance for FY 2024 appropriations requests, including community project funding, which is the committee’s term for earmarks. House Republicans will prohibit community project funding in the Labor-HHS bill this year (as well as Defense and Financial Services bills). They also reduced the total amount of such projects they will fund from 1% of discretionary spending to 0.5%.

The Labor-HHS Subcommittee is still accepting requests for report language (directing or encouraging specific actions by federal agencies) and programmatic requests (requests for specific funding levels for agencies and programs funded through the annual appropriations bills). Additional guidance from the Labor-HHS Subcommittee on those requests, along with a Dear Colleague, can be found here and here.

The Labor-HHS Subcommittee deadline for Members to submit programmatic and report language requests is March 24, and the full list of subcommittee deadlines can be found in the guidance materials.

  • What This Means: The chambers’ differing approaches to earmark requests in the Labor-HHS bill mean that the Senate will be the sole venue for most health-related projects in FY 2024 (some may be able to creatively come up with programs through other appropriations bills). These very different approaches to earmarks could also further complicate the appropriations process later this year, should House Republicans object to Labor-HHS earmarks included by the Senate, for example.

Lawmakers Issue RFI on PAHPA. On February 27, Reps. Richard Hudson (R-NC) and Anna Eshoo (D-CA) issued a request for information regarding the reauthorization of the Pandemic and All-Hazards Preparedness Act (PAHPA), which is up for reauthorization this year. The deadline to submit feedback (through the above link) is March 13.

PAHPA authorizes many of the federal government’s biodefense and pandemic preparedness programs, including the Administration for Strategic Preparedness and Response, the National Health Security Strategy, and the Biomedical Advanced Research and Development Authority. PAHPA reauthorizations have also established and enhanced other federal emergency response programs, including the Strategic National Stockpile, the Project BioShield Special Reserve Fund, Public Health Emergency Preparedness cooperative agreements and the Hospital Preparedness Program.


CMS Releases New Memo on PHE Transition. On February 27, the Centers for Medicare & Medicaid Services (CMS) released a new fact sheet on the transition from the COVID-19 public health emergency (PHE), which is scheduled to end on May 11. CMS also continues to update its issue-specific fact sheets, which are found on its landing page on waivers and flexibilities.

DEA Releases Proposed Telehealth Rules. On February 24, the US Drug Enforcement Administration (DEA) released proposed rules related to the prescribing of controlled substances via telehealth. The proposed rules—found here and here—would set forth policies to replace the flexibilities that have existed under the COVID-19 PHE.

Prior to the PHE, telehealth prescribing of controlled substances was permitted following one in-person visit. That in-person requirement was lifted during the PHE, allowing for the prescribing of medically necessary controlled substances through telehealth.

The proposed rules would allow medical practitioners to provide an initial prescription for the following substances via telehealth without an in-person evaluation or referral from a medical practitioner that has conducted an in-person evaluation, as long as the prescription is otherwise consistent with any applicable federal and state laws:

  • A 30-day supply of Schedule III, IV or V non-narcotic controlled medications
  • A 30-day supply of buprenorphine for the treatment of opioid use disorder.

For refills of those substances beyond 30 days, or for the prescription of Schedule II or narcotic controlled medication, an in-person visit must occur. A summary chart from DEA can be found here, a highlights document for medical practitioners can be found here, and explanatory flow charts can be found here and here.

While stakeholders had hoped to maintain the pandemic-era flexibilities, the DEA’s proposed rules more strictly limit prescribing via telehealth compared to the flexibilities that have existed under the PHE. Under such limitations, patients who face significant barriers to accessing care without telehealth may have difficulty receiving the controlled medications they need.

The proposed rules also would ease the transition by maintaining current PHE-related flexibilities for an additional 180 days beyond the PHE’s expiration, which is scheduled for May 11. Comments on the proposed rules are due by March 31.


  • President Biden delivered remarks on protecting access to affordable healthcare. The remarks, along with an accompanying fact sheet, focused on concerns regarding efforts by congressional Republicans to undermine the Affordable Care Act and make cuts to Medicaid that would impact care for millions of Americans, and contrasted these positions with the Administration’s efforts to protect and expand access to healthcare through these programs.
  • CMS released a proposed rule impacting Medicaid disproportionate share hospital payments to revise regulations on the counting of days associated with individuals eligible for certain benefits provided by section 1115 demonstrations in the Medicaid fraction of a hospital’s disproportionate patient percentage. This builds on previous proposed rules that were withdrawn. Comments are due by May 1.
  • The House Select Subcommittee on the Coronavirus Pandemic held a roundtable examining COVID-19 policy decisions to prepare for future emergencies by learning from past decisions.
  • Under the No Surprises Act, certified independent dispute resolution entities resumed issuing payment determinations effective February 27 for disputes involving items or services furnished before October 25, 2022. Additional information can be found here.
  • The US Department of Health and Human Services announced new divisions within the Office for Civil Rights (OCR) in an effort to better address growing enforcement needs and increasing data breaches. OCR established an Enforcement Division, Policy Division and Strategic Planning Division to provide a more integrated operational structure for civil rights, conscience protections, privacy protections and cybersecurity protections.
  • House Committee on Oversight and Accountability Chairman James Comer (R-KY) launched an investigation into pharmacy benefit managers (PBMs). The chairman sent letters (included in the previous link) to CMS, the Office of Personnel Management, the Defense Health Agency and the largest PBMs, asking for documents, communications and information related to PBM practices.


  • The House Energy and Commerce Subcommittee on Innovation, Data, and Commerce held a hearing on a national standard for data privacy. The subcommittee debated whether Congress should advance legislation that would establish comprehensive privacy and data security protections, or continue with a state-by-state approach.
  • The Senate HELP Committee held a hearing on community health centers. The committee discussed the importance of community health centers as primary care providers and the need to extend their federal funding, which is due to expire on September 30 without congressional action.
  • MedPAC is holding a public meeting on March 2-3 focusing on Medicare wage index reforms, Part B drug prices, a post-acute care prospective payment system, Medicare Advantage payment policy and aligning fee-for-service payment rates across ambulatory settings.
  • PTAC is holding a public meeting on March 2-3, focusing on specialist integration within population-based total cost of care models and physician-focused payment models.
  • MACPAC held a public meeting on March 2. The commission discussed unwinding the continuous coverage requirements in Medicaid and other flexibilities, experiences of full-benefit dually eligible beneficiaries in integrated care models, and state flexibilities to coordinate care in the absence of full-risk capitation, among other topics.


The House and Senate are both in session next week. Congress is expected to receive the president’s FY 2024 budget request on March 9, laying out the Biden Administration’s funding and policy goals for the coming year.

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

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