McDermottPlus Check-Up: November 12, 2021 - McDermott+Consulting

McDermottPlus Check-Up: November 12, 2021

This Week’s Dose

The Congressional Budget Office starts scoring the Build Back Better Act. Vaccine mandates face legal challenges.


The Congressional Budget Office (CBO) Released First Scores on the Build Back Better Act (BBB). CBO scores are an analysis of spending and financing measures that are key to understanding the legislation’s impact and demonstrating that revenues are equal to or greater than outlays. This week, CBO analyzed a handful of the titles in the soft infrastructure package (small business, veterans, homeland security and science and technology). However, scores for nearly all of the healthcare provisions are still pending and may not be complete until at least late next week. Scoring of some policies, like Medicare price negotiation authority, could take even longer. Last week, the Joint Committee on Taxation released its analysis of the spending and financing provisions (major healthcare policies fall into both categories), which estimated that all new spending would be paid for.

Several moderate House Democrats, however, want to at least see official topline CBO scores before endorsing the House’s final version of the package. With Speaker Pelosi planning to have the House act on the BBB next week, a vote may be called before there is a complete CBO score for the package. Time is of the essence for the House to clear BBB, as there are looming deadlines for other priorities — Congress comes back next week, takes the following week off for Thanksgiving, and returns to work November 29 — the week ending on December 3 when government funding is set to run out again. This requires Congress to focus on passing another short-term continuing resolution to fund the government before December 3, leaving much to get done in the coming weeks.

States and Courts

Courts Review Vaccine Mandates for Large Employers and Health Facilities. Last week, the Centers for Medicare and Medicaid Services (CMS) and the Occupational Health and Safety Administration (OSHA) released rules outlining COVID-19 vaccination and, for the OSHA regulation, testing requirements. On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked the OSHA rule, halting its implementation. On November 10, ten state attorneys general filed suit in the U.S. District Court for the Eastern District of Missouri, claiming the CMS rule is similarly unlawful. Despite these legal challenges, stakeholders are continuing to review the details of the requirements as enforcement could still begin early next year.

Quick Hits

  • President Biden officially tapped Robert Califf as his nominee for Commissioner of the U.S. Food and Drug Administration (FDA). Califf previously served in the post from 2016-2017.
  • CMS announced that it is rescinding the Medicare Coverage of Innovative Technology and Definition of “Reasonable and Necessary” (MCIT/R&N) final rule due to patient safety and quality concerns. The rule would have granted expedited Medicare coverage for certain “breakthrough” devices after market authorization.
  • The Department of Health and Human Services (HHS) has launched a new maternal and infant care initiative that brings together more than 200 hospitals to address health disparities.
  • HHS will direct another $650 million in funding to support rapid COVID-19 diagnostic testing across a variety of community care and home settings.
  • CMS will allow physicians to use the extreme and uncontrollable circumstance policy to the 2021 performance year for the Merit-based Incentive Payment System (MIPS). Under this policy, eligible clinicians will automatically have all four MIPS performance categories reweighted to 0% and receive a neutral payment adjustment.
  • The Kaiser Family Foundation released the 2021 Employer Health Benefits Survey, finding that premiums on employer-sponsored plans rose 4% this year and noting significant changes in the provision of telehealth and mental health services by employers.

M+ Resources>

  • Listen here: Shelia Madhani and Deb Godes return to discuss the dual payment rules CMS released last week that address telehealth and other COVID-19 flexibilities, updates to the underlying practice expense, finalizing payment rates and policy changes affecting Medicare payment for physician services and for services furnished in hospital outpatient and ambulatory surgical center (ASC) settings.

Next Week’s Diagnosis

The House and Senate return. President Biden will sign the bipartisan infrastructure package into law at a ceremony on Monday. Build Back Better Act negotiations will continue as CBO scores provisions of the bill and the House potentially votes on the legislation.


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

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