McDermottPlus Check-Up: October 16, 2020 - McDermott+Consulting

McDermottPlus Check-Up: October 16, 2020

This Week’s Dose

Healthcare took center stage at the Supreme Court confirmation hearings for Judge Amy Coney Barrett. Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi (D-CA) resumed negotiations on further coronavirus (COVID-19) relief legislation, though prospects for passage before Election Day remain slim.


Healthcare Dominated Supreme Court Confirmation Hearings. The Senate Judiciary Committee conducted four days of hearings on the Supreme Court nomination of Judge Coney Barrett, during which Democrats focused heavily on the fate of the Affordable Care Act (ACA). The Supreme Court is scheduled to hear oral arguments in a case on November 10 on whether the individual mandate is constitutional and, if not, whether the rest of the law can stand. Democrats have suggested that Coney Barrett would almost certainly vote to overturn the ACA if confirmed, eliminating protections for people with preexisting conditions and disrupting the entire healthcare system, though Coney Barrett downplayed the impact of the ACA case and did not directly answer questions about how she would rule if confirmed. Republicans on the Committee dismissed the issue, suggesting the Supreme Court is unlikely to strike down the entire law. The Supreme Court vacancy and ongoing confirmation fight have heighted the fate of the ACA as a political issue ahead of Election Day. The Judiciary Committee is scheduled to vote on Coney Barrett’s nomination on October 22, and she is expected to be confirmed by the Senate.

COVID-19 Relief Before Election Day Remains a Long Shot. While Senate Majority Leader Mitch McConnell (R-KY) claims that the chamber will work to pass a targeted relief bill before the election, the Republicans’ $500 billion proposal is far below what Democrats have demanded. Meanwhile, Secretary Mnuchin and Speaker Pelosi have restarted talks of a broader deal, though it is unclear if the White House and House Democrats can reach a compromise between their latest proposals, which remain far apart. Even if Mnuchin and Pelosi reach a compromise, it may not have sufficient support from Senate Republicans, many of whom have suggested that they do not support further stimulus spending. The Senate is scheduled to reconvene on October 19, just two weeks before the election. The tight timeline and the fact that a compromise has yet to emerge mean it is highly unlikely that COVID-19 relief legislation will become law before Election Day.

Bipartisan Lawmakers Urged HHS to Change PRF Reporting Requirements. Republican and Democratic senators sent letters to the Department and Health and Human Services (HHS) urging the Department to revise the September 19 Provider Relief Fund (PRF) reporting requirements. The reporting requirements detail the Department’s approach to COVID-19 related expenses and lost revenue. In their letters, the senators raise concerns that the reporting requirements cause uncertainty and financial hardship for providers who accepted funds from the PRF long before these requirements were announced. Senate Majority Leader McConnell and Minority Leader Chuck Schumer (D-NY) also sent similar letters, heightening the political pressure on HHS. Given the mounting pressure, the guidance is likely to be modified before the reporting portal opens on January 15, 2021. HHS has indicated that more information on the reporting requirements will be available next week, though how HHS will address these concerns remains unclear. For more information on the PRF, see our Toolkit.


CMS Added New Medicare Telehealth Services and Released Medicaid Data. The Centers for Medicare and Medicaid Services (CMS) added 11 new services to the list of Medicare-covered telehealth services during the COVID-19 Public Health Emergency (PHE). These are the first additions that have been made through the modified process CMS put into place in May, which allows the agency to add telehealth services outside of a formal regulation. The agency also released a preliminary Medicaid and Children’s Health Insurance Program (CHIP) data snapshot on telehealth utilization during the PHE, as well as a supplement to its State Medicaid and CHIP Telehealth Toolkit that includes new information from states that have implemented telehealth changes. These are the latest of several actions the Administration has taken to expand telehealth services and flexibilities during the PHE, and stakeholders continue to press Congress to make some of the larger telehealth flexibilities permanent, such as the waiver of originating site and geographic requirements.


CMS Approved Georgia 1115 Waiver. The Section 1115 waiver, known as Pathways to Coverage, would provide a partial Medicaid expansion for certain residents who have incomes up to 100% of the federal poverty line. In order for an individual to be eligible for coverage under the plan, they must work or participate in community engagement activities for a minimum of 80 hours per month. Certain beneficiaries will also be required to pay monthly premiums on a sliding scale, not to exceed 2% of household income. This makes Georgia the eleventh state with an approved 1115 waiver to implement work requirements; however, courts have blocked the implementation of these efforts in several states. CMS did not approve Georgia’s request for enhanced Federal Medical Assistance Percentage for the partial expansion as part of this waiver. CMS and Georgia are also working toward approval of a 1332 waiver that would implement a reinsurance program while eliminating the state’s Marketplace and allowing the private market to entirely conduct enrollment. Expect both proposals to face legal challenges.

Quick Hits

  • Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-TN) and House Energy and Commerce Committee Ranking Member Greg Walden (R-OR) asked for stakeholder input on “modernizing” the 340B drug pricing program, citing a lack of data necessary for proper oversight and the recent action of drug companies to limit the involvement of contract pharmacies. Comments are due October 30, 2020.
  • Democratic leadership of the Senate Finance and House Energy and Commerce and Ways and Means committees sent a letter urging the Government Accountability Office to review the Trump Administration’s plan to distribute $200 drug discount cards to Medicare beneficiaries ahead of the election. The lawmakers sent a similar letter to HHS requesting more information on the proposal and expressing concerns over its legality.
  • Republican leadership of the House Energy and Commerce Committee sent a letter requesting information from the Food and Drug Administration on how its labeling of OxyContin may have contributed to the opioid epidemic.
  • HHS published frequently asked questions that specify that providers cannot use funds received through the PRF to repay Accelerated and Advance Payment (AAP) Program loans. A press release from CMS last week incorrectly stated that PRF funds could be used to repay AAP loans. The press release was subsequently edited to remove that language.
  • CMS announced that starting January 1, 2021, Medicare will pay $100 only to laboratories that complete high throughput COVID-19 diagnostic tests within two days of specimen collection. For laboratories that take longer than two days to complete these tests, Medicare will pay a rate of $75.
  • CMS extended the comment period for a request for information seeking feedback on a draft national data set for Medicaid-funded home and community-based services. The new deadline to submit comments is November 18, 2020.
  • The Health Care Payment Learning and Action Network (LAN) held its 2020 summit on October 13. During the summit, LAN requested commitments to its Healthcare Resiliency Framework that describes key actions stakeholders can take to promote more resilient and effective alternative payment models. More information is available here.

M+ Resources

  • Party control of the Senate will have significant implications for healthcare policy in 2021 and beyond. McDermottPlus VP Rodney Whitlock offers his take on the historical context behind this year’s most competitive Senate races in this article and on this week’s episode of the Health Policy Breakroom.
  • On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act was enacted extending the recoupment and repayment timeline for all providers and suppliers who received payments through the AAP Program. Our timeline provides additional detail on the newly extended recoupment and repayment period.
  • The PRF includes $175 billion in resources for healthcare providers responding to the COVID-19 pandemic. Our Toolkit provides a detailed analysis of the PRF, including timelines, distribution, links and other important details.
  • The 2020 election is around the corner and the results will significantly shape the health policy landscape in 2021 and beyond. Follow our Special Election Coverage page for all our analysis related to the election and its health policy implications.

Next Week’s Diagnosis

Lawmakers continue discussions on COVID-19 relief. The House Ways and Means Oversight Subcommittee will hold a hearing on maximizing health coverage enrollment.


For more information, contact Mara McDermott, Kristen O’Brien, Rachel Stauffer, Emma Zimmerman or Katie Waldo.

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