McDermottPlus Check-Up: September 30, 2022 - McDermott+Consulting

McDermottPlus Check-Up: September 30, 2022


Congress’s primary focus this week was advancing a stopgap funding bill, known as a continuing resolution (CR), before the end of the fiscal year on September 30. The Senate approved the bill on September 29, and the House followed suit on September 30. The CR now heads to the president’s desk to be signed into law. The Administration hosted a White House conference on Hunger, Nutrition and Health and announced new policies in that arena, and the Centers for Medicare & Medicaid Services (CMS) released Medicare premiums and deductibles for 2023.


CR Advances in Senate and House. On September 26, Senate leaders released the text and section-by-section of the CR and moved quickly to advance the bill to avert a government shutdown when the new fiscal year begins on October 1. The CR funds the government at current levels through December 16, giving lawmakers time to pass a comprehensive FY 2023 appropriations package when they return to Washington after the midterm elections.

In addition to extending government funding, the CR includes several health policy provisions. Except for the user fees, these policies are only short-term extensions and will need to be renewed come December:

  • A five-year reauthorization of the US Food and Drug Administration’s user fee programs, without larger policy riders, such as those contained in the Verifying Accurate Leading-edge IVCT Development (VALID) Act, dietary supplements and cosmetic reform
  • An extension of the low-volume payment adjustment to Medicare hospital payments through December 16
  • An extension of the Medicare Dependent Hospital Program through December 16
  • Increased federal medical assistance percentage for Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam and the US Virgin Islands through December 16
  • Continuation of the maternal, infant and early childhood home visiting programs through December 16.

The CR initially included the energy permitting language that Senator Manchin (D-WV) had been pushing, but on September 27 he acknowledged he did not have the 60 votes necessary to move forward and asked to have the provision removed from the CR. With that sticking point eliminated, the Senate took a procedural vote on September 27, and the bipartisan 72–23 vote indicated smooth sailing toward Senate passage, which occurred on September 29 by a vote of 72–25.

The CR then moved to the House, where it was approved by a vote of 230—201 on September 30. The bill is expected to be signed into law by President Biden imminently, averting a government shutdown and giving lawmakers until December 16 to advance an appropriations package for the remainder of FY 2023.


Biden Administration Advances Efforts Related to Hunger, Nutrition and Medicaid Coverage. On September 26, the White House released a National Strategy on Hunger, Nutrition, and Health to build on the federal government’s existing work to address hunger and diet-related diseases through action items across five main pillars: improving food access and affordability, integrating nutrition and health, empowering consumers to make and have access to healthy choices, supporting physical activity for all, and enhancing nutrition and food security research.

The Administration’s focus on these efforts continued with a White House Conference on Food, Nutrition and Hunger on September 28, where the Administration announced more than $8 billion in private- and public-sector commitments related to the national strategy.

Also on September 28, CMS announced the approval of Medicaid Section 1115 demonstration initiatives in Massachusetts and Oregon that aim to test improvements in coverage, access and quality with innovative approaches to ensure more eligible people retain their Medicaid coverage. The initiatives also take steps to address unmet health-related social needs, such as by giving Massachusetts and Oregon new authority to test coverage for evidenced-based nutritional assistance and medically tailored meals, clinically tailored housing supports, and other interventions for certain beneficiaries where there is a clinical need.

GAO Releases Report on Telehealth. On September 26, the US Government Accountability Office (GAO) released a report titled “Medicare Telehealth: Actions Needed to Strengthen Oversight and Help Providers Educate Patients on Privacy and Security Risks.” The 75-page report describes the utilization of Medicare telehealth services under current pandemic-related waivers, CMS efforts to identify and monitor risks posed by the current waivers, and a change made by the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) to the enforcement of regulations governing patients’ protected health information during the COVID-19 public health emergency (PHE).

GAO made four recommendations—three directed to CMS and one directed to OCR—aimed at remedying the issues set forth in the report:

  • CMS should develop an additional billing modifier or clarify its guidance regarding billing of audio-only office visits to allow the agency to fully track these visits.
  • CMS should require providers to use available site of service codes to indicate when Medicare telehealth services are delivered to beneficiaries in their homes.
  • CMS should comprehensively assess the quality of Medicare services, including audio-only services, delivered using telehealth during the PHE.
  • OCR should provide additional education, outreach or other assistance to providers to help them explain the privacy and security risks to patients in plain language when using video telehealth platforms to provide telehealth services.

Among its utilization findings, the GAO report found that the use of telehealth services increased from about five million services pre-waiver (April to December 2019) to more than 53 million services post-waiver (April to December 2020) and that, post-waiver, 5% of providers delivered more than 40% of telehealth services, and 5% of beneficiaries accounted for almost 40% of telehealth utilization.

The report noted that CMS lacks complete data on the use of audio-only technology and telehealth visits furnished in patients’ homes, because there is no billing mechanism for providers to identify all instances of audio-only visits, and because providers are not required to use available codes to identify visits furnished in homes. The GAO report also noted that OCR did not advise providers about specific language to use or give direction on explaining risks to patients, with respect to OCR’s March 2020 policy that it would not impose penalties against providers for noncompliance with privacy and security requirements in connection with the good faith provision of telehealth during the PHE.

This GAO report comes on the heels of a recent report from the HHS Office of Inspector General that found little evidence of waste and fraud related to Medicare telehealth services during the first year of the pandemic. These reports are part of a broader push by Congress and the Administration to examine current telehealth flexibilities and determine how to extend them beyond the COVID-19 PHE.

CMS Announces 2023 Medicare Premiums and Deductibles. On September 27, CMS released 2023 premiums, deductibles and coinsurance amounts for Medicare Parts A and B, and the Medicare Part D income-related monthly adjustment amounts.

In 2023, the standard monthly premium for Medicare Part B enrollees will be $164.90, a decrease of $5.20 (from $170.10) in 2022, and the deductible for all Medicare Part B beneficiaries will be $226, a decrease of $7 (from $233) in 2022. The decreases stem from a decline in the price of Aduhelm and limitations on its usage, as that Alzheimer’s drug was the main factor for the spike in monthly Part B premiums in 2022, according to CMS.

For Part A, the inpatient hospital deductible (which beneficiaries pay if admitted to the hospital) will be $1,600 in 2023, an increase of $44 from $1,556 in 2022.

For Part D, where higher income beneficiaries’ monthly premiums are adjusted based on income, CMS set forth the 2023 monthly adjustment amounts, beginning with beneficiaries with less than $97,000 in modified adjusted gross income (no monthly Part D adjustment) and incrementally increasing to a $76.40 monthly premium adjustment for those whose modified adjusted gross income is greater than $500,000.

Medicare open enrollment for 2023 begins on October 15 and ends on December 7.


  • The Congressional Budget Office released a report identifying policy approaches that federal lawmakers could adopt to reduce the prices that commercial insurers pay for hospitals’ and physicians’ services, focusing on efforts related to price transparency, promoting competition and capping price growth.
  • CMS announced public data that provides more information about the ownership of all Medicare-certified nursing homes.
  • A federal judge ruled that HHS must immediately halt its cuts to outpatient reimbursement rates under the 340B program rather than waiting until 2023. The cuts were found unlawful in a Supreme Court decision earlier this year, and in the September 28 ruling, the district court judge stated that “HHS should not be allowed to continue its unlawful 340B reimbursements for the remainder of the year just because it promises to fix the problem later.”
  • The Medicare Payment Advisory Commission held a two-day public meeting focused on support for safety net clinicians, a unified post-acute care prospective payment system, nursing facility staffing, the expansion of telehealth, the utilization and availability of mental health services, and Part D data on drug rebates and discounts.
  • The House passed a mental health bill (H.R. 7780) focused on increasing the number of school-based mental health services providers, establishing requirements for higher education institutions concerning students with disabilities, and prohibiting arbitration and discretionary clauses in employer-sponsored benefit plans.
  • House Energy and Commerce Committee Republicans sent a letter to the Centers for Disease Control and Prevention and the National Institutes of Health, requesting a meeting and asking a series of questions on biosafety priorities. Such oversight priorities are expected to be a significant focus for Republicans should they gain control of the House after the midterm elections.
  • The House Oversight and Reform Committee held a hearing titled “Examining the Harm to Patients from Abortion Restrictions and the Threat of a National Abortion Ban.”
  • A group of healthcare organizations (including the American Hospital Association, the American Medical Association, the College of Healthcare Information Management Executives and others) wrote to HHS Secretary Becerra, asking the agency to give providers an additional year to comply with a broader definition of electronic health information sharing that is set to take effect October 6.
  • More than 800 healthcare associations, accountable care organizations, medical practices and health systems wrote a letter to congressional leadership, asking for the extension of incentive payments intended to encourage participation in risk-bearing alternative payment models.


With the completion of the CR, the House and Senate are expected to be in recess until after the midterm elections.


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

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