9.4.18 – 9.7.18 Health Wrap Up

Please find below a summary of the latest major health policy developments in Washington this week. Please let us know if you have any questions.


House Republicans said Wednesday they are preparing to bring three appropriations conference reports encompassing as many as nine of the 12 fiscal 2019 spending bills to the floor this month, while taking up a separate continuing resolution to fund the remainder of the government beyond the midterm elections.

Labor HHS Subcommittee Ranking Member Rosa DeLauro (D-CT) said on Wednesday that conference negotiations on that measure are moving forward with the Senate’s allocation of $179.29 billion, which is $2.2 billion higher than the House committee-approved version. On Tuesday, the House agreed by voice vote to go to conference with the Senate on the combined Defense/Labor HHS measure, and also named conferees. The Senate formally named conferees on Thursday. In the meantime, we understand that subcommittee staff are making good progress on conference negotiations and are still working towards the goal of sending a package containing the Defense and Labor HHS bills to the President before September 30.

One potential roadblock to completing action on FY19 spending bills before the end of the fiscal year is President Trump’s changing opinion on a government shutdown over funding for a border wall. On Wednesday, Republican leaders met with the President at the White House to try to keep him on board with delaying a fight over the border wall until the lame duck session after the elections.  Republican leaders, including President Trump himself, have gone out of their way to convey that there is no appetite for a shutdown, but following the meeting Trump appears to be backpedaling on that position saying, “If it happens, it happens. If it's about border security, I'm willing to do anything.” It is unclear from Trump’s latest threats if he is in favor of a pre-election funding lapse or if he would be willing to hold off shutting down the government until after the midterm elections.


Yesterday, Senate leaders announced the Senate will vote next week on a legislative package to address the opioid misuse and overdose epidemic.  As of press time, only a section-by-section summary of the bill has been officially released. Consistent with previous reports, provisions included in the House-passed legislation such as expanding buprenorphine prescribing authorities, modifying the 42 CFR Part 2 patient privacy protections, and partially repealing the Institution of Mental Disease (IMD) exclusion are not part of the Senate legislation.

Next week’s consideration will be under a time agreement and amendments will not be permitted.

Once the Senate passes the bill a conference of some type – either formal or informal – will likely begin. The current expectation is that final passage may have to wait until after the November elections given the limited amount of time Congress is scheduled to be in Washington this fall.


Energy and Commerce Committee Oversight Subcommittee Hearing on Nursing Homes

On Thursday, the House Energy and Commerce Committee Oversight and Investigations Subcommittee held a hearing entitled, “Examining federal efforts to ensure quality of care and resident safety in nursing homes.”  Witnesses included:

    • Mr. John Dicken, Director, Health Care, U.S. Government Accountability Office
    • Ms. Ruth Ann Dorrill, Regional Inspector General, Office of Inspector General, U.S. Department of Health and Human Services
    • Dr. Kate Goodrich, Director, Center for Clinical Standards and Quality, and Chief Medical Officer, Centers for Medicare & Medicaid Services

Full witness testimony is available here. During the hearing, Members on both sides of the aisle raised concerns about whether the Centers for Medicare and Medicaid Services (CMS) is adequately overseeing nursing home quality and safety standards.  Members were so closely in agreement that Ranking Member DeGette (D-CO) asked to have her prepared opening statement entered into the record, but did not deliver it as she said it mirrored so closely what Subcommittee Chair Harper (R-MS) had just said in his opening remarks.

One of the key concerns raised by Members included the rates of harm experienced by Medicaid beneficiaries in nursing homes – Chairman Harper noted that a 2014 Office of the Inspector General (OIG) report found that approximately 1/3 of residents experienced some type of harm during their nursing home stay and nearly 60% of these incidents were “clearly preventable or likely preventable.”

Additionally, Members discussed disaster preparedness at nursing homes and cited the deaths of at least a dozen residents at a Florida facility last year following Hurricane Irma.

As noted above, Members raised serious concerns with CMS’ oversight of these facilities.  Chairman Harper stated that, “it should not take a tragedy like what was seen at the Rehabilitation Center at Hollywood Hills to make CMS mindful, or take action in response, of conditions at nursing homes that threaten residents’ well-being.  However, the Committee’s oversight, and reports issued by OIG and GAO, suggest that this isn’t necessarily the case.  Improving care for vulnerable populations, including the care provided to nursing home residents, has been identified by OIG as a top management  challenge for over a decade.  We want to know why this continues to be a top management challenge, what steps CMS is taking to improve efforts to enforce existing regulatory requirements, and how the agency is addressing any gaps in its oversight.”

The hearing followed a letter this spring to CMS regarding the adequacy of CMS’ oversight over skilled nursing facilities and nursing facilities.

Pharmacy Gag-Clause Bills

The full Senate and the House Energy and Commerce Health Subcommittee both passed legislation this week to ban so-called “gag clauses” that prevent pharmacists from telling patients when it may be cheaper to buy drugs without using their health insurance benefit.

Specifically, the Senate passed the Know the Lowest Price Act (S. 2553) which applies to Medicare Advantage and Part D plans and next week will vote on the Patient Right to Know Drug Prices Act (S. 2554) which applies to the Affordable Care Act’s (ACA) exchange plans and private health plans.

The House Energy and Commerce Health Subcommittee passed a draft bill sponsored by Rep. Carter (R-GA) to prohibit group health plans, health insurance issuers, prescription drug plan sponsors and Medicare Advantage plans from prohibiting the sharing of this cost information by pharmacists.

Energy and Commerce Health Subcommittee Markup

A full list of bills, including the pharmacy “gag-clause” bill considered and approved by the Energy and Commerce Health Subcommittee is below with descriptions provided by the Committee:

  • H.R. 3891, to amend title XIX of the Social Security Act to clarify the authority of State Medicaid fraud and abuse control units to investigate and prosecute cases of Medicaid patient abuse and neglect in any setting, and for other purposes, authored by Rep. Tim Walberg (R-MI) and Rep. Peter Welch (D-VT), passed by voice vote.
    • H.R. 3891 will clarify the authority of State Medicaid Fraud and Abuse Control Units (MFCUs). This clarification will give these important units the authority to investigate and prosecute abuse and neglect of Medicaid beneficiaries in non-institutional settings as well as broaden the permissible use of federal MFCU funds to screen complaints or reports alleging potential abuse or neglect of Medicaid beneficiaries.
  • H.R. 5306, the Ensuring Medicaid Provides Opportunities for Widespread Equity, Resources (EMPOWER) and Care Act, authored by #SubHealth Vice Chairman Brett Guthrie (R-KY) and Rep. Debbie Dingell (D-MI), passed, as amended, by voice vote.
  • H.R. 5306, as amended, will extend the Money Follows the Person Demonstration (MFP) program in Medicaid for an additional year. The MFP program provides resources to state Medicaid programs to help transition individuals with chronic conditions and disabilities from institutions back into local communities.
  • H.R. 3325, the Advancing Care for Exceptional (ACE) Kids Act, authored by Energy and Commerce Committee Vice Chairman Joe Barton (R-TX) and Rep. Kathy Castor (D-FL), passed, as amended, by voice vote.
  • H.R. 3325 will improve the delivery of care for children with complex medical conditions who receive care under Medicaid, by providing enhanced federal matching for a limited period of time for care coordination services. The bill builds upon the “health home” model that has been successful for helping state Medicaid programs improve care for populations under current law.
  • H.R. __, a discussion draft to prohibit the use of so-called “gag clauses” in Medicare and private health insurance plans, passed by voice vote.
  • Today, some health insurance contracts prevent pharmacists from informing patients when the cash price for their prescription costs less than their insurance cost-sharing arrangement unless the individual directly asks. As a result, customers may be paying more for their prescriptions. This language bans group health plans offered by employers and individual health insurance plans – as well as Medicare Advantage and Medicare Part D Plans – from restricting a pharmacy’s ability to inform a customer about the lower cost, out-of-pocket price for their prescription.
  • H.R. __, the Strengthening the Health Care Fraud Prevention Task Force Act of 2018, passed, as amended, by voice vote.
  • Currently operated by the Centers for Medicare and Medicaid Services (CMS), the Healthcare Fraud Prevention Partnership (HFPP) is a voluntary public-private partnership between the federal government, state agencies, law enforcement, private health insurance plans, and health care anti-fraud associations. The HFPP operates to detect and prevent health care fraud through public-private information sharing, streamlining analytical tools and data, and providing a forum for government and industry experts to exchange successful anti-fraud practices. The bill establishes explicit authority for HFPP and its activities, better equipping them to define the rules and responsibilities of its members and expand the scope of allowable activities to address more in the spectrum of fraud and abuse in our health care system.
  • H.R. __, a discussion draft to amend title XIX of the Social Security Act to provide the Medicare Payment Advisory Commission with access to certain drug rebate information, passed by voice vote.
  • This bill makes a technical correction to the statute regarding information the Centers for Medicare and Medicaid Services (CMS) may provide to the Medicare Payment Advisory Commission (MedPAC) and the Medicaid and CHIP Payment Advisory Commission (MACPAC). In letters to the committee, the commissions have been advised by CMS that due to current statute, the commissions cannot access drug rebate data. Since the commissions can still provide recommendations on these issues to Congress, the bill would provide the commissions access to this data, so that any such recommendations for Medicare and Medicaid beneficiaries are informed by factual data.

The text of the bills and other materials are available here.


Next week, the House will vote on legislation to make modifications to the Affordable Care Act’s (ACA) employer mandate and tax requirements.  As modified, the Save American Workers Act (HR 3798) will:


  • Increase the definition of “full time employee” under the employer mandate from 30 hours a week to 40 hours a week. Under current law, the employer mandate stipulates that any employer with more than 50 employees who work on average at least 30 hours a week must provide those employees minimum essential coverage or pay a $2320 penalty per employee.
  • Retroactively impose a moratorium on the employer mandate for 2015-2018, allowing a reprieve from penalties imposed on businesses which chose to pay the penalty.
  • Delay the Cadillac Tax until 2023.  The Cadillac tax imposes a 40% excise tax on high-cost insurance plans which exceed a certain threshold of value. The Cadillac Tax originally was to be imposed beginning in calendar year 2018, but has previously been delayed until 2022.
  • Repeal the 10% excise tax on indoor tanning services (also established in the ACA).

Although the bill increases deficits by $39 billion over the next ten years, the bill does not offer a pay-for.


As of press time, the following upcoming hearings of note have been noticed:

September 13

  • House Energy and Commerce Committee Health Subcommittee hearing entitled, “Examining barriers to expanding innovative, value-based care in Medicare.”
  • House Oversight and Government Reform Committee hearing entitled, “Evaluating federal disaster response and recovery efforts.”


September 14

  • House Judiciary Committee Subcommittee on the Constitution and Civil Justice hearing entitled, “Examining sober living homes”

September 18

  • Senate Health, Education, Labor and Pensions (HELP) Committee hearing entitled, “Reducing health care costs: examining how transparency can lower spending and empower patients.”  Witnesses will include:
  • Leah Binder, President and CEO, The Leapfrog Group
  • Bill Kampine, Co-Founder and Senior Vice President of Client Analytics, Healthcare Bluebook
  • Nancy Giunto, Executive Director, Washington Health Alliance
  • Ty Tippets, Administrator, St. George Surgical Center



On Tuesday, the Senate Judiciary Committee began its confirmation hearings on Judge Brett Kavanaugh to serve on the US Supreme Court (as of this report, the hearings had not concluded). Currently Kavanaugh serves on the powerful Court of Appeals for the District of Columbia.  The confirmation hearings were marked by frequent interruptions from the audience, as well as senators interrupting each other.  Democrats have raised concerns that too much of Kavanaugh’s record has been withheld, or provided to them with little time to fully review.

One of the key topics discussed during the hearings were Kavanaugh’s decisions related to abortion, the Affordable Care Act, and health care generally.  With the case Texas v. Azar seeking to undo the ACA having been argued in a North Texas federal court this week, regardless of the outcome, the likelihood is very high that the eventual resolution will be heard by the US Supreme Court.  Senators pushed Kavanaugh on his position regarding the legality of preexisting condition protections, qualified health coverage, and other central elements of patient protection in the ACA.  Kavanaugh was very disciplined in responding with his standard response that he cannot comment on matters which may come before the Court.

Much of the attention was also focused on Kavanaugh’s position on abortion.  Key senators Lisa Murkowski of Alaska and Susan Collins of Maine are strong supporters of access to abortion. Many experts wonder whether those senators can support a nominee with overt opposition to abortion.  Kavanaugh has reportedly stated that the right to an abortion is settled law.  However, documents released show Kavanaugh has previously questioned whether abortion is settled law.  Furthermore, some senators cast doubt on the concept of settled law generally, noting that the Supreme Court can overturn precedent at any time.


Katie Weyforth Vanlandingham

Van Scoyoc Associates

800 Maine Ave SW

Suite 800

Washington, DC  20024