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Schumer Says Senate to Vote Early in 2022 on Build Back Better
December 20, 2021 6:27 am

The Senate will consider the Build Back Better Act “very early in the new year so that every Member of this body has the opportunity to make their position known on the Senate floor,” Senate Majority Leader Chuck Schumer writes in letter.

  • “We are going to vote on a revised version of the House-passed Build Back Better Act – and we will keep voting on it until we get something done”
  • If Senate Republicans “continue to abuse the filibuster and prevent the body from considering this bill, the Senate will then consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation”
  • NOTE: Manchin Leaves Democrats Hanging With Biden Bill Rejection
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Federal Budget   
12/20/21 6:27 AM EDT   
     
Schumer Says Senate to Vote Early in 2022 on Build Back Better
Bloomberg

The Senate will consider the Build Back Better Act “very early” in the new year so that every Member of this body has the opportunity to make their position known on the Senate floor,” Senate Majority Leader Chuck Schumer writes in letter.

Major Health Reforms In Limbo After Manchin Pulls Plug On BBB
December 19, 2021 6:55 pm

After half a year of negotiating, Sen. Joe Manchin pulled the plug on the president’s signature Build Back Better bill, casting uncertainty over the bill’s health reforms, including Medicare drug price negotiation, Medicare hearing benefits, closure of the Medicaid coverage gap and extension of the enhanced Affordable Care Act tax credits.

On Sunday, the West Virginia Democrat said on Fox News that he will not vote for Democrats’ social spending bill because it is too costly, even though he had already forced Democrats to cut the bill in half and scale back its health reforms.

Manchin, whose vote is needed to pass the partisan budget reconciliation bill, said he worries about increasing the debt. Democrats wanted to add several Medicare benefits, but only the hearing benefit was left in the $1.7 trillion bill. Backers of expanding health care coverage were already worried that many of the bill’s additional health care benefits would be crowded out by Manchin’s position on the child tax credit. Manchin insists on extending the child tax credit from one year to a decade to get an honest accounting of its cost. A 10-year child tax credit would cost more than $1 trillion.

Unlike other health care measures, the Medicare drug price negotiation title would save the government money, and Manchin supports the drug pricing reforms. Some Republicans also support drug-price and -cost controls; in 2019, a few Republicans voted for making drug companies pay back Medicare when drug prices rise faster than inflation.

Government negotiation of drug prices is a tough sell to the GOP, but the Medicare price negotiation measure was significantly scaled back from earlier versions; the original goal of Democrats’ Medicare negotiation proposal was to control launch prices, but the House BBB bill would delay negotiation until several years after product launches.

Also, most of the voting public wants Congress to control drug costs, and 2022 is an election year, so the dynamics that typically thwart legislation as elections near might help the prospects of drug pricing legislation even if the broader social spending bill stalls.

It’s not clear whether Democrats would continue to use the budget reconciliation process, which avoids the 60-vote margin needed to override the filibuster, or attempt stand-alone legislation to control drug costs.

Manchin made his announcement before the Senate parliamentarian determined whether budget rules allow drug cost controls in the commercial market.

It’s also not clear whether the deal that Democrats struck among themselves on the drug pricing title would hold if Build Back Better dies. If Democrats try to get Republicans on board, or if they merely start over, reforms to the rebates and pharmacy fees that pharmacy benefit managers negotiate could be added to the legislation, even though the repeal of the Trump-era ban on rebates accounted for a big chunk of savings from the current drug pricing title.

On Sunday, Democrats were fuming over Manchin’s announcement and hadn’t begun discussing a possible path forward on drug pricing and other health care measures.

House progressives agreed to pass the infrastructure bill separate from Build Back Better based on a promise from the president that he would broker a deal with Manchin. Moderates voted on policies that leave them exposed to attacks in next year’s elections based on the House speaker’s promise that they would only vote on measures that could pass the Senate.

White House Press Secretary Jen Psaki said the president wants to keep negotiating with Manchin, but she also accused him of bad faith, which does not bode well for future negotiations.

“If his comments on FOX and written statement indicate an end to that effort, they represent a sudden and inexplicable reversal in his position, and a breach of his commitments to the President and the Senator’s colleagues in the House and Senate,” Psaki said.

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Federal Budget   
12/19/21 6:55 PM EDT   
     
Major Health Reforms In Limbo After Manchin Pulls Plug On BBB
Inside Health Policy

After half a year of negotiating, Sen. Joe Manchin pulled the plug on the president’s signature Build Back Better bill, casting uncertainty over the bill’s health reforms, including Medicare drug price negotiation, Medicare hearing benefits, closure of the Medicaid coverage gap and extension of the enhanced Affordable Care Act tax credits.

Democrats Limp to 2022 Fighting History, Biden’s Low Ratings
December 19, 2021 10:34 am

The indefinite delay of President Joe Biden’s signature domestic policy bill has derailed the Democrats’ strategy to stave off a Republican onslaught in the 2022 congressional elections and the party may be left without a fallback option.

Democratic leaders in the Senate had announced that a vote previously expected before Christmas would be punted into next year, a decision some strategists fear could prove fatal to the legislation’s prospects. Then on Sunday, Senator Joe Manchin effectively torpedoed the Build Back Better plan, saying he simply could not support the package as it stands — further clouding plans to campaign on its passage.

“I just can’t,” he told Fox News. “I’ve tried everything humanly possible. I can’t get there.”

Even if it is somehow signed into law in the new year, the delay leaves less time for party groups and candidates to get the word out about what it does, a cornerstone of the Democrats’ plan as polls show voters aren’t sure what is in the bill and don’t think that it will help them directly.

Democratic strategist Dave Heller said that the party must pass at least a slimmed-down version of Build Back Better to remain competitive, preferably one with easy-to-explain benefits like a cap on the cost of insulin or the expansion of pre-kindergarten programs.

“We have to run on something,” he said. “We can’t have complete control for two years and say our biggest accomplishment was an infrastructure bill.”

Extra Urgency

The debate is taking on extra urgency with Democrats facing an uphill battle to defend their House and Senate majorities next year.

Republicans are poised to seize on inflation, the persistent coronavirus pandemic and Biden’s foreign policy missteps — all of which have dragged down his numbers. Twenty House Democrats have announced they won’t seek re-election, leaving open seats, while key states are drawing district maps that heavily favor the GOP and a natural advantage to the minority party in midterms.

To complicate matters, the Build Back Better bill is an omnibus of almost all of Biden’s domestic legislative agenda, which makes it harder to sell than a smaller, more straightforward policy measure. Also, some of the easier-to-explain ideas, like free community college or expanding Medicare to cover dental procedures, have been dropped because of concerns about costs from centrist Democrats.

Even previous victories are in perilous shape. Senate Democrats will now miss an end-of-the-year deadline to extend a child tax credit that has been paid out in monthly installments over the last year. Even though one study showed it cut the child poverty rate by 25% over the last year, in recent polls many Americans have said they aren’t sure whether they received the credit, think it only helped their family a little or don’t know which party is responsible for it.

Party strategists have long planned to spend the next year focusing on how the Build Back Better bill will help with family budgets.

Sharon Yang, a spokeswoman for Building Back Together, a Democratic group supporting the Biden agenda, said that as soon as the president signs a bill, they will double down on advertising and other efforts to promote it.

She remained optimistic that despite the delay, Democrats would come together on some version of the legislation next year, creating a contrast with Republicans who uniformly oppose it.

‘Tired and Frustrated’

“The president has been very clear that failure to pass the Build Back Better Act is not an option,” she said. “He’s acknowledged that time is needed to finalize negotiations, but continues to work tirelessly with leaders in Congress to ensure this bill gets passed as swiftly as possible, while Republican legislators refuse to lift a finger to help lower costs for working families.”

Democratic consultant Mike Ceraso said he wasn’t sure that trumpeting legislative accomplishments was going to be compelling enough, especially because so many Americans are “tired and frustrated” after two years of the pandemic and the recent rise in inflation.

“Republicans are in a much easier place to frame the discussion around the non-success stories — your milk is going up, your gas is going up and your dollar isn’t going as far,” he said.

With an eight-member edge in the House and a tie in the Senate even a slight shift in electoral fortunes could give Republicans control. In addition to Democrat retirements, Republican-led state legislatures have redrawn maps during the decennial congressional redistricting process, giving them a wide advantage over Democrats.

Recent polls have shown a narrow Republican advantage on the generic congressional ballot question, which asks voters which party they would support in an election.

National party chair Jaime Harrison has tried to energize Democrats in battleground states like Florida, Georgia and Pennsylvania, while state parties have held events in places like Milwaukee, where local leaders highlighted spending that would eventually repair some of the hundreds of bridges classified as structurally deficient, and Lorain, Ohio, where officials touted new funding for restoration efforts on Lake Erie.

Ads from the non-profit advocacy group Majority Forward running in Nevada and New Hampshire praise Democratic Senators Catherine Cortez Masto and Maggie Hassan, who are up for re-election, for voting for the infrastructure bill and supporting the still-under-negotiation plan, saying it would “lower costs.”

Build Back Better is a sprawling bill that proposes to do everything from extending the child tax credit to capping prescription drug costs, among other social initiatives. Yet its prospects are uncertain given that Democrats have to pass it without Republican votes and Manchin has made clear he will not support it in its current form.

“Just pass something so that we can start telling voters what’s in it instead of fighting about it,” Sean McElwee, director of the progressive think tank Data for Progress, said.

Chris Taylor, a spokesman for the Democratic Congressional Campaign Committee, said the party’s candidates would also be highlighting projects in their areas that are being fixed with money from the $1 trillion infrastructure bill.

But those messages could run up against voters’ concerns over inflation.

A December Monmouth University poll found that 15% of Americans said their biggest concern was paying everyday bills, while 14% said inflation specifically, with only Covid-19 ranking higher, at 18%. But pollsters pointed out that the jump in concern about inflation was most dramatic among Republicans, indicating that partisan polarization may be playing a role on the issue.

In a Reuters/Ipsos poll in early December, 60% of adults said the country is on the wrong track, while only 24% said it is on the right track.

Democrat consultant Scott Falmlen said Biden has about six months for conditions to improve. If kinks in the global supply chain are worked out, gas prices moderate and the coronavirus infection rate slows by next summer, he said Democrats should be in a stronger position going into the midterms.

“People want to have a real sense that we are overcoming this,” he said. “We need to see a light at the end of the tunnel and know it’s not another freight train headed our way.”

 

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Politics   
12/19/21 10:34 AM EDT   
     
Democrats Limp to 2022 Fighting History, Biden’s Low Ratings
Bloomberg

The indefinite delay of President Joe Biden’s signature domestic policy bill has derailed the Democrats’ strategy to stave off a Republican onslaught in the 2022 congressional elections and the party may be left without a fallback option.

HHS Promises To Provide 60-Days Notice Before Sunsetting PHE
December 17, 2021 8:24 pm

HHS won’t say how long it plans to extend the public health emergency declaration beyond mid-January, telling Inside Health Policyit will provide 60-days notice before letting the emergency and its related regulatory flexibilities lapse — making planning difficult for health care stakeholders navigating regulatory requirements and state Medicaid directors preparing to restart eligibility redeterminations paused during the pandemic.

However the guaranteed advance notice, meaning so far the PHE will last at least through mid-March, is relief to some providers who say it gives them a few more months to convince Congress to continue telehealth waivers post-PHE.

States receive a 6.2% bump in federal Medicaid matching funds (FMAP) if they keep Medicaid beneficiaries continuously enrolled throughout the public health emergency. States have one year after the PHE ends to resume reviewing Medicaid beneficiary eligibility, and the FMAP will expire at the end of the quarter that the PHE ends. Telehealth and other COVID-19 regulatory waivers also will expire with the PHE.

The Biden administration told states on Jan. 22 it would renew the public health emergency declaration through the end of 2021, then HHS Secretary Xavier Becerra last renewed the COVID-19 public health emergency for 90 days on Oct. 15.

“While we cannot forecast how long the SARS-COV-2 pandemic will continue to be a public health emergency, HHS remains committed to providing a 60-day notice to states before sunsetting related public health emergency declaration extensions,” an HHS spokesperson told Inside Health Policy in an email Thursday (Dec. 16).

The Congressional Budget Office predicted in July the PHE will last through July 2022, but the National Association of Medicaid Directors said this isn’t enough for some states to be able to plan.

“[W]hat the CBO assumes is not something that states can necessarily factor into their own budgeting assumptions, and the reasons for that is either states are required to operate that way under their own procedures or you don’t want to make an assumption that something will continue through a date and get that date wrong and expose the state to significant financial risk,” NAMD Director of Federal Policy Jack Rollins said.

State Medicaid directors appreciate the 60-day notice, but NAMD notes they need as much time as possible to prepare for the so-called unwinding of the public health emergency. States have to roll out information technology system updates, explain to beneficiaries about quickly changing eligibility rules and hire and train new staff. One state Medicaid director said about 40% of his staff have never done an eligibility redetermination before.

The uncertain path forward for the Build Back Better plan is another challenge for states. The House-passed version would decouple the continuous eligibility requirement from the PHE and phase out the 6.2% FMAP beginning March 31, 2022 instead of letting it expire at the end of the quarter the public health emergency ends.

While the reconciliation package provides the certainty Medicaid programs have pushed for, the timeline will be tight if Congress doesn’t pass the BBB plan until January or later, or not at all.

Meanwhile, the Medical Group Management Association was relieved to hear the administration will stick to its 60-day warning before letting the PHE expire.

“One of our concerns throughout the pandemic is that the ending of the PHE would cause a ‘telehealth cliff’ for many medical groups — we would like to avoid a situation where the rug is pulled from underneath practices that modified workflows and invested in the infrastructure to provide telehealth visits to patients,” MGMA Government Affairs Director Claire Ernst said in an email.

MGMA wants policymakers to permanently remove originating and geographic restrictions from the Medicare statute but also find ways to keep telehealth as a tool that does not disrupt patient care and maintains the patient-provider relationship.

“I am optimistic that 60 days is enough time to make these policies permanent — but that depends greatly on Congress’s ability to pass legislation to address these reforms,” Ernst added. “Telehealth reform is a bipartisan, bicameral issue — I hope that is enough to grease the wheels and get legislation passed quickly as to prevent a telehealth cliff.”

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Public Health   
12/17/21 8:24 PM EDT   
     
HHS Promises To Provide 60-Days Notice Before Sunsetting PHE
Inside Health Policy

HHS won’t say how long it plans to extend the public health emergency declaration beyond mid-January. It will provide 60-days notice before letting the emergency and its related regulatory flexibilities lapse.

Telehealth Lobby Focuses On Axing Geographic, Originating Site Limits
December 17, 2021 3:06 pm

Telehealth stakeholders are “1,000% in agreement” that removing geographical and originating site restrictions top off their legislative goals for 2022, according to Kyle Zebley, American Telemedicine Association’s public policy vice president who moderated the lobby group’s policy meeting Thursday (Dec. 16). These restrictions have been waived under the COVID-19 pandemic through Jan. 16, and making that waiver permanent would increase access to care, especially for lower-income and disadvantaged communities, Zebley told Inside Health Policy.

The geographical restriction requires that the telehealth location be within a defined rural area and the originating site restriction requires that the visit occur within the four walls of a Medicare-approved site, which requires the patient to physically appear for the visit to be reimbursed.

The ATA also is working to make permanent the telehealth reimbursements currently allowed for Federally Qualified Health Centers, which provide primary and dental care in urban and rural areas, and rural health centers, which provide primary care in rural areas. There are approximately 8,400 FQHCs and 4,400 rural health centers in the United States, according to CMS, and telehealth reimbursement at these facilities is set to expire Jan. 16, 2022.

A third major policy push for ATA is repealing the in-person requirement for tele-mental health visits, which requires the patient be seen in-person within six months prior to their first visit and once a year thereafter. The in-person requirement is set to kick in Jan. 17, although even then it could be waived if the physician writes a note that an in-person visit would be detrimental to the patient.

First-dollar coverage for telehealth visits under high-deductible health plans is also high on ATA’s legislative agenda, as Health Savings Account plans will not be able to cover telehealth 100% after Dec. 31. Beginning Jan. 1, HSA plans will have to charge for telehealth visits and apply the fees to the deductible or the participants will not be able to contribute to an HSA.

ATA continues to lobby for these changes, which are included in stand-alone bills on Capitol Hill. But Zebley says attaching the reforms to a larger piece of legislation, such as a federal spending bill in February, is an option. He told IHP he “would love to see it happen in quarter one” of 2022.

The ATA also announced it is adding a new governmental relations group to its roster of special interest groups.

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Telehealth   
12/17/21 3:06 PM EDT   
     
Telehealth Lobby Focuses On Axing Geographic, Originating Site Limits
Inside Health Policy

Telehealth stakeholders are “1,000% in agreement” that removing geographical and originating site restrictions top off their legislative goals for 2022.

Health Spending Growth More Than Doubled in First Year of Pandemic
December 15, 2021 4:01 pm

The rate of growth in U.S. health care spending more than doubled in the first year of the Covid-19 pandemic, leaving the medical system accounting for just less than a fifth of the U.S. economy at the end of 2020, according to a federal report released Wednesday.

Spending on health care rose 9.7 percent last year, up from 4.3 percent increase in 2019 — the fastest year-over-year jump since 2002, according to the Centers for Medicare and Medicaid Services’ office of the actuary. Nearly the entire increase came from the burst of federal spending as the government mobilized to contain the spread of the virus.

The surge came while the overall economy contracted by 2.2 percent, the government researchers wrote in the journal Health Affairs. Federal spending in categories like assistance to health care providers, public health programs and Medicaid payments jumped 36 percent last year, accounting for nearly all of that increase.

“The substantial growth in health care spending was … driven by the unprecedented government response to the global pandemic,” Micah Hartman, a statistician in the actuary’s office, said in a statement.

Key highlights: Federal programs such as the Provider Relief Fund and Paycheck Protection Program, which were designed to help compensate health care providers for lost revenue and increased costs due to the pandemic, made up much of the increased spending.

Outlays on public health and growing federal Medicaid payments also played a role. Medicaid spending increased by 9.2 percent.

Coverage changes: Pandemic-induced job cuts resulted in 2.3 million fewer people covered at work. Meanwhile, 3.7 million people signed up for Medicaid, while another 600,000 enrolled in Obamacare markets. The 5.1 percent growth in Medicaid enrollment was the biggest rise since 2015.

Overall, the U.S. uninsured population shrank from 31.8 million in 2019 to 31.2 million in 2020.

How insurers spent 2020: The pandemic reduced the number of office visits and elective procedures. As a result, private health plans spent 3.5 percent less than in 2019 on medical goods and services. The health plans still accounted for more than a quarter of total U.S. health spending.

Medicare spending grew at a slower pace last year, at 3.5 percent compared with 6.9 percent in 2019. Traditional Medicare fee-for-service accounted for 55 percent of the program’s spending last year, a drop from 61 percent in 2019 — the first such decline since 1999.

Meanwhile, more people enrolled in Medicaid last year, prompting program spending to increase by 9.2 percent last year and accounting for 16 percent of the country’s total health spending.

Medicaid hospital spending increased 6.7 percent last year, driven in part by the larger enrollment and increased Medicaid supplemental payments to hospitals and mental health facilities, among other spending.

Out-of-pocket costs: Out-of-pocket spending dropped by 3.7 percent last year — the first since the 2009 financial crisis — as people used less health care. The drop was also caused by the little to no cost-sharing requirements for Covid-19 testing and treatment last year.

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News   
12/15/21 4:01 PM EDT   
     
Health Spending Growth More Than Doubled in First Year of Pandemic
PoliticoPro

The rate of growth in U.S. health care spending more than doubled in the first year of the Covid-19 pandemic, leaving the medical system accounting for just less than a fifth of the U.S. economy at the end of 2020, according to a federal report released Wednesday.

Democrats Face Time Crunch as They Race to Finalize Biden Plan
December 13, 2021 6:01 am

Democrats are hitting a make-or-break week in their ambitious effort to pass President Biden‘s climate and social spending bill by Christmas. 

Democrats have just 10 days to meet their self-imposed deadline and face growing headaches that could prevent them from meeting their goal. New concerns about record inflation, procedural steps that have to be completed before they can take the bill to the Senate floor and ongoing negotiations even after months of talks are among the obstacles.

“If I get out of here by the evening of the 24th I’ll be very happy,” said Sen. Tim Kaine (D-Va.) about the upcoming holiday slog. 

In a sign of progress, Democrats last week released text from five of the 12 committees tasked with writing pieces of the roughly $2 trillion bill and incomplete draft language from the Senate Finance Committee, which oversees broad swaths of the legislation

And they are hoping to ramp up formal talks this week with the Senate parliamentarian, who offers guidance on if key pieces Democratic policy goals comply with the strict rules on what can be included in the spending bill.

“We anticipate that the bipartisan ‘Byrd bath’ — where both sides get together and make their case to the parliamentarian and argue back and forth — we expect those to start next week,” said Senate Majority Leader Charles Schumer (D-N.Y.).

Republicans say they are still waiting to receive pieces of the bill text, which they need for their own meetings with Parliamentarian Elizabeth MacDonough, from Democrats. Once both sides meet one-on-one, they then have a formal meeting with MacDonough together, where they both make their cases on why the bill does, or doesn’t, comply with the Senate’s budget rules, which Democrats are using to bypass the 60-vote legislative filibuster.

“We don’t even have language on some of it yet. You’ve got scoring issues. They’re trying to substantively change it,” said Sen. John Thune (S.D.), the No. 2 Republican senator. 

Democrats need sign off from MacDonough before they bring the bill to the floor, making the talks with the Senate referee a major hurdle. Democrats had hoped to have them wrapped up by this week, but the talks appear to be running behind.

Sen. Jon Tester (D-Mont.) said that he was feeling optimistic about the timeline “if things are on schedule” with the parliamentarian. 

“That could hold us up, there’s no doubt about that,” he added.

Democrats have scrambled for weeks to try to make space to make a run at the bill before the end of the year. They entered December with a lengthy to-do list and have already checked off two items: funding the government and approving a one-time exemption to the debt ceiling.

They are expected to spend this week completing two other items: raising the debt ceiling and passing a sweeping defense policy bill. That will position Democrats by the end of the week to have a clear floor schedule to try to pass the Build Back Better Act by Christmas.

Democrats have both political and policy reasons to want to get the bill done this year. They are loath to kick the can to 2022, a midterm election year where typically little significant legislation gets accomplished. And the longer the bill stays in limbo, the longer Republicans can target it and key Democrats, whose support will be needed to get it to Biden’s desk.

Democrats are also barreling toward a cliff on the child tax credit, which is set to expire at the end of the year. Aides warn that they need to pass the Build Back Better legislation, or a short-term extension, by Dec. 28, or January payments could be disrupted.

“You need to pass Build Back Better that continues the program by Dec. 28. … That’s what I’m working on. That is my focus,” said Senate Finance Committee Chairman Ron Wyden (D-Ore.).But Democrats are still locked in a flurry of behind-the-scenes negotiations, raising questions about how quickly they’ll be able to finalize a bill and lock in all 50 Democratic votes.

Neither Sens. Joe Manchin (D-W.Va.) nor Kyrsten Sinema (D-Ariz.) have said yet that they support the bill, and both have privately predicted it won’t be ready to pass by Christmas. 

Democrats have made changes to the bill to try to win over Manchin, including dropping a program meant to incentivize the transition to clean energy. Other portions of the bill, including a paid leave program, could also fall amid opposition from Manchin.

Manchin, in particular, has been up front about his concerns, including warning against rushing the bill and questioning the potential impact on inflation. Democrats and the White House have tried to assuage him by arguing that the bill won’t negatively impact inflation.

“We’ve got to make sure we get this right. We can’t afford to continue to flood the market as we’ve done,” Manchin said at an event last week.

Wyden acknowledged that the pieces of text released by the Finance Committee don’t yet have Manchin’s buy-in but said he’s in constant contact with his conservative colleague. Wyden also still needs to get his chunk of the spending bill cleared by the Senate parliamentarian.

“Sen. Manchin and I talk essentially every day. He and I, we talk about energy, we talk about taxes. We talk about all kinds of things,” Wyden said.

Biden is expected to meet with Manchin this week. Biden told reporters on Friday that he wasn’t sure he would be able to convince Manchin to support passing Build Back Better given the inflation data.

“I don’t know the answer to that. I’m going to be talking to him at the beginning of the week,” Biden said.

Despite the hurdles, Schumer is sticking by the Dec. 25 deadline as he tries to keep the pressure on his own caucus.

“We remain on schedule to bring this bill to the floor of the Senate before Dec. 25,” Schumer said.

Republicans are predicting that Democrats ultimately will be forced to punt the bill until at least January and that the Senate will leave town by the end of this week.

“There is no way they are going to be ready to vote on their bill,” Thune said. “The sooner, I think, they come to that realization the better it will be for everybody. … They probably need to nip that fairly soon because it’s just not going to practically happen.”

But Democrats insist they are making progress behind closed doors.

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Federal Budget   
12/13/21 6:01 AM EDT   
     
Democrats Face Time Crunch as They Race to Finalize Biden Plan
The Hill

Democrats are hitting a make-or-break week in their ambitious effort to pass President Biden’s climate and social spending bill by Christmas.

Senate BBB Draft Scraps Medicaid DSH Cuts, Nursing Home Staff Requirements
December 12, 2021 3:05 pm

The Senate Finance Committee on Saturday (Dec. 11) unveiled a tweaked version of the Build Back Better plan that eliminates the House proposal to cut Medicaid Disproportionate Share Hospital payments in non-Medicaid expansion states and the House provision that would require minimum nursing home staffing, addressing concerns by hospitals and nursing homes.

The Finance Committee’s draft version also would create an $800 million grant to support improved staffing in certain long-term care facilities.

While House and Senate Democrats’ reached a reconciliation deal to close the Medicaid gap in states that haven’t expanded the program, hospitals criticized a House provision[/node/125209] to cut Medicaid DSH pay and uncompensated care pools in states where those in the Medicaid gap could get coverage through the marketplace under the gap fix policy.

And nursing homes criticized the House bill’s nursing home staff requirements. The American Health Care Association asked Congress on Nov. 19 to remove the House BBB provisions that require nursing homes have a minimum staffing ratio and registered nurses available 24 hours a day. The Senate draft unveiled Saturday does not include this requirement, but it keeps the $50 million allocation for HHS to study within three years, and every five years after that, the appropriate minimum staffing ratios for nursing homes.

However, Medicare beneficiary advocates have been pushing to keep the minimum staffing requirements, arguing quality of care and outcomes improve with better staffing.

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Medicaid   
12/12/21 3:05 PM EDT   
     
Senate BBB Draft Scraps Medicaid DSH Cuts, Nursing Home Staff Requirements
Bloomberg

The Senate Finance Committee on Saturday (Dec. 11) unveiled a tweaked version of the Build Back Better plan that eliminates the House proposal to cut Medicaid Disproportionate Share Hospital payments in non-Medicaid expansion states.

As Surprise Billing Ban Nears, Doctors and Hospitals Scramble to Delay Federal Law
December 11, 2021 11:17 am

Nearly 1 in 5  hospital visits result in patients getting the unwelcome surprise of an unexpectedly large bill because doctors or other providers weren’t part of their insurer’s network.

To protect consumers, Congress passed the bipartisan No Surprises Act last December. But doctors and hospital groups are trying to delay its Jan. 1 rollout over a narrow but crucial portion they contend unfairly favors insurers.

On Thursday, the American Medical Association, American Hospital Association and individual hospitals and doctors sued the federal government to halt federal regulators’ proposed arbitration rules that would effectively end the most common forms of surprise billing.

The proposed rule unveiled by the Department of Health and Human Services and other federal agencies would give providers and insurers 30 days to hash out disagreements over payments or submit to binding arbitration to settle disputes. The lawsuit said regulators misinterpreted the law and proposed an “unfair and unlawful” arbitration system that starts with benchmark rates already negotiated by health insurers – the median, in-network rate for similar medical services.

The lawsuit contends insurers will rely on the arbitration rules to get an “unfairly low rate” and will have little incentive to include higher-cost providers in their network, “all to the detriment of patients.”

“Our legal challenge urges regulators to ensure there is a fair and meaningful process to resolve disputes between health care providers and insurance companies,” said AMA President Gerald E. Harmon.

The lawsuit follows a flurry of public comments submitted by this week’s deadline from both proponents and detractors of the proposed rules.

Also this week, a jury in Nevada decided UnitedHealthcare must pay affiliates of the emergency medicine staffing company TeamHealth $60 million in damages over the insurer’s payment practices.

CEO Leif Murphy said the jury’s decision “helped stop the bleeding in the middle of a pandemic” for TeamHealth, which supplies physicians for 12% of the nation’s hospital emergency rooms.

Murphy said his company filed several lawsuits against insurers across the country for payment disputes before Congress passed the surprise billing legislation. He said the cost of staffing doctors to take care of patients when they are in the emergency room or admitted to hospitals is becoming increasingly difficult to cover because of insurers’ attempts to lower reimbursement. He worries that the new federal law could “shift the balance of power” to large insurers and embolden them to terminate higher-priced contracts to reduce the median price for services  – which is the proposed starting point for arbitration.

“We’re dealing with extremely high stress levels, lots of uncertainty on the front line, anticipation of COVID surge at any point,” Murphy said. “And then you say we are not going to acknowledge the value of the service provided and we’re going to cut pay? It’s not a good situation.”

A UnitedHealthcare spokesperson said the insurer will appeal the Nevada case “in order to protect our customers and members from private equity-backed physician staffing companies who demand egregious and anticompetitive rates for their services and drive up the cost of care for everyone.”

‘No one should have to worry about going bankrupt’

In November, an HHS report found 18% of emergency room visits by Americans with employer health insurance resulted in out-of-network charges. Patients having operations or giving birth at in-network hospitals had similar rates of out-of-network charges.

These unexpected charges averaged more than $1,200 from anesthesiologists and $2,600 from surgical assistants, according to the report.

“No one should have to worry about going bankrupt after falling ill or seeking critical care,” HHS Secretary Xavier Becerra said of the report.

The federal legislation has gained broad support among consumers, employers and insurers seeking to slow the growing cost of health care.

America’s Health Insurance Plans, the trade association for private insurers, said millions of consumers each year face financial hardship after getting medical bills from out-of-network providers.

The Biden administration’s rules to implement the law “are a critical step toward ensuring that … surprise medial bills are a relic of our past,” the trade association said in a statement.

The Congressional Budget Office estimated cost savings from lower medical bills would cut private insurance premiums 0.5 to 1% and would reduce federal deficits from savings for both employer plans and taxpayer-subsidized Affordable Care Act plans.

“Surprise billing has been a problem for decades,” said Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy. “It has become more of a problem and more pronounced in the last decade or so.”

The problem has worsened, Adler said, as private equity firms have acquired medical specialties such as anesthesiologists or emergency medicine staffing companies.

Hospitals often need coverage from these specialists whether or not they sign contracts with major private insurers. In cases where these specialists refuse to sign contract with insurers, they set their own rates. In some cases, consumers get billed for balances the insurer does not cover.

Even if consumers take the extra step of verifying a hospital or other medical facility is an in-network provider for their insurance plan, they often have no control over whether doctors and other providers at in-network hospitals are part of their insurer’s network.

“The negotiating scales have been tilted in favor of doctors in this subset of specialties like emergency medicine and anesthesiology,” Adler said.

Others say the federal law will bring long-overdue protections to patients.

“We have seen firsthand the devastating financial and emotional impact that happens to patients when they receive surprise medical bills,” said Nancy Brown, CEO of the American Heart Association.

Brown said consumers are especially vulnerable to such billing excesses during emergencies.

“They have a heart attack. They have a stroke. They have a sudden cardiac arrest,” Brown said. “At a moment like that (when) there’s often no one around you, and if there is, the first thing on peoples’ minds isn’t to say, ‘Are all of these providers in this patient’s health insurance network?”

But critics of the arbitration rules say insurers will have the upper hand and will force doctors to accept lower rates. The American Society of Anesthesiologists said the rules are a “powerful mechanism for large health insurance companies to avoid negotiating on contracts and, ultimately, to extract financial concessions from local community physician practices.”

The American Medical Association lawsuit said a North Carolina insurer already sent letters to some doctors demanding payment cuts, citing the new federal rules. If those doctors don’t cut their rates, the insurer will terminate their contracts and leave patients with fewer options, the lawsuit states.

Staffing companies such as TeamHealth believe insurers will only accelerate contract terminations if the arbitration rules take effect Jan. 1.

“The outcome of that shifts the balance and does start to threaten our ability to staff,” Murphy said.

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Surprise Billing   
12/11/21 11:17 AM EDT   
     
As Surprise Billing Ban Nears, Doctors and Hospitals Scramble to Delay Federal Law
USA Today

Congress passed the bipartisan No Surprises Act last December. But doctors and hospital groups are trying to delay its Jan. 1 rollout over a narrow but crucial portion they contend unfairly favors insurers.

Medicare Advisers Might Push Hospital Pay Hike For 2023
December 10, 2021 8:10 pm

MedPAC commissioners on Thursday (Dec. 9) signaled support for increasing hospital and dialysis center funding in 2023, but they also favored eliminating pay bumps for primary care physicians, ambulatory surgical centers and hospice care facilities.

In their draft recommendations, commissioners also endorsed requiring the introduction of a claims modifier to delineate between audiovisual and audio-only telehealth services for PCPs, and to require hospice providers report telehealth services — both audio and audiovisual.

The COVID-19 public health emergency disrupted data collection and many of the presenters chose instead to use data from 2019. Others relied on 2020 or 2021 data with a noted caveat that the numbers varied widely from normal trends.

The commission will vote on updated recommendations at their January 2022 meeting.

Some MedPAC commissioners on Thursday raised concerns with the instability of the health care landscape, due in part to the pandemic and various Medicare pay policies that could be in flux, such as sequestration cuts, as they discussed pay rates for 2023.

Chair Michael Chernew acknowledged those concerns, and said that was part of the reason the draft recommendation under consideration would give hospitals the full pay bump currently called for under the law. The commissioners had previously suggested using pay bumps for hospitals as part of a value-incentive program.

The draft recommendation says that for fiscal 2023, Congress should update the 2022 Medicare base pay rates for acute care hospitals by the amount determined under current law.

For 2023, that is currently estimated to be 2% for both the inpatient and outpatient hospital payment systems.

But commissioners agreed with a recommendation to freeze pay for physicians and primary care providers for the 2022 calendar year. They also supported a proposal to use a claims modifier that would help differentiate between audio-only and audio-visual telehealth services.

While current law calls for no change to base payment rate, there is room for positive or negative adjustment under a merit-based payment system. The opportunity for a 5% bonus is also available for physicians and other healthcare providers in advanced alternative payment models.

The commissioners recommended no changes, but several, including Lynn Barr and Jaewon Ryu, voiced concerns that “seriously underpaying” workers has caused regional worker shortages, leading to extensive wait periods for beneficiaries seeking to change their primary care provider.

Amol Navanthe shared that his hesitancy around the pay freeze stemmed from his concern about ensuring access to care, particularly for racial and socioeconomic groups that are disproportionately affected by longer wait times for primary care providers — specifically, Black beneficiaries and other beneficiaries of color.

Dana Safran argued that adding a MIPS qualifier as an incentive was like “adding insult to injury” to overpaid and underworked healthcare providers.

The addition of a claims modifier that differentiated between audio-only and audiovisual telehealth meetings was, unlike the first recommendation, quite popular among the commissioners.

Commissioners also favored rescinding a 2% pay bump for ambulatory surgical centers, though the topic was one of the most contentious subjects of Thursday afternoon’s deliberations. The second recommendation — that the secretary require ASCs to report cost data — proved less controversial.

While in 2020 ASCs served nearly 3 million beneficiaries, many of the commissioners raised an issue with the amount of money being poured into ASCs, particularly as a means of building their popularity. Many found the excess of available capital to be wasteful — though exactly how wasteful remains rather unclear, as ASCs are not currently required to report their cost data like hospitals and other care facilities. Dana Safran felt strongly about the excess.

“Is getting more of what you don’t need really a bargain?” Safran asked.

Others were highly concerned with the interaction between Medicare Advantage and ASCs; Brian DeBusk argued that the consequences of underutilizing and overfunding ASCs are factored into the Medicare Advantage benchmark, and it drives up the price of fee-for-service care as well. Several commissioners pointed out that introducing site neutrality might be a solution to this problem, but it wouldn’t solve the overfunding issue.

There was unanimous agreement that ASCs should be required to report their cost data, an agreement that was heightened by the contention over the first recommendation. David Grabowski said that it would be incredibly difficult to know the true value of ASCs — and thus make any positive recommendations — without a firm knowledge of their cost data.

He wasn’t alone, either. Marge Ginsburg summed up the sentiments of the session in one fell swoop.

“I am constantly annoyed by the lack of cost reports,” Ginsburg said, “and I wonder if there’s a point at which we cut ‘em off at the knees, if I may be dramatic.”

Commissioners favored updating the 2022 Medicare end stage renal disease prospective pay system, which is meant to counter rising costs and the conclusion of the sequester in the new year.

As in other sectors, it was exceedingly difficult to determine quality of care during the public health emergency. Dialysis outpatient recipient mortality rates did increase — notably, according to the session’s presenter Nancy Ray, though she did not share a specific number — and emergency room visits and transplants were down for similar reasons. The percent of fee-for-service beneficiaries remains high, however, and the net number of facilities increased by 105.

Brian DeBusk noted the importance of increasing the funding for infrastructure that supports some of the nation’s most high-need individuals, despite — or perhaps because of — their high mortality rate. Pat Wang strongly agreed. She said increased funding was certainly necessary, but she also strongly advised pushing for preventative Medicaid care early in the lives of patient groups that are most at risk of developing renal failure and kidney cancer.

“When you look at the profile of these beneficiaries, they are disproportionately younger, male and Black,” Wang said. “If there is anything that we should take away from this, it’s the importance of supporting Medicaid programs in states because this is when it starts. There’s a lot that can be done with continuous coverage and good care to try to alter the course of that disease progression.”

The commission elected to support the proposal to update the 2022 base pay rate for hospice care — and to lower the aggregate cap by 20% — on the grounds that high margins and poor quality of care, coupled with high turnover and staff shortages, indicate that pure capital is not the answer. They also supported a recommendation to require hospices to report their telehealth usage on Medicare claims.

Many of the commissioners voiced their concern with measuring staff safety, beneficiary safety and well-being, and overall adequate work and living quality in hospice facilities nationwide, particularly during the pandemic.

While margins for hospice care remained at around 17% for 2020, many commissioners voiced concern about the ongoing staffing crisis, which has also caused concerns in hospitals and other care facilities. Kim Neuman noted that of the 16% of those beneficiaries eligible for hospice, 43% used it.

Most agreed upon was the argument that the current method of data measurement is outdated and must rapidly be updated in order to begin properly assessing the needs of the field, which presenters said CMS is currently working on.

Lowering the 2022 Medicare base rate by 5% and requiring home health agencies to report telehealth data within 30 days were the two proposals for home health policy and pay changes. The commissioners supported both recommendations — some enthusiastically.

Many of the commissioners felt that home health was the area most riddled with health equity issues. Some, most prominently Larry Casalino, indicated that coding for turnover as a part of measuring quality of care should play a critical role in the new recommendations. The addition would help drive employers to redistribute the margins back into the hands of the employees — they’d risk financial penalties otherwise.

Casalino said he found it outrageous that profit margins for the industry remain so high — averaging 20.2% for 2020 — while the industry turnover remains so high as well.

“This is a sector where profits are high, and employee turnover is high, so where’s all that margin going? Pay is not the only reason that implies turnover, but it’s certainly a big one,” Casalino said. “It’s outrageous that there are places that have 20% margins and 300% turnover because the money’s all being sucked up to the top and it’s not going to the people who work there — not to their salaries, not for their working conditions, and so on and so forth.”

The commissioners also endorsed reducing the base rate for inpatient rehab facility payments by 5%.

Although beneficiaries spent approximately $8 billion on fee-for-service IRF care in 2020, the number of IRF facilities declined by 3.4% in 2020. Additionally, IRFs retain a generous access to capital; the all-payer total margin for freestanding IRFs for 2020 fell at 10.2%, and IRFs functioning as an extension of hospitals also fared well.

The recommendation was quite popular, but according to Casalino, the exact same proposal was approved by the Commission the previous year, with little change documented after implementing the recommendation.

Many of the commissioners asked for more information on the extent to which IRFs functioned as a safety valve during the highest-traffic moments of the pandemic, but the information was not readily available.

The commissioners agreed with a proposal to increase the 2022 base payment rate for long-term care housing by the market basket minus the applicable productivity adjustment.

LTCH pricing per case hovered at around $45,000 in 2020. Site-neutral payment has proven to help ease pay inequities for LTCH facilities, but with around 78,000 total Medicare cases in 2020, the proposed increase was universally popular among the commissioners.

>
Medicare   
12/10/21 8:10 PM EDT   
     
Medicare Advisers Might Push Hospital Pay Hike For 2023
Inside Health Policy

MedPAC commissioners on Thursday (Dec. 9) signaled support for increasing hospital and dialysis center funding in 2023, but they also favored eliminating pay bumps for primary care physicians, ambulatory surgical centers and hospice care facilities.

Medicare Panel Mulls Recommending Nursing Home Payment Cut
December 10, 2021 4:59 pm

A congressional advisory panel on Friday moved to recommend that Medicare payments for nursing homes, home health agencies and inpatient rehabilitation facilities be cut by 5% in 2023, citing adequate reimbursement rates for the facilities.

Only long-term care hospitals would see a payment increase in 2023 under the draft recommendations adopted by the Medicare Payment Advisory Commission on the final day of its December meeting. The panel’s draft recommendation calls for 2% increase in the Medicare base payment rate for long-term hospitals, minus an applicable productivity adjustment.

MedPAC provides lawmakers with analysis and policy advice on the taxpayer-funded Medicare program. Its recommendations are nonbinding, but Congress utilizes commissioners’ expertise when making funding decisions.

Each year, the commission advises Congress about how to update payment rates for health providers that treat Medicare beneficiaries.

Final commission recommendations will be voted on in January 2022. All final recommendations for 2023 will be included in the commission’s March 2022 report to Congress on Medicare payment policy.

A second draft recommendation for home health agencies would require them to report services delivered via telehealth on their Medicare claims submissions.

>
Nursing Homes   
12/10/21 4:59 PM EDT   
     
Medicare Panel Mulls Recommending Nursing Home Payment Cut
Bloomberg

A congressional advisory panel on Friday moved to recommend that Medicare payments for nursing homes, home health agencies and inpatient rehabilitation facilities be cut by 5% in 2023, citing adequate reimbursement rates for the facilities.

Covid Crisis Threatens Holiday Season as U.S. Hospitals Overflow
December 10, 2021 9:51 am

After months of warnings that vaccinations would ward off a Covid-19 disaster, the U.S. is sailing toward a holiday crisis.

Cases and hospital admissions are rising amid a season of family gatherings. Most victims have shunned inoculations. The situation is especially dire in the chilly Northeastern states, but doctors in many places report a grimly repetitive cycle of admission, intensive care and death. There are shortages of beds and staff to care for the suffering.

“We’re in desperate shape,” said Brian Weis, chief medical officer at Northwest Texas Healthcare System in Amarillo, the state’s worst hot spot.

In 12 states and the nation’s capital, the seven-day average of admissions with confirmed Covid-19 has climbed at least 50% from two weeks earlier, according to U.S. Department of Health and Human Services data. The areas with the largest percentage upticks were Connecticut, New Jersey, Washington, D.C., Vermont and Rhode Island.

A little more than 60% of the U.S. population is considered fully vaccinated, generally meaning two shots, according to U.S. Centers for Disease Control and Prevention data. That still leaves a large pool of highly susceptible people capable of pressuring hospitals.

In the most recent CDC data, from September, unvaccinated people had about 14 times the risk of dying from Covid-19 after adjusting for age — a major factor in Covid outcomes.

In some states in the Midwest and Northeast, Covid hospitalizations are mirroring last year’s seasonal pattern, said Pinar Karaca-Mandic, one of the leaders of the Covid-19 Hospitalization Tracking Project at the University of Minnesota.

“The winter coming, people are being more indoors,” she said. During last year’s surge, “everyone was unvaccinated,” Karaca-Mandic said. While most Americans are inoculated now, they’re also isolating less than last year.

Shots All Around

Officials continue to push shots. In Boston, Mayor Michelle Wu sent out news of getting her own booster at City Hall on Thursday. The city is adding vaccination clinics, including at schools, and colleges around the region have begun to let students know boosters will be required. New Hampshire will hold a “Booster Blitz” Friday at sites across the state.

But Karaca-Mandic said the wild card is the new variant: “We just don’t know what will happen with omicron.”

As the world has turned its focus to the strain, which spreads fast but may be no more deadly, cases caused by the delta variant have continued to mount in the U.S. The waves emerged and recede at different times in different regions, and recent hot spots such as Montana and Colorado are now seeing improvement.

Still, Colorado had just 518 acute-care beds available Thursday, said Scott Bookman, the state’s Covid incident commander. “We have a long way to go before our hospitals empty out,” he said in a news briefing.

Even in places coping well, a sense of foreboding prevails. California has seen relatively steady infection rates in recent weeks, with hospitalizations around the levels they were in July, before delta took hold. But the most populous state had 11 confirmed omicron cases as of Wednesday, which “presumes we’ll see dozens more in the next days, hundreds more in the next weeks, thousands more” after that, Governor Gavin Newsom said on ABC television.

In Amarillo, elective surgeries have been canceled and emergency rooms are jammed with virus patients who must wait as long as five days for a hospital bed, Weis said in a phone interview. Regional hospital officials have petitioned the state for additional staff “but there’s little hope they can come through,” he said.

In Connecticut, which has one of the highest vaccination rates in the U.S., 576 people were hospitalized with Covid-19 as of Dec. 8; of these, 77% were not vaccinated, state data show.

New Jersey’s average daily hospital admissions reached a seven-day average of 206, up 78% from two weeks earlier. Even so, at this time a year ago, the pace of admissions was well over twice as fast.

“The overwhelming majority of our new cases, new hospitalizations and new deaths, sadly, are from among the unvaccinated,” Governor Phil Murphy said during a Dec. 8 briefing.

Geisinger Health System, which has nine hospitals in northeastern and central Pennsylvania, is over capacity and turning away patients, said Gerald Maloney, chief medical officer for hospital services.

“People are tired,” Maloney said in an interview. “It’s worse already than it was a year ago, and it may get even worse.”

In New York, Governor Kathy Hochul ordered more than 30 hospitals that were filling up with patients to halt some procedures. Mayor Bill de Blasio said that was a grim harbinger for New York City.

“Biggest city in America, densely populated, we cannot let that happen here,” he said.

Worn Out

In Michigan, hospitals are hitting a critical point. The state’s 22,883 inpatient beds are more than 85% occupied, said John Karasinski, spokesman for the Michigan Health and Hospital Association.

“The situation is dire and compounded by several factors,” Karasinski said in a phone interview. “The Covid-19 surge is stressing hospitals, their workforce and capacity. There are ongoing staffing shortages. It existed before the pandemic and has gotten worse during the pandemic.”

The Department of Defense sent three teams of 22 medical professionals to help, each in a different part of the state.

Illinois had 3,178 Covid-hospitalizations as of Wednesday, the highest since January, according to the state health department. Six of the state’s 11 regions had 20 or fewer intensive-care beds available.

Thanksgiving weekend is a likely driver of the rebound, said Arien Herrmann, hospital coordinating-center manager for the state’s southernmost counties.

“People traveling, visiting friends and family, having gatherings created an opportunity for community spread,” Herrmann said in a telephone interview. “It’ll be the same thing going into Christmas and then New Year’s. This is keeping me up at night.”

>
COVID   
12/10/21 9:51 AM EDT   
     
Covid Crisis Threatens Holiday Season as U.S. Hospitals Overflow
Bloomberg

After months of warnings that vaccinations would ward off a Covid-19 disaster, the U.S. is sailing toward a holiday crisis.

Lawmakers Push Off Medicare Spending Cuts
December 10, 2021 6:08 am

The Senate passed legislation 59-34 yesterday that cancels automatic cuts to Medicare, farm subsidies and other programs triggered by deficit spending earlier this year under the PAYGO law.

The measure (S. 610) would push into 2023 the balances on statutory “pay-as-you-go” scorecards that would have triggered funding cuts next year. It also would hit pause for three months, through March 31, on a 2% automatic cut to Medicare payments required under the Budget Control Act of 2011 (Public Law 112-25). Those cuts were most recently suspended through Dec. 31 under Public Law 117-7. It also delay changes to Medicare payments for physicians and some other services for a year.

This week should be the last time Congress extends the moratorium on the Medicare sequester and bonus payments for physicians, Marc Goldwein, director of policy at the Committee for a Responsible Federal Budget, said.

Both policies were aimed at buoying the health-care industry during the worst of the coronavirus pandemic, but aren’t needed any more, Goldwein told Bloomberg Government. “If there’s a need for more relief for hospitals then Congress should do that, but this is a really blunt tool for that,” he said, Alex Ruoff reports.

>
Medicare   
12/10/21 6:08 AM EDT   
     
Lawmakers Push Off Medicare Spending Cuts
Bloomberg

The Senate passed legislation 59-34 yesterday that cancels automatic cuts to Medicare, farm subsidies and other programs triggered by deficit spending earlier this year under the PAYGO law.

Hospitals, Doctors Sue Administration Over Surprise Billing Rule
December 9, 2021 3:52 pm

Key hospital and doctors’ lobbies have asked a federal court to immediately block the Biden administration from moving forward with a controversial piece of its most recent surprise billing rule that they allege illegally limits what an arbitrator can consider when resolving a payment dispute. The American Hospital Association, American Medical Association and several other providers say the interim final rule (IFR) released in September runs afoul of the law and unfairly favors insurers.

The plaintiffs ask the U.S. District Court for the District of Columbia for injunctive relief and ultimately to vacate the part of the IRF that directs arbitrators to primarily consider the qualifying payment amount (QPA), or median in-network rate, when deciding which party will win a payment dispute. The lobbies argue the rule clearly deviates from the statute, which they say requires the QPA – and five additional factors — be weighed equally.

Although the providers seek to scrap that piece of the rule, they stress they support shielding patients from surprise bills and say their challenge will not stop those core protections from going into effect Jan. 1 as mandated.

The suit comes after providers recently laid out their strong objections to the rule in comments sent to the administration, already hinting at that point they might sue.

The American Hospital Association argued in its comments that the latest interim final rule conflicts with the statutory language of the No Surprises Act and violates the Administrative Procedure Act by requiring arbitrators primarily consider the QPA when resolving a payment dispute.

Prior to Thursday’s suit, the Texas Medical Association (TMA) and the Association of Air Medical Services had already challenged the QPA language in separate district courts. Initial briefings in the TMA case are due Dec. 10, and a hearing has been scheduled for Feb. 4 at the U.S. District Court Eastern Division of Texas, Tyler.

The No Surprises Act, which was passed last December as part of the Continuing Appropriations Act, bans providers from balance billing patients for out-of-network emergency room care and care performed in-network by an out-of-network provider.

The law also requires HHS establish an independent dispute resolution process to address payment fights between payers and providers. The process is baseball style — meaning the arbitrator must choose either the offer submitted by the provider or the payer.

The law also details what factors those arbitrators can consider in their decision-making — including the QPA and five other factors — but lawmakers and stakeholders disagree on whether all the factors should be weighed in every case. The other factors include patient acuity, provider training levels, market share held by both parties, teaching status of the hospital and prior contracted rates.

Insurers, employers, some health experts and some lawmakers say Congress wanted the arbitrators to primarily consider the QPA, or median in-network rate, while providers and other lawmakers say Congress intended for all of the factors to be weighed equally.

The IFR released Sept. 30 lands on the insurers’ side, saying that arbitrators must consider the QPA while the other factors can be looked at if more information is needed.

Providers say that’s a misinterpretation.

“Rather than honoring this statutory requirement, the departments instead have chosen to make the QPA the presumptively appropriate payment amount, thus relegating all other factors to second-tier status and to be considered only as what the IFR preamble refers to as ‘rebuttal evidence’ to demonstrate that the QPA is materially different from the appropriate out-of-network rate. The departments lack the authority to put their collective thumb on the scale in this manner,” AHA said in its comments. “Because the IFR impermissibly limits the IDR entity’s ability to consider fully all of the statutory factors, it fundamentally alters the statutory structure and guts the independence of the IDR entity. For these reasons, these provisions in the IFR are contrary to law, arbitrary and capricious, and otherwise violate the Administrative Procedure Act (APA).”

FAH voiced similar concerns in its comments, and said it was exploring its legal options. First, the lobby blasted the administration for not first doing a proposed rulemaking, even as the departments conceded there might have been time for a notice and comment process. FAH also argued the administration went beyond the statute by prescribing the factors the IDR can consider.

AHA and FAH both pointed to recent letters from bipartisan groups of lawmakers to back up their arguments, including a letter from House Ways & Means leaders from both parties and another from more than 150 lawmakers who argue the rule is contrary to congressional intent and must be revised.

Hospitals also urged the administration to provide more flexibility on batching claims.

While the statute allows parties to batch claims, the IFR limits that ability to claims that are for the same items or services or use the same or a comparable code. “This limitation on the batching of claims will substantially reduce the potential efficiencies gained from batching,” AHA said. The lobby requested broader discretion for batching, which it said would benefit all parties in several ways: “First, more comprehensive batching will significantly reduce the number of requests brought before the IDR process. It also may help disincentivize plans and issuers from adopting inappropriate out-of-network payment methodologies that would trigger IDR in the first place. Finally, by implicating a larger number of claims in a single IDR decision, providers and facilities are not incentivized to batch unless they have strong evidence to support their position.”

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Surprise Billing   
12/09/21 3:52 PM EDT   
     
Hospitals, Doctors Sue Administration Over Surprise Billing Rule
Inside Health Policy

Key hospital and doctors’ lobbies have asked a federal court to block the Biden administration from moving forward with a controversial piece of its most recent surprise billing rule that limits what an arbitrator can consider when resolving a payment dispute.

Hospitals, Insurers Split Over Rule Restricting Surprise Bills
December 9, 2021 2:56 pm

Health insurers and medical providers are sharply split over a Biden administration rule that lays out how they should resolve disputes over surprise bills.

Hospitals and doctors say they will be hurt by the rule implementing legislation to crack down on surprise billing, but health insurers and employers say it will prevent health-care price inflation.

“It’s really put a finger on the scale in favor of plans,” Amanda Hayes-Kibreab, a partner with law firm King & Spalding who represents major hospitals and providers, said of the interim final rule published Oct. 7 by four agencies.

The rule implements a major provision of the No Surprises Act, which was enacted as part of budget legislation in 2020 (H.R. 133) to end most surprise out-of-network billing. It will give health plans “undue leverage in managed care contracting negotiations,” she said.

On the other side of the divide over the law, Erica Socker, vice president of health care for payer reform for philanthropy Arnold Ventures, said the rule makes sure “that the law does put downward pressure on health-care costs, in addition to protecting patients from surprise bills themselves, but still allows for some flexibility where needed.”

Those two views have been argued between medical providers and the health plans and employers that pay for employee care throughout the debate over how to resolve billing disputes for out-of-network bills. Comments on the interim final rule were filed Dec. 6.

Texas doctors and air ambulance providers are challenging the rule in separate lawsuits. In addition, about 150 members of the House wrote Biden administration officials calling for the rule to be revised. The American Medical Association, American Hospital Association, and other parties filed suit against the rule Thursday.

The No Surprises Act, which takes effect Jan. 1, 2022, prohibits hospitals and providers from billing patients more than the amount owed for in-network care in cases of emergencies or when patients receive care from out-of-network providers, such as anesthesiologists, at facilities that are in their insurance networks.

The interim final rule, the second major rule issued to implement the law, requires arbitrators to primarily use the “qualifying payment amount” (QPA), which is based on median contract rates, in deciding billing disputes over out-of-network charges.

Rule ‘Strays’ From Statute

“The elevating of the QPA to the rebuttably presumptive out-of-network rate really strays from the statute,” Hayes-Kibreab said.

Hospitals and doctors, who have billed patients thousands or even tens of thousands of dollars in out-of-network charges, argue they will be treated unfairly by health plans unless other factors the law allows to be considered are weighed equally in the independent dispute resolution (IDR) process. Those other factors can include the experience and education of the provider and the complexity of the case.

Requiring billing disputes to be based on network contract rates “is not going to be helpful for providers, whether we’re talking about facility providers or physician providers,” Hayes-Kibreab said.

But Socker said “the administration’s position is very strong.” Using the qualifying payment amount as the starting point for determining payments for out-of-network services is the right way to go, she said.

“There really is a fairly small subset of providers that are engaging in surprise billing, really exploiting the market failure and the ability to surprise bill to be able to extract higher payment rates,” Socker said. “That is raising health-care costs for everyone.”

Arnold Ventures, which works on lowering health-care costs, filed a comment letter applauding the administration’s approach to the independent dispute resolution process.

‘Underlying Market Failure’

Among the other groups that filed comment letters, the ERISA Industry Committee, which represents large employers in their role as sponsors of employee benefit plans, said “the cost savings intended by the No Surprises Act is possible only by maintaining the qualified payment amount (QPA) as the primary and overriding consideration for final payment determinations during the IDR process.”

America’s Health Insurance Plans (AHIP) said the “underlying market failure” that has led to surprise billing in emergencies and with out-of-network providers where patients have no choice “can be corrected when more health care providers, particularly hospital-based physicians, participate in commercial health plan networks that serve more than 200 million individuals.”

“More in-network care means the requirements of the No Surprises Act need not be triggered, including the need to resolve payment disputes through IDR,” the trade group said.

But the American Medical Association said the rule “could jeopardize patient access to care (including rural and underserved communities) by putting unnecessary strain and burden on physician practices, undercutting efforts by physicians to negotiate fair contracts with insurance companies, and reducing the breadth of provider networks across the country.”

The American Hospital Association, too, requested that the agencies “restore the independence of the IDR entities by not distorting the process in a manner that negatively impacts patient access to care, undercompensates providers and has other consequences far beyond surprise medical bills.”

>
Surprise Billing   
12/09/21 2:56 PM EDT   
     
Hospitals, Insurers Split Over Rule Restricting Surprise Bills
Bloomberg

Health insurers and medical providers are sharply split over a Biden administration rule that lays out how they should resolve disputes over surprise bills.

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