NATaT Weekly Legislative Update, October 31, 2016

Weekly Legislative Update

Week of October 31, 2016

Congressional Outlook

Week of October 31st

The House and Senate are in recess for two more weeks, with the House returning November 14 and the Senate returning November 15. The only must-pass item on the agenda for the remainder of the 114th Congress is wrapping up the 11 remaining appropriations bills to fund federal government agencies and programs for the balance of the 2017 fiscal year (i.e., through Sept. 30, 2017), in order to avert a government shutdown. This will likely be done through an omnibus, but if an agreement can't be reached on a massive spending package, another Continuing Resolution (CR) may be necessary. The dynamics of those negotiations likely rest heavily on the outcome of the November elections. On Nov. 15, the Senate is scheduled to take a vote on the Gold Star Families Voices Act (H.R. 4511), which the House passed by voice vote on September 6, and which would expand the Library of Congress' Veterans History Project (VHP) to include family members of veterans who died as a result of their service or who are missing in action.

There are numerous other issues Congress will consider when it returns for the four-week "lame-duck" session in November and December, including (1) the Water Resources Development Act (WRDA) of 2016 House-Senate Conference Committee (H.R. 5303/S. 2848); (2) the Energy Policy Modernization Act House-Senate Conference Committee ( S. 2012); (3) the FY 2017 National Defense Authorization Act (NDAA) House-Senate Conference Committee (H.R. 4909/ S. 2943); (4) the 21st Century Cures Act ( H.R. 6); (5) a tax extenders package for more than 30 tax provisions set to expire on Dec. 31, 2016, including those ranging from renewable energy and energy conservation, to provisions affecting homeowners and their mortgages, rum producers, and owners of race tracks and race horses; (6) additional emergency aid for states negatively impacted by severe flooding in 2016 and funding for opioid addiction prevention; (7) a package of bills to overhaul the criminal justice system; and (8) various foreign policy issues, including extending sanctions authorities on Iran, which expire on Dec. 31, 2016, and amending the newly passed Justice Against Sponsors of Terrorism Act, which allows the family members of 9/11 victims to sue Saudi Arabia in U.S. courts.

In the lame-duck, both parties will likely choose their leaders for the next Congress. While Senator Chuck Schumer (D-NY) has a lock on becoming the next Senate Democratic leader, a scuffle could ensue for the whip position between incumbent Sen. Dick Durbin of Illinois and Sen. Patty Murray of Washington. Republicans are tentatively scheduled to vote on their leaders for the next Congress on November 15, despite efforts from GOP hard-liners to delay the vote until next year. Top Republicans are working to tamp down dissent against Ryan within the House GOP conference.

There are 8 days until Election Day.

Week in Review

Obama Administration Announces New Steps to "Spur Competition in the Labor Market and Accelerate Wage Growth"

On October 25, the Obama Administration announced new steps in response to President Obama's April 15, 2016 Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs:

Issue Brief on How Monopsony Power Impacts Wages and Employment. The Council of Economic Advisers released a new issue brief that reviews evidence that firms may have wage-setting power in a broad range of areas, explains how anti-competitive forces can lead to a redistribution of revenues from workers to companies, and reviews the policy implications of this analysis.

Non-Compete Agreements: Call-to-Action to States, Largest-Ever Data Collection, and State-by-State Policy Report. Non-compete agreements narrow the employment options for an estimated one in five workers in the United States. As the White House and Treasury reported earlier this year, there is substantial evidence of overuse and misuse of these clauses. The Obama Administration has put out a call to action and set of best practices for state policymakers to enact reforms to reduce the prevalence of non-compete agreements that are hurting workers and regional economies. To contextualize these best practices, the White House is releasing a state-by-state report on key dimensions of current state non-compete policy. Finally, the White House is announcing commitments to undertake the largest data collection of its kind to better measure non-compete usage by firms and individuals, alike.

Antitrust Guidance and Reporting Hotline for Human Resource Professionals. On October 20, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released guidance for HR professionals for how to spot and report collusion among competing employers that may violate the antitrust laws. In the guidance, DOJ announced that going forward it will criminally investigate allegations that employers have agreed amongst themselves on employee compensation or not to solicit or hire one another's employees.

According to the White House, "these new actions complement the many other steps the Administration has advanced and supported to level the playing field for workers in the job market, including raising the minimum wage, advancing paid leave, supporting collective bargaining, and pushing to reform occupational licensing and land use restrictions." Read more...

Obama Administration Announces Steps Taken By Federal Parity Task Force to Strengthen Insurance Coverage for Mental Health and Substance Use Disorders

On October 27, the Obama Administration announced that the Mental Health and Substance Use Disorder Parity Task Force, established by a March 29, 2016 Presidential Memorandum, issued its final report. The report includes a series of actions and recommendations from the Task Force to help ensure better implementation of parity; to help consumers, providers, and plans understand how parity works; and to ensure appropriate oversight and enforcement of parity protections. These steps are based on input the Task Force received through a series of listening sessions between March and October held with consumers, providers, employers, health plans, and State regulators, and through the more than 1,100 public comments the Task Force received from individuals with mental health and substance use disorders, families, their providers, advocates, and other stakeholders. The Task Force announced the following actions:

The Centers for Medicare & Medicaid Services (CMS) is awarding $9.3 million to States to help enforce parity protections. CMS funding will help State insurance regulators work to ensure issuer compliance with the mental health and substance use disorder parity protections.
The U.S. Department of Health and Human Services (HHS), in partnership with the U.S. Department of Labor (DOL) and other Task Force agencies, is releasing the beta version of a new parity website to help consumers find the appropriate Federal or State agency to assist with their parity complaints, appeals, and other actions. The Task Force received many comments about the challenges consumers face in identifying the appropriate agency that regulates their insurance coverage. The beta site is being released today for public comment. In the future, the Task Force Departments intend to work together to build out additional functionality on the website related to complaint and data tracking.
The Substance Abuse and Mental Health Services Administration (SAMHSA) and DOL are releasing a Consumer Guide to Disclosure Rights: Making the Most of Your Mental Health and Substance Use Disorder Benefits to help consumers, their representatives, and providers understand what type of information to ask for when inquiring about a plan's compliance with parity and to explain the various Federal disclosure laws that also require disclosure of information related to parity. The Guide includes 11 scenarios, each with specific suggestions for information consumers have a right to that can help, as well as timing requirements for plans and issuers providing these documents.
DOL is announcing that it will release annual data on closed Federal parity investigations and will report on the findings, including the violations cited to ensure parity compliance and inform future policymaking efforts. This effort builds on the 1,515 investigations related to the Mental Health Parity and Addiction Equity Act and 171 violations cited by DOL since October of 2010.
To ensure parity compliance in plans required to offer essential health benefits, CMS has added Mental Health Parity and Addiction Equity Act compliance to its review of plans subject to the essential health benefits requirement under the Affordable Care Act, and it expects State regulators to do so as well.
DOL, HHS, and the Department of Treasury (Treasury) are issuing guidance on parity and opioid use disorder treatment to address specific questions the Departments have received related to issues such as the application of parity to opioid treatment access and coverage of court-ordered treatment.
HHS, DOL and Treasury are soliciting feedback on how the disclosure document request process can be improved (input is being sought through the FAQ process), while continuing to ensure consumers' rights to access all appropriate information and documentation. The request solicits input on the option of developing model forms for parity-related disclosure requests.
SAMHSA is announcing that it will host two State Policy Academies on Parity Implementation for State Officials in Fiscal Year 2017, including one focused on the commercial market and one on parity in Medicaid and the Children's Health Insurance Program. These policy academies will bring together national experts to provide technical assistance to teams of State officials on strategies to advance parity compliance and lessons learned from other States' implementation efforts.
CMS will undertake a review of mental health and substance use disorder benefits in Medicare Advantage plans and identify any necessary improvements to advance parity protections.
DOL, HHS, and Treasury are issuing a Parity Compliance Assistance Materials Index. The Departments have issued a total of 44 Frequently Asked Questions (FAQs) over the past six years related to parity, generally as part of larger guidance documents, as well as other parity materials. Several commenters suggested to the Task Force that putting all the parity-related FAQs and guidance together in one place would make the information easier to find and use for States, plans consumers, and other stakeholders.