Health Care Checkup: January 26, 2024

Health Care Checkup

January 26, 2023

THE BIG PICTURE: KEY CONGRESSIONAL & EXECUTIVE BRANCH DEVELOPMENTS

On Wednesday, the Senate passed, by unanimous consent, legislation to address nursing shortages. The Train More Nurses Act (S.2853) would require the Secretary of Health and Human Services and the Secretary of Labor to conduct a study and issue a report on grant programs to support the nursing workforce.

On Thursday, Senate Finance Committee Ranking Member Mike Crapo (R-ID) and Chair Ron Wyden (D-OR) released a white paper and announced their commitment to working on bipartisan healthcare legislation to prevent and mitigate shortages of critical generic drugs used by patients and providers in the United States.

What to Expect Next Week:

The House returns to session next week. The House Energy and Commerce Committee will hold a hearing on Wednesday on health care spending.

The Senate is in session next week. The Senate Committee on Health, Education, Labor and Pensions (HELP), Chairman Bernie Sanders (I-VT) has scheduled a hearing Wednesday to vote to subpoena Johnson & Johnson CEO Joaquin Duato and Merck CEO Robert Davis to testify on drug pricing.

DEEP DIVE

Congressional:

Senate Passes Bill to Address Nursing Shortages

Senate Special Committee on Aging Holds a Hearing on Assisted Living Facilities

On Thursday, the Senate Aging Committee held a hearing focusing on assisted living facilities and long-term care options for older adults. Interest in exploring both healthcare workforce shortages and quality of care in assisted living facilities was led by Chair Bob Casey (D-PA). Democrats expressed concerns about a lack of national standards for assisted living facilities, growing costs for consumers, staffing insufficiencies, quality of care issues, and private equity ownership of assisted living facilities. Republicans focused on improving the caregiving workforce and the need for transparency across the healthcare and long-term care spectrum. Read more on the hearing here.

Senator Wyden Investigates Marketing Groups Involvement with Medicare Advantage Brokers

On Tuesday, Senate Finance Committee Chair Ron Wyden (D-OR), continued the Committee’s inquiry into marketing practices for Medicare Advantage (MA) by five third-party marketing organizations that participate in the MA enrollment period. Wyden sent letters to eHealth, GoHealth, Agent Pipeline, SelectQuote, and TRANZACT about their role in generating or purchasing "leads" for brokers to reach out to about MA plans. Wyden stated the practice leads to the selling of sensitive personal information and people being "bombarded" by brokers and bad actors. In November, the Centers for Medicare and Medicaid Services (CMS) proposed a rule further limiting the commission agents and brokers receive for signing up new members that Medicare Advantage plans rely on to enroll beneficiaries. Wyden wants the administration to go further, urging CMS to limit third-party marketing organizations from selling seniors' information. Read the press release and letters here.

Senators Crapo, Wyden Release Plan to Prevent and Mitigate Generic Drug Shortages

On Thursday, Senate Finance Committee Ranking Member Mike Crapo (R-ID) and Chair Ron Wyden (D-OR) announced their commitment to working on bipartisan healthcare legislation to prevent and mitigate shortages of critical generic drugs used by patients and providers in the United States. In a white paper, Crapo and Wyden outline concerns raised by experts at a December 5, 2023, Finance Committee hearing, as well as areas of interest and ideas the Committee is exploring to address the factors contributing to shortages through modifications to the Medicare and Medicaid programs. Read the press release here.

Rep. Foxx Seeks Feedback from Health Care Community on the Path to Higher Quality, Lower Cost Care

On Monday, ahead of the 50th anniversary of the Employee Retirement Income Security Act of 1974 (ERISA), Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) sent a letter to members of the employee health benefits community seeking feedback on ways to build upon and strengthen ERISA, the foundation of employer-sponsored health care. Foxx additionally asked for information from members of the employee health benefits community on ERISA preemption, fiduciary requirements, reporting requirements, and prohibited transactions, among other things. Read the press release here and letter here.

Senators Grassley, Cantwell Lead Renewed PBM Accountability Push

On Wednesday, Senators Chuck Grassley (R-IA) and Maria Cantwell (D-WA), along with 12 colleagues, sent a letter urging the Federal Trade Commission (FTC) to complete its investigation of pharmacy benefit managers (PBMs). The senators are also requesting a status update on the investigation, which the FTC launched in June 2022. The letter follows the recent committee passage of Grassley- and Cantwell-led measures targeting prescription drug costs and heightened PBM oversight. Read the press release and letter here.

Senator Warner, Colleagues Push to Preserve Access to Telehealth for Medicare Beneficiaries

On Wednesday, Senators Mark Warner (D-VA) and Brian Schatz (D-HI), along with eight other bipartisan, bicameral lawmakers, urged the Department of Health and Human Services (HHS) to work with Congress to ensure Medicare beneficiaries maintain access to telehealth. Current pandemic-era flexibilities will expire on Dec. 31, 2024, without further action. In a letter to HHS Secretary Xavier Becerra, the lawmakers stated the urgent need to make pandemic-era telehealth flexibilities permanent. Read the press release and letter here.

Congressional Digital Health Caucus Launch: Exploring the Intersection of Health and AI

On Thursday, February 1, the Consumer Technology Association will host a briefing with Reps. Troy Balderson (R-OH) and Robin Kelly (D-IL), to launch the bipartisan Congressional Digital Health Caucus. The caucus will aim to ensure that “all Americans benefit from the transformative power of digital health tools.” The briefing will feature a panel of experts from Google, Microsoft, Amazon Web Services, and Hippocratic AI that will discuss the role of artificial intelligence (AI) in healthcare. Read more information on the event here.

Notable Bills Introduced:

Senators Cassidy, Smith, Cardin, Thune Reintroduce Bill to Remove Barriers to Telemental Health Care

On Wednesday, Senators Bill Cassidy (R-LA), Tina Smith (D-MN), John Thune (R-SD), and Ben Cardin (D-MD) reintroduced the bipartisan Telemental Health Care Access Act. The bill would remove the statutory requirement that Medicare beneficiaries be seen in person within six months of being treated for mental health services through telehealth. In 2020, Congress permanently expanded access for Medicare patients to be treated in their home and other sites for mental health services but required patients to be seen in-person before receiving telemental services. The Telemental Health Care Access Act eliminates this in-person requirement. Read the press release here and the bill here.

Senators Hassan and Braun Introduce Bipartisan Bill to Improve Accessibility of Medical Devices

On Wednesday, Senators Maggie Hassan (D-NH) and Mike Braun (R-IN) introduced a bipartisan bill to improve access to home medical devices for blind and visually impaired users. The bill would require the Food and Drug Administration (FDA) to develop rules requiring that new medical devices with digital displays, such as glucose monitors or insulin pumps, include accessible features for visually impaired users unless it would change the fundamental nature of the device. Read the press release here and the bill here.

Executive Branch:

Biden-Harris Administration Launches Effort to Increase Medicare Advantage Transparency

On Thursday, the Department of Health and Human Services (HHS), through the Centers for Medicare and Medicaid Services (CMS), released a Request for Information (RFI) to solicit feedback from the public on how best to enhance MA data capabilities and increase public transparency. CMS stated it is seeking information on all aspects of the Medicare Advantage program, from access to care, prior authorization, provider directories, and networks to supplemental benefits and marketing. The request comes after Senators Bill Cassidy (R-LA) and Elizabeth Warren (D-MA), along with other colleagues, urged CMS Administrator Chiquita Brooks-LaSure in December to improve the data collection and reporting practices of Medicare Advantage plans. Read the press release here and the RFI here.

CMS Announces New Actions to Help Hospitals Meet Obligations under EMTALA

On Monday, the Department of Health and Human Services (HHS) announced that, together with the Centers for Medicare & Medicaid Services (CMS), it will launch a series of actions to educate the public about their rights to emergency medical care and to help support efforts of hospitals to meet their obligations under the Emergency Medical Treatment and Labor Act (EMTALA). As part of this comprehensive plan, the Department will:

Publish new informational resources on CMS’s website to help individuals understand their rights under EMTALA and the process for submitting a complaint if they are denied emergency medical care;
Partner with hospital and provider associations to disseminate training materials on providers’ obligations under EMTALA;
Convene hospital and provider associations to discuss best practices and challenges in ensuring compliance with EMTALA; and
Establish a dedicated team of HHS experts who will increase the Department’s capacity to support hospitals in complying with federal requirements under EMTALA.

Read the press release here.

21.3 Million People Choose ACA Marketplace Coverage

On Wednesday, the Biden-Harris Administration announced 21.3 million people selected an Affordable Care Act Health Insurance Marketplace plan during the 2024 Open Enrollment Period. Total plan selections include more than five million people who are new to the Marketplaces and 16 million people who renewed their coverage. Notably, open enrollment continues in four states and Washington, D.C., through January 31. Read the press release here.

HHS Releases New Voluntary Performance Goals to Enhance Cybersecurity Across the Health Sector and Gateway for Cybersecurity Resources

On Wednesday, the Department of Health and Human Services (HHS), through the Administration for Strategic Preparedness and Response (ASPR), is releasing voluntary health care specific cybersecurity performance goals (CPGs) and a new gateway website to help Health Care and Public Health (HPH) sector organizations implement these high-impact cybersecurity practices and ease access to the plethora of cybersecurity resources HHS and other federal partners offer. The voluntary cybersecurity performance goals follows the Centers for Medicare and Medicaid Services’ (CMS) statement last month that it would propose cyber mandates for hospitals but has not yet announced when that would happen. Read the press release here.

Legal & Other:

FTC Sues Novant Health Over North Carolina Hospital Purchases

On Thursday, the Federal Trade Commission filed a lawsuit against Novant Health Inc. over the provider’s purchase of two North Carolina hospitals, alleging the acquisitions would likely raise healthcare costs by several million dollars annually and diminish the quality of patient care. The lawsuit filed in the US District Court for the Western District of North Carolina, is the FTC’s latest attempt to promote competition in the healthcare industry. The FTC has repeatedly argued hospital consolidation has a direct impact on patients’ access to affordable and high-quality care. Read the FTC press release here and the court docket here.

Doctors’ Challenge to Surprise Billing Law Rejected by Court

On Tuesday, a federal appeals court upheld the dismissal of claims challenging the No Surprises Act brought by a Long Island surgeon but is allowing the doctor to potentially replead one of his claims in district court. In a summary order released Tuesday, a three-judge panel of the US Court of Appeals for the Second Circuit affirmed the dismissal of Daniel Haller and Long Island Surgical PLLC’s claims that the No Surprises Act violates their Seventh Amendment right to a jury trial and amounts to an unconstitutional taking of their property under the Fifth Amendment. The plaintiffs had originally filed a lawsuit against the Department of Health and Human Services in 2021, challenging the law on the grounds that it undermined providers’ right to sue patients for the reasonable value of emergency medical services.