Later this week, the U.S. House of Representatives will introduce and likely vote on the COVID-19 relief bill supported by President Biden. As the vote nears, however, the Byrd rule will be key in determining which provisions, such as raising the minimum wage to $15, will survive the congressional process.

Read more from McGuireWoods Consulting to learn the advantages and limitations of lawmakers using the budget reconciliation process to push a bill like this through Congress.

This week in Washington: House committees hold budget reconciliation markups for COVID-19.

House

Ways & Means Finishes Markup of COVID-19 Relief Measures
On Feb. 11, the House Ways & Means Committee cleared its piece of the House’s $1.9 trillion COVID-19 package, which would increase Affordable Care Act (ACA) tax credits, provide maximum credits to anyone on unemployment in 2021, subsidize COBRA and offer tax relief to those who would otherwise have to return ACA subsidy overpayments. The bill was reported out of committee, 25-18, ahead of the Feb. 16, 2021, deadline. Find more information and the full text here.

Education and Labor Finishes Markup of COVID-19 Relief Measures
On Feb. 8, the House Education and Labor committee cleared its piece of the House’s budget reconciliation, $1.9 trillion COVID-19 package. Among the committee’s additions is a provision that allows workers who are eligible for COBRA due to involuntary termination or reduction in hours to receive coverage under their employment-based health plan with a premium reduction of 85 percent. Premium assistance will be available to workers beginning the first month following the date of enactment and will remain available through Sept. 30, 2021.

The provision also permits for an extended election period to allow individuals who previously experienced a qualifying event to enroll in coverage. In addition, employers are required to provide clear and understandable written notices to workers and establishes an expedited review process for workers who are denied premium assistance. It also allows for a payroll tax credit to allow employers and plans to be reimbursed for the full amount of COBRA premiums not paid by workers. Find more information and a section-by-section summary here.

Energy and Commerce Finishes Markup of COVID-19 Relief Measures
On Feb. 12, the House Energy and Commerce Committee cleared its piece of the House’s budget reconciliation package. The Energy and Commerce budget reconciliation package includes titles on public health Medicaid and the Children’s Health Insurance Program.  The package includes provisions authorizing:

  • $14 billion for vaccines;
  • $46 billion for testing, contact tracing, and mitigation;
  • $7.6 billion to hire 100,000 full time public health workers to support COVID-19 response;
  • $25 billion to address health disparities and protect vulnerable populations;
  • $4 billion for behavioral and mental health services;
  • $5 billion to help families pay their energy and water bills; and
  • $7.6 billion to expand internet connectivity for students and teachers without internet access.

No Republican amendments were accepted in the mark up.  Find more information here.

Adams, Booker, Underwood Release the Black Maternal Health Momnibus Act to Address America’s Maternal Health Crisis
On Feb. 8, Reps. Alma Adams (D-NC) and Lauren Underwood (D-IL), Sen. Cory Booker (D-NJ) and members of the Black Maternal Health Caucus released the Black Maternal Health Momnibus Act of 2021. The legislation builds on existing maternal health legislation and the Black Maternal Health Momnibus of 2020 with 12 bills to address the drivers of the maternal health crisis. The legislation makes investments in addressing social determinants of health, funding community-based organizations, growing and diversifying the perinatal workforce and improving data collection processes. It also addresses the impacts of COVID-19 and climate change on maternal and infant health. Find more information here.

Senate

Grassley, Ernst Ask Biden Administration to Release Vaccine Allocation Statistics
On Feb. 9, Sens. Chuck Grassley (R-IA) and Joni Ernst (R-IA) requested the Centers for Disease Control and Prevention (CDC) to publicly release its weekly formula for allocating vaccines to states and other jurisdictions. The purpose of the request is to ensure transparency in the vaccine distribution process. The request asks CDC to publish this information in a simple format for every week of allocated vaccines and each state’s weekly pro-rata share of vaccine allocations. Find the letter here.

Read more on healthcare policy from McGuireWoods Consulting’s Washington Healthcare Update.

This week in Washington: Congress moves towards budget reconciliation.

Hearings/Markups

House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations: No Time to Lose: Solutions to Increase COVID-19 Vaccinations in the States

Tuesday, February 2: The House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations held a hearing on COVID-19 vaccine distribution and administration. The subcommittee heard from medical officials from West Virginia, Illinois, Michigan, Louisiana and Colorado about the vaccine administration, methods to maintain transparency and an overall lack of supply.

The state health officials told the subcommittee they need better predictability around how many COVID-19 vaccine doses they will receive each week, and some said until they know for sure of the supply available, they will continue holding back doses to make sure everyone who got their first dose is able to get their second shot.

Find more details here.

House Committee on Energy and Commerce, Subcommittee on Health: Road to Recovery – Ramping Up COVID-19 Vaccines, Testing, and Medical Supply Chain

Wednesday, February 3: The House Committee on Energy and Commerce, Subcommittee on Health held a hearing on the federal government’s handling of COVID-19 vaccine development, testing and the medical supply chain. The subcommittee and witnesses went through the responses, including congressional efforts, and recommendations on how better to fund and regulate the response moving forward.

Find more details here.

House

Energy and Commerce Committee Investigates COVID-19 Vaccine Misinformation Online

On Feb. 2, House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and subcommittee leaders Anna Eshoo (D-CA), Diana DeGette (D-CO), Mike Doyle (D-PA) and Jan Schakowsky (D-IL) sent letters to Facebook, Twitter and Google concerning the COVID-19 pandemic. The letters were in response to reports that COVID-19 vaccine misinformation is escalating on their platforms, and are part of an ongoing investigation by the committee. The letters ask for details of all actions the companies have taken to limit false or misleading vaccine misinformation, as well as a layout of all policies and responses to the problem. Find the letters and more information here.

Senate

Senate Approves Amendment on Provider Relief Fund

On Feb. 4, the Senate agreed to add to the budget resolution an amendment (#546) sponsored by Sens. Susan Collins (R-ME) and Joe Manchin (D-WV) that adds to the Provider Relief Fund $35 billion, with 20 percent set aside for rural hospitals. As congressional committee draft legislation for the COVID-19 package, a Provider Relief Fund may be included.

Cassidy, Baldwin, Shaheen Introduce Bill to Close Orphan Drug Loophole

On Feb. 4, Sens. Bill Cassidy (R-LA), Tammy Baldwin (D-WI) and Jeanne Shaheen (D-NH) introduced S.250, bipartisan legislation to close the orphan drug loophole that drug manufacturers allegedly use to lead competition off the market. The bill allows the Food and Drug Administration (FDA) to remove market exclusivity if the drug manufacturer cannot continue to prove that the drug would be economically unviable when facing competition. Find more information here. Find the full legislation here.

Markey Introduces Bill that Gives NIAID $1B to Research Universal Coronavirus Vaccine

On Feb. 4, Sen. Edward Markey (D-MA) reintroduced legislation that calls for a total investment of $1 billion for the National Institute of Allergy and Infectious Diseases (NIAID) at the National Institutes of Health (NIH). The funds would include $250 million for each of fiscal years 2021 through 2024. Find the full legislation here.

Read more on healthcare policy in McGuireWoods Consuting’s Washington Healthcare Update.

This week in Washington: President Biden issues important executive orders on healthcare.

Congress

Rep. Underwood Reintroduces Bill Enhancing ACA Credits
On Jan. 19, Rep. Lauren Underwood (D-IL) reintroduced legislation to expand and enhance the Affordable Care Act’s (ACA) tax credits, also included in President Biden’s health reform agenda. The Health Care Affordability Act of 2021 would increase the generosity of the existing tax credits for consumers earning up to 400 percent of the federal poverty level (FPL). The bill also would remove the subsidy cliff created by the poverty threshold, ensuring that anyone buying coverage on the exchange would pay no more than 8.5 percent of income toward their premiums.

Administration

Biden Administration Issues Pause for Review on Various Trump-Era Health Rules, Withdraws 3 Rules from Review List
On Jan. 20, the Biden administration paused all rules, guidance or other agency actions that did not take effect prior to noon Jan. 20, to be subject to review by the Biden administration before they could be implemented. If the Trump administration’s actions raise questions of “fact, law, or policy,” the designated officials now leading the relevant agencies can further delay effective dates. Among the regulations that are on hold is the 2021 Physician Fee Schedule, the final rule on grandfathered group health plans and coverage, the Notice of Benefit and Payment Parameters for 2022 with updates to state innovation waivers (Section 1332) and the Revisions to the Outcome Measure Requirements for Organ Procurement Organizations.

The pause may affect the new Stark Law and Anti-Kickback Statute final rules that went into effect this month, after the Government Accountability Office (GAO) reported that the statutorily required waiting period for effectiveness was not followed. As of Jan. 29, the Centers for Medicare and Medicaid Services (CMS) withdrew three rules from this list of paused rules, including one on third-party pay for dialysis and one on accrediting organization oversight. While the Office of Management and Budget (OMB) has withdrawn these regulations from its review process that does not mean the regulations could not be placed on the list again. Find the ongoing list here.

President Biden Issues Multiple Executive Orders Related to Healthcare

On Jan. 28, President Biden signed an executive order to have the Department of Health and Human Services (HHS) open Healthcare.gov for a “Special Enrollment Period,” from February 15, 2021 – May 15, 2021. The executive orders also direct federal agencies to reconsider rules and other policies, including those from the Trump administration that limit access to healthcare, and consider actions that will increase that access.

Agencies are directed to re-examine:

  • Policies that undermine protections for people with pre-existing conditions, including complications related to COVID-19;
  • Demonstrations and waivers under Medicaid and the ACA that may reduce coverage or undermine the programs, including work requirements;
  • Policies that undermine the Health Insurance Marketplace or other markets for health insurance;
  • Policies that make it more difficult to enroll in Medicaid and the ACA; and
  • Policies that reduce affordability of coverage or financial assistance, including for dependents.

While the executive orders do not directly address Medicaid work requirement waivers, the Biden administration is likely to review this issue. Biden also directed HHS to review a rule from the Trump administration to cut off federal funding for domestic family planning programs involved with abortions, such as Planned Parenthood. Biden also rescinded the global gag rule, also referred to as the Mexico City Policy, which bars international non-profits that provide abortion counseling or referrals from receiving U.S. funding. Find the executive orders here.

HHS Amends PREP Act Declaration to Increase Workforce Authorized to Administer COVID-19 Vaccines

On Jan. 28, the Department of Health and Human Services (HHS) issued a fifth amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act (PREP Act) to add additional categories of qualified persons authorized to prescribe, dispense and administer COVID-19 vaccines authorized by the Food and Drug Administration (FDA).

The amendment:

  • Authorizes any health care provider who is licensed or certified in a state to prescribe, dispense and/or administer COVID-19 vaccines in any other state or U.S. territory.
  • Authorizes any physician, registered nurse or practical nurse whose license or certification expired within the past five years to prescribe, dispense and/or administer COVID-19 vaccines in any state or U.S. territory so long as the license or certification was active and in good standing prior to the date it went inactive.
  • Requires any health care professional described above to complete Centers for Disease Control and Prevention (CDC) COVID-19 Vaccine Training and, for health care providers who are not currently practicing or whose license or certification is expired, requires an on-site observation period by a currently practicing health care professional.

Find more details here.

CMS Announces 3-Month Special Enrollment Period, as Directed by Executive Order

On Jan. 28, the Centers for Medicare and Medicaid Services (CMS) announced it will open healthcare.gov and direct enrollment portals to all eligible consumers for a three-month special enrollment period (SEP) starting Feb. 15, and will spend $50 million on outreach and education. The announcement follows President Biden’s executive order directing the Department of Health and Human Services (HHS) to consider the re-opening of the enrollment period. The SEP will last from Feb. 15 to May 15 in all 36 states that use healthcare.gov. CMS also encourages the 15 state-based exchanges to follow suit with their own SEPs. Already, Colorado, California, New Jersey, Minnesota and Washington have announced new enrollment periods.

CMS: Applications for MIPS Exceptions Due to COVID-19 Now Due Feb. 1

On Dec. 17, the Centers for Medicare and Medicaid Services (CMS) pushed back the deadline to Feb. 1 for doctors to apply for extreme and uncontrollable circumstances exceptions from the Merit-based Incentive Payment System. CMS is reminding providers that that process can include a request to leave out one or more performance categories from their score due to the COVID-19 pandemic. However, the hardship application for the interoperability category still had a Dec. 31 deadline. Find more information here.

Read more on healthcare policy in McGuireWoods Consulting’s Washington Healthcare Update.

This week in Washington: President Joe Biden begins his term and Congress begins work to confirm cabinet secretaries.

Wyden and Pallone Send Letter to CMS, Concerned over Section 1115 Demonstrations

On Jan. 19, House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and Senate Finance Committee Ranking Member Ron Wyden (D-OR) wrote to outgoing Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma requesting that CMS rescind a batch of letters it sent to states earlier this month. The letters claim that CMS made it difficult for the incoming Biden administration to reverse harmful Medicaid changes.

CMS asked states to quickly sign onto a new agreement outlined in the letters, establishing a nine-month process for CMS to withdraw federal approval of experimental changes to Medicaid programs known as section 1115 demonstrations. Under the Trump administration, CMS has approved a number of controversial section 1115 demonstrations, including a recently unveiled block grant funding for Tennessee and several work requirement programs that have been repeatedly struck down in the courts.

Find the full letter here.

PBMs Sue Trump Administration over Drug Rebate Rule

On Jan. 12, the Pharmaceutical Care Management Association sued the Trump administration over Medicare drug rebates that pharmaceutical benefit managers (PBMs) use to negotiate lower prices for insurers. The lawsuit challenges the merits of the regulation and argues that the Trump administration circumvented public rulemaking. The rebate rule, which is set to take effect next year, would replace the safe harbor for rebates with a safe harbor for up-front discounts that are given to patients at the pharmacy.

Read more on healthcare policy in McGuireWoods Consulting’s Washington Healthcare Update.

On Wednesday, January 20, 2021, President Biden was sworn into office. As one of his first official acts as President, Biden signed 17 executive actions, one of which was asking the Acting Secretary of Education to extend the pause on interest and payments for federal student loans. A fact sheet released by the White House states that President Biden will ask the Department of Education to extend these provisions until at least September 30, 2021. These provisions are currently set to expire on January 31, 2021.

What to Expect from Biden’s Department of Education

Miguel Cardona

On December 22, 2020, President Biden announced Miguel Cardona as his nominee to be Secretary of Education. Cardona currently serves as Connecticut Commissioner of Education. He began his career as a public school teacher and then served as a principal for 10 years. Prior to being appointed the Commissioner of Education by Connecticut Governor Ned Lamont, Cardona was the assistant superintendent for teaching and learning. He has a bachelor’s degree from Central Connecticut State University and has a master’s and doctorate in Education from the University of Connecticut.

During the pandemic, Cardona gained national attention for being a major proponent of keeping schools open. Reopening schools will likely be his top priority as Secretary, if confirmed. President Biden has pledged to open schools within his first 100 days in office.

In his speech following the announcement of his nomination, Cardona emphasized the need for universal early childhood education and “quality social and emotional supports” for students. Cardona will also likely look at rolling back many of the regulations put in place by President Trump’s Secretary of Education Betsy DeVos.

Cardona is expected to be confirmed by the Democrat-controlled Senate.

Cindy Marten

Earlier this week, President Biden named Cindy Marten as his choice for Deputy Secretary of Education. Marten currently serves as the San Diego Unified School District Superintendent. Like Cardona, Marten also began her education career in the classroom as a teacher. Marten earned her bachelor’s degree from the University of Wisconsin at La Crosse and her master’s degree in Teaching and Learning from the University of California, San Diego.

Marten must also be confirmed by the Senate.

What to Expect from the 117th Congress

On January 5th, 2021, Georgia elected Raphael Warnock (D) and Jon Ossof (D) to the U.S. Senate. Their victories in the run-off elections flipped control of the U.S. Senate from Republicans to Democrats. As a result, Senator Chuck Schumer (D-NY) will become majority leader, and Democrats will lead the committees. While this is a huge win for Democrats, their majority is very narrow as the Senate is evenly split with 50 Democrats and 50 Republicans. Vice President Kamala Harris (D) will serve as the tie-breaker.

This narrow majority means progressive policy proposals are unlikely to pass as Republican support will be needed to get legislation (60 votes in the Senate) over the finish line. However, Democrats can use, and will likely attempt to use, the budget reconciliation process (requires simple majority of 51 votes), which exempts certain legislation from the filibuster, to pass a few key priorities without needing the help of Republicans. While it is unclear what exactly would be included in the budget reconciliation package or how large it would be, student loan forgiveness is likely to be included.

Other priorities for the Senate, as well as the Democrat-controlled House of Representatives, include another coronavirus relief package and confirming President Biden’s cabinet nominees. It remains to be seen when the Senate will conduct the impeachment trial of former President Trump.

Senate Health, Education, Labor and Pensions (HELP)

With the Democrats taking control of the Senate, Senator Patty Murray (D-WA) will be chair of the Senate HELP Committee. Senator Richard Burr (R-NC) will be Ranking Member.

Education priorities for the HELP Committee under Murray’s leadership include addressing the coronavirus pandemic, helping schools reopen, and reauthorization of the Higher Education Act. Murray is also a strong advocate of early childhood education, so the committee may focus on that under her leadership as well. One of the HELP committee’s first tasks will be to advance Miguel Cardona’s nomination to be Secretary of Education.

President Biden’s American Rescue Plan

Ahead of his inauguration, President Biden released the “American Rescue Plan,” a $1.9 trillion coronavirus relief and stimulus package. The plan calls for $160 billion to create a national vaccine program, expand testing, create a public health jobs program, and “take other necessary steps” to combat COVID-19.

The plan also calls for another round of stimulus checks ($1,400/person), increased unemployment benefits ($400/week) through September (currently set to expire in March), the restoration of emergency paid leave, and funding for rental assistance, education, child care, and small businesses.

While the Biden Administration is hoping for bipartisan approval of the package, they are also discussing the possibility of using budget reconciliation as way to get the bill through Congress.

Below is a summary of key provisions on education and workforce.

Education

Biden’s plan calls for $170 billion for education. Of that appropriation $130 billion would go to the Elementary and Secondary School Emergency Relief (ESSER) fund, $35 billion would go to the Higher Education Emergency Relief (HEER) fund, and $5 billion would go to the Governors Emergency Education Relief (GEER) fund.

Workforce

Biden’s rescue plan encourages Congress to authorize OSHA to issue workplace safety standards and raise the minimum wage to $15 per hour. It also includes “historic investments in expand the public health workforce.” According to the proposal, the plan would fund 100,000 public health workers to help in the fight against COVID-19. Biden’s plan also focuses on expanded child care assistance to help “parents return to work,” including calling for $15 billion in funding for the Child Care and Development Block Grant program as well as tax credits to help with the cost of childcare.

Read more in McGuireWoods Consulting’s Education Policy Update.

This week in Washington: The 117th Congress will be in session on Jan. 21.

Senate Finance Issues Bipartisan Report on Rising Insulin Prices

On Jan. 14, the Senate Finance Committee released a bipartisan report on rising insulin prices over the past decade. In the course of its investigation, the committee reviewed the three largest insulin manufacturers (Sanofi, Novo Nordisk and Eli Lilly) and the three largest PBMs (CVS Caremark, Express Scripts and OptumRx) in the U.S. The investigation found that insulin manufacturers raised the list price of their insulin products absent significant advances in the efficacy of the drugs. The report also said there was little attempt by PBMs to discourage manufacturers from increasing the list price of their products. Find the full report here.

CMS Releases an Informational Bulletin on the Extension of Grace Period Related to the Four Walls Requirement for IHS/Tribal Facilities

On Jan. 15, the Centers for Medicare and Medicaid Services (CMS) released a Center Informational Bulletin that extends the grace period previously granted to Indian Health Service (IHS) facilities, and facilities operated by Tribes and Tribal organizations under the Indian Self-Determination and Education Assistance Act (ISDEAA). This ISDEAA permits IHS and Tribal facilities to claim Medicaid reimbursement under the clinic services benefit at 42 C.F.R. § 440.90 (including at the IHS All Inclusive Rate) for services provided outside the “four walls” of the facility.

The grace period is extended to Oct. 31, 2021, and the bulletin explains the steps Tribal facilities and states will need to take before the extended grace period expires in order for these facilities to continue to be reimbursed for services provided outside the four walls of the facility after Oct. 31. Find more information here.

CMS Updates Opioid Prescribing Mapping Tools with 2018 Data

On Jan. 15, the Centers for Medicare and Medicaid Services (CMS) released an update to the Medicare Part D Opioid Prescribing Mapping Tool and the Medicaid Opioid Prescribing Mapping Tool with data for 2018. The Opioid Prescribing Mapping Tools are web-based visualization resources that present geographic comparisons of opioid prescribing rates. The Medicare Part D Opioid Prescribing Mapping Tool presents opioid prescribing rates at the state, county and ZIP Code levels and the Medicaid Opioid Prescribing Mapping Tool presents opioid prescribing rates at the state level. In both the Medicare Part D and Medicaid programs, overall opioid prescribing rates continue to decrease. In Medicare Part D, the opioid prescribing rate had decreased from 5.1 percent in 2017 to 4.7 percent in 2018. In the Medicaid program, the opioid prescribing rate decreased from 4.6 percent in 2017 to 3.7 percent in 2018. The Opioid Prescribing Mapping Tools are available here.

CMS: Geographic Direct Contracting Model Request for Applications (RFA) Now Available

On Jan. 15, the Centers for Medicare and Medicaid Services (CMS) announced that the Geographic Direct Contracting Model (Geo) Request for Applications (RFA) is now available. The Model will test a geographic-based approach to improve health and reduce costs in selected regions across the country. CMS expects to accept applications for Geo from March 1-April 2, 2021, via an online portal. Further details will be available on the Geo webpage in the coming month.

The RFA lists full details on the Model, including:

  • Eligibility and participation requirements;
  • Model design elements, such as beneficiary eligibility and alignment, beneficiary outreach and education requirements, financial methodology, model overlap, benefit enhancements, beneficiary engagement incentives, capitation payment mechanisms, payment integrity and medical review;
  • Application questions, scoring and selection, including the proposed discount review process.

Find more information here.

CMS: Part D Senior Savings Model – CY 2022 Pharmaceutical Manufacturer RFA Released

On Jan. 15, the Centers for Medicare and Medicaid Services (CMS) released the Calendar Year (CY) 2022 Part D Senior Savings Model Request for Applications (RFA) for Pharmaceutical Manufacturers for Plan Year 2022. The Part D Senior Savings Model tests a change that enables participating Part D enhanced alternative plans to lower Medicare beneficiaries’ out-of-pocket costs for insulin to a maximum $35 copay per one-month supply in the deductible, initial coverage and coverage gap phases of the benefit. CMS intends to subsequently release the CY 2022 Request for Applications for Part D Sponsors after it completes its review and approval of CY 2022 manufacturer participation, and is currently targeting March 2021 to start these activities.

Manufacturers of Model Drugs who are not currently participating in the Part D Senior Savings Model that wish to participate in the Model for the 2022 Plan Year must submit an executed Addendum to the Medicare Coverage Gap Discount Program Agreement for Participation in the Part D Senior Savings Model to CMS by 11:59 p.m. ET on Jan. 27, 2021.  Signed materials should be submitted to CMS via PartDSavingsModel@cms.hhs.gov. Find more information here.

CMS: Applications for MIPS Exceptions Due to COVID-19 Now Due Feb. 1

On Dec. 17, the Centers for Medicare and Medicaid Services (CMS) pushed back the deadline to Feb. 1 for doctors to apply for extreme and uncontrollable circumstances exceptions from the Merit-based Incentive Payment System. CMS is reminding providers that that process can include a request to leave out one or more performance categories from their score due to the COVID-19 pandemic. However, the hardship application for the interoperability category would still have a Dec. 31 deadline. Find more information here.

Read more on healthcare policy in McGuireWoods Consulting’s Washington Healthcare Update.

This week in Washington: The 117th Congress will be in session on Jan. 21.

Administration

CMS: 2022 Requests for Applications for the Value-Based Insurance Design (VBID) Model and its Hospice Benefit Component
On Jan. 8, the Centers for Medicare and Medicaid Services (CMS) announced that the Value-Based Insurance Design (VBID) Model team will host a webinar on Jan. 14, 2021, from 4-5 p.m. ET. During this webinar, presenters will provide a brief review of the recently released calendar year (CY) 2022 requests for applications (RFAs) for the VBID Model and the Hospice Benefit Component. This session will also offer attendees an opportunity to ask follow-up questions. Please submit questions in advance by emailing the VBID mailbox at VBID@cms.hhs.gov.

CMS: MFAR to Be Formally Withdrawn
On Jan. 7, the Centers for Medicare and Medicaid (CMS) Administrator Seema Verma announced that CMS is withdrawing the Medicaid Fiscal Accountability Regulation (MFAR). She added that the 2020 year-end legislation that included supplemental pay transparency provisions would help achieve the proposed rule’s goals. However, the withdrawal notice did not appear to be on the Federal Register website as of her announcement.

CMS Adds to ACO, ESCO Resources with Resource Transformation Toolkit, Case Studies and Tip Sheet
On Jan. 6, the Centers for Medicare and Medicaid Services (CMS) announced the release of new resources highlighting strategies used by Medicare Accountable Care Organizations (ACOs) and End-Stage Renal Disease Seamless Care Organizations (ESCOs) in an effort to improve quality of care, lower health care costs and enhance beneficiary experience. These resources, posted on the ACO General Information web page, include:

  • care transformation toolkit that describes ACO approaches to developing and implementing programs that transform the delivery of care and relate to telehealth, home visits and timely access to skilled nursing facilities. Find the toolkit here.
  • Four case studies that feature specific ACO and ESCO initiatives to:
  • tip sheet that highlights strategies for enhancing education on home dialysis and for expanding the use of home dialysis. Find the tip sheet here.

CMS: Applications for MIPS Exceptions Due to COVID-19 Now Due Feb. 1
On Dec. 17, the Centers for Medicare and Medicaid Services (CMS) pushed back the deadline to Feb. 1 for doctors to apply for extreme and uncontrollable circumstances exceptions from the Merit-based Incentive Payment System to Feb. 1. CMS is reminding providers that that process can include a request to leave out one or more performance categories from their score due to the COVID-19 pandemic. However, the hardship application for the interoperability category would still have a Dec. 31 deadline. Find more information here.

Read more on healthcare policy in McGuireWoods Consulting’s Washington Healthcare Update.

Coronavirus Relief Summary

On Monday, December 21, Congress passed the Consolidated Appropriations Act, 2021, which includes the highly anticipated coronavirus relief package. The $900 billion relief package includes funding for stimulus checks, unemployment benefits, small businesses, vaccine distribution, health care, education, transportation, rental assistance, and agriculture. President Trump is expected to sign the legislation.

Compared to the CARES Act, the stimulus checks in this new relief package are smaller. Taxpayers making less than $75,000 can expect to see a $600 stimulus check, compared to $1,200 per person included in the CARES Act. Similarly, the relief package will provide an extension of the CARES Act unemployment insurance of $300 through March 14, 2021. Under the CARES Act, workers receiving unemployment received $600 per week.

Notably, the package does not include funding for state and local governments nor liability protections for businesses; however, the package does extend the deadline for spending appropriated money from the CARES Act Coronavirus Relief Fund (aid to states and localities) by one year until December 31, 2021. Liability protection and funding for state and local governments were very contentious and excluded from the package in an effort to reach an agreement before the 116th Congress adjourned.

Below we have detailed the education, broadband, student loan, workforce development, and small business provisions of the relief package.

Education

The legislation provides $82 billion for the education funding streams created under the CARES Act. Of this appropriation, $4.1 billion is allocated for the Governors Emergency Education Relief (GEER) Fund, of which $2.75 billion is earmarked for private schools. The Elementary and Secondary School Emergency Relief (ESSER) Fund will receive $54.3 billion, and the Higher Education Emergency Relief (HEER) Fund will receive $22.7 billion. Funds will be allocated to these streams using the same formulas that were used under the CARES Act. Funds must be used within 1 year of receiving them.

Broadband

The coronavirus pandemic has highlighted the importance of connectivity, especially for education as the majority of schools went virtual for the 2020-2021 academic year. To that end, the relief package provides $7 billion for broadband access.

Student Loans

The bill does not extend the student loan forbearance provisions under the CARES Act. The forbearance provisions under the CARES Act are currently set to expire on January 31, 2021, after Secretary DeVos extended the provisions earlier this month.

Workforce Development

There are no workforce development provisions in the package.

Paycheck Protection Program

The package provides $325 billion to the Small Business Administration. Of this appropriation, 284.45 billion is allocated for the Paycheck Protection Program Second Draw Loans. Small businesses with 300 or fewer employees that have lost at least 25 percent of their revenue in any quarter of 2020 are eligible to receive a second draw.

Read more on major provisions included in the bill from McGuireWoods Consulting’s federal team.

Biden Transition Update

President-elect Joe Biden’s education transition team, led by Linda Darling-Hammond, is hard at work preparing to hit the ground running on Inauguration Day (January 20, 2021). The transition team is focused on ensuring a smooth roll out of the coronavirus relief funds when the Biden Administration takes office. It is also taking steps to prepare for Biden’s policy agenda, which includes increasing Title I funding to make investments in teacher pay and early childhood education, among other things, and a focus college affordability. In addition, the transition team is reviewing policies put in place by Secretary DeVos, as President-elect Biden and his cabinet pick will likely look to reverse several of these policies, including Title IX regulations on sexual misconduct.

Connecticut Education Commissioner Miguel Cardona is set to be nominated as the next Secretary of Education. Biden has said he will choose a public school teacher to be Secretary of Education, and Cardona began his career as a fourth grade teacher.

State Legislatures

As state legislatures convene for the 2021 legislative session, legislators will have to address a number of important issues affecting their states. At the top of the list is the ongoing coronavirus pandemic and its impact on state economies and budgets. According to the Center on Budget and Policy Priorities (CBPP), states will average a 20 percent budget shortfall in FY 21. Expenses related to the pandemic, including the rollout of the vaccine, will continue to rise, while revenues decrease, causing significant uncertainty as states look to address budget shortfalls and aid in economic recovery.

Other top issues we are likely to see in state legislatures across the country include police and criminal justice reform, data privacy, redistricting, and education. While many states enacted police and criminal justice reforms in 2020, either through regular session or through special session (Oregon and Virginia, for example), we expect additional measures to be enacted in 2021. Data privacy will be another big issue for states. Following on the heels of California passing the California Consumer Privacy Act in 2018, over two dozen states introduced their own privacy bills in the 2020 legislative session. Most of these bills did not pass, but we expect similar legislation to be introduced in 2021. Redistricting will be another priority in 2021 with the completion of the 2020 Census. Finally, as the coronavirus continues to impact our education system, states will look to mitigate learning loss and the digital divide. Expanding broadband access will likely be a top priority for states.

McGuireWoods Consulting has prepared analyses of what to expect in the 2021 legislative sessions, in the following states — Florida, Georgia, Illinois, North Carolina, South Carolina and Texas, plus an overview on how to work effectively with transition teams and an update from our national multistate strategies team for a look ahead to 2021.

View a full list of state legislative session dates here.

McGuireWoods Consulting’s National Education Team

With significant political change at the state and national level, it is important to think ahead about your strategy in managing this changing landscape. McGuireWoods Consulting’s national education team provides guidance to clients on issues that migrate beyond a state border. We work with groups representing the nation’s governors, attorneys general and state legislative groups, and these officials play an increasing role in shaping education policy. In addition, MWC tracks bills and regulations throughout the country and is informed about key issues across all 50 states.

Summary

On December 21, 2020, Congress released and passed its long-awaited coronavirus relief package, which was part of a nearly 5,600 page 2021 government appropriations bill. The $900 billion COVID-19 stimulus is the result of weeks of intense bipartisan negotiations. Congress voted to approve the bill on Monday night, and President Trump is expected to sign it into law shortly. There are significant changes to the CARES Act and additional funding for several industry sectors. McGuireWoods Consulting has assembled an outline of what the bill includes, and does not include, as well as how it differs from the CARES Act, especially as it relates to the Paycheck Protection Program (PPP).

The Paycheck Protection Program

  1. $284 billion has been allocated for the new batch of PPP loans. Applicants may apply for their first or second loan.
  2. Creates a second loan from the Paycheck Protection Program, called a “PPP second draw” loan, for smaller and harder-hit businesses with a maximum loan amount of $2 million.
    • Recipients of a second PPP loan will need to meet three additional criteria. First, they must have 300 or fewer employees, down from 500; second, they must have used or will use the entirety of their first PPP loan; and third, they must have seen gross receipts decline by at least 25 percent for any quarter in 2020 compared to that same quarter in 2019.
  3. Loan terms. Borrowers may receive a loan amount of up to 2.5X the average monthly payroll costs in the one year prior to the loan or the calendar year. No loan can be greater than $2 million.
    • Seasonal employers may calculate their maximum loan amount based on a 12-week period beginning February 15, 2019 through February 15, 2020.
    • New entities may receive loans of up to 2.5X the sum of their average monthly payroll costs.
    • Entities in industries assigned to NAICS code 72 (Accommodations and Food Services) may receive loans of up to 3.5X average monthly payroll costs.
    • Businesses with multiple locations that are eligible entities under the initial PPP requirements may employ not more than 300 employees per physical location.
    • Waiver of affiliation rules that applied during initial PPP loans apply to a second loan.
    • An eligible entity may only receive one PPP second draw loan.
    • Fees are waived for both borrowers and lenders to encourage participation.
    • For loans of not more than $150,000, the entity may submit a certification attesting that the entity meets the revenue loss requirements on or before the date the entity submits their loan forgiveness application and non-profit and veterans organizations may utilize gross receipts to calculate their revenue loss standard.
    • Borrowers receive full loan forgiveness if they spend at least 60 percent of their PPP second draw loan on payroll costs over a time period of their choosing between 8 weeks and 24 weeks.
    • Includes set-asides to support first-time PPP borrowers with 10 or fewer employees, second-time PPP borrowers with 10 or fewer employees, first-time PPP borrowers who have been made newly eligible, and second-time returning PPP borrowers. Additionally, provides for a set-aside for loans made by community lenders.
    • Publicly traded companies are no longer eligible for PPP loans.
  4. Loan forgiveness. Borrowers of a PPP second draw loan would be eligible for loan forgiveness equal to the sum of their payroll costs, as well as covered mortgage, rent, and utility payments, covered operations expenditures, covered property damage costs, covered supplier costs, and covered worker protection expenditures incurred during the covered period. The 60/40 cost allocation between payroll and non- payroll costs in order to receive full forgiveness will continue to apply.

Other Business Relief Appropriations

  1. $20 billion for the Economic Injury Disaster Loan (EIDL) Advance program.
  2. $3.5 billion for continuing the SBA Section 7(a) Debt Relief program.
  3. $2 billion to enhance SBA’s core programs, including 7(a), Community Advantage, 504, and the Microloan program.
  4. $12 billion in Community Development Financial Institution and Minority Depository Institution targeted emergency investments to help low-income and minority communities.
  5. Extends the period by which employers can defer payroll taxes to April 30, 2021 and paid back by January 1, 2022.
  6. Extends both the Pandemic Unemployment Assistance (PUA) program and Pandemic Emergency Unemployment Compensation (PEUC) program.

Key CARES Act Programs For Individuals

  1. $120 billion for a 16-week extension of all unemployment assistance, with a $300 supplement per week.
    • Extended to March 14, 2021.
  2. Provides economic impact payments of $600 for individuals making up to $75,000 per year and $1,200 for couples making up to $150,000 per year, as well as a $600 payment for each dependent.
  3. An extension of the eviction moratorium until January 31 and $25 billion for emergency rental assistance.
  4. Extends credits for paid sick and family leave through March 2021.
  5. An extension and expansion of the Employee Retention Tax Credit (ERTC).
    • The ERTC is extended until July 1.
    • Increases the credit rate from 50 percent to 70 percent.
    • Raises the limit on per-employee creditable wages from $10,000 for the year, to $10,000 for each quarter.
    • Expands eligibility for the credit by reducing the required year-over-year decline in gross receipts from 50 percent to 20 percent.
    • Modifies the threshold for treatment as a ‘large employer’ by increasing the 100-employee delineation for determining the relevant qualified wage base to employers with 500 or fewer employees.

Industry-Specific Provisions

Transportation: $45 billion

  1. $15 billion for the Airline Payroll Support Program.
  2. $14 billion for transit agencies.
  3. $10 billion for state highways.
  4. $1 billion for airline contractor payroll support.
  5. $2 billion for airports and airport concessionaires.
    • No less than $200 million will be available to sponsors of primary airports to provide relief from rent and minimum annual guarantees to on airport car rental, on-airport parking, and in-terminal airport concessions.
      • “The sponsor shall provide relief from rent and minimum annual guarantee obligations to each eligible airport concession in an amount that reflects each eligible airport concession’s proportional share of the total amount of the rent and minimum annual guarantees of all the eligible airport concessions at such airport.”
  6. $2 billion for the private motorcoach, school bus, and ferry industries.
  7. $1 billion for Amtrak.

Live Venues: $15 billion

  1. Grants for shuttered live venues, theaters, museums, and zoos.
    • $2 billion will be set aside for eligible entities that employ 50 full-time employees or fewer.

Agriculture: $26 billion

  1. $13 billion in direct aid to farmers who have suffered losses due to the coronavirus.
  2. Increases the monthly SNAP benefit level by 15 percent based on the June 2020 Thrifty Food Plan through June 30, 2021.
  3. $400 million for the Emergency Food Assistance Program.
  4. $100 million in additional funding for specialty crop farmers and the Specialty Crop Block Grant Program.
  5. $100 million to support local farmers, farmers markets, and value-added production for farmers and outlets.

Education/Schools: $82 billion

  1. $54.3 billion for the Elementary and Secondary School Emergency Relief Fund (Public K-12 schools).
  2. $22.7 billion for the Higher Education Emergency Relief Fund.
  3. $20 billion distributed to all public and private non-profit institutions of higher education.
  4. $4.05 billion for the Governors Emergency Education Relief Fund.
  5. $1.7 billion to Minority Serving Institutions, including:
    • $727 million to historically black colleges and universities.
    • $320 million to Hispanic Serving Institutions.
    • $242 million to the Strengthening Institutions Program.
  6. $908 million to for-profit colleges to provide financial aid grants to students.
  7. $818.8 million in relief for outlying areas and the Bureau of Indian Education.

Major Provisions Excluded From The Package

  1. $160 billion for state and local governments.
  2. Business liability protection.

For a complete look at federal and state action related to the coronavirus, visit McGuireWoods Consulting’s Coronavirus (COVID-19) Facts and Resources website.