This week in Washington: President sends budget request to Congress.

House

House Passes Bill to Extend Medicare Sequester Moratorium

On April 13, the House of Representatives voted 384-38 to pass a bill that would eliminate the 2 percent cut to all Medicare payments, known as sequestration, until the end of 2021. In addition, the legislation would make several changes to the rural health clinic provisions included in the Consolidated Appropriations Act of 2021. The bill would increase FY 2030 sequester cuts to pay for the change. The bill was passed by the Senate last month, and President Biden is expected to sign it into law.

House Passes Eight Health Care Bills

This week, the House of Representatives passed the following eight bills:

  • H.R. 172, the “United States Anti-Doping Agency Reauthorization Act of 2021,” was introduced by Reps. Mike Thompson (D-CA), Bill Johnson (R-OH) and Diana DeGette (D-CO). The bill would extend and increase the authorization level for the U.S. Anti-Doping Agency (USADA) through fiscal year 2030, empower the agency to encourage a positive sporting environment for young athletes by providing educational materials on sportsmanship, character building and healthy performance, and would improve anti-doping efforts in the United States by encouraging federal agencies to coordinate and share information with USADA to prevent the use of performance-enhancing drugs and methods. The bill passed on the House floor by a vote of 381-37.
  • S. 578, the “Food Allergy Safety, Treatment, Education, and Research Act of 2021” or the “FASTER Act of 2021,” was introduced by Sen. Tim Scott (R-SC). The bill would amend the Federal Food, Drug, and Cosmetic Act (FFDCA) to include sesame as a major allergen. The bill would also require the Department of Health and Human Services (HHS) to report specific recommendations and strategies to reduce risks related to food allergies, including recommendations for the development of a regulatory process to add additional foods or ingredients to the list of major food allergens. The bill passed on the House floor by a vote of 415-11.
  • H.R. 189, the “John Lewis NIMHD Research Endowment Revitalization Act,” was introduced by Reps. Nanette Diaz Barragan (D-CA), Earl “Buddy” Carter (R-GA) and Van Taylor (R-TX). The bill authorizes the National Institute on Minority Health and Health Disparities to facilitate research on minority health disparities through research endowments at current or former centers of excellence. The bill passed on the House floor by voice vote.
  • H.R. 941, the “Timely ReAuthorization of Necessary Stem-cell Programs Lends Access to Needed Therapies Act of 2021” or the “TRANSPLANT Act of 2021,” was introduced by Reps. Doris Matsui (D-CA), Gus Bilirakis (R-FL) and Chellie Pingree (D-ME). The bill would reauthorize the C.W. Bill Young Cell Transplantation Program and the National Cord Blood Inventory to facilitate lifesaving bone marrow and umbilical cord blood donations to help patients suffering from blood cancers, disorders and diseases. The bill would also require HHS to review the state of science related to adult stem cells and birthing tissues for the purpose of potentially including in the program, and would require the National Institutes of Health, in consultation with other agencies, to further the field of regenerative medicine and commission a report by the Comptroller General on the state of the regenerative medicine workforce. The bill passed on the House floor by a vote of 415-2.
  • S. 164, the “Advancing Education on Biosimilars Act of 2021,” was introduced by Sens. Margaret Wood Hassan (D-NH) and Bill Cassidy (R-LA). The legislation would help provide patients and health care providers with greater information about biologics and biosimilars by requiring the Food and Drug Administration (FDA) to establish a public website with educational materials, including what products are interchangeable, as well as how to report any adverse events. The bill would also support the development of continuing education programs for health care providers about biologics. The bill passed on the House floor by a vote of 412-8.
  • S. 415, the “Ensuring Innovation Act,” was introduced by Sens. Bill Cassidy (R-LA), Tina Smith (D-MN) and Roger Marshall (R-KS). The legislation clarifies that five-year new chemical entity eligibility is only available for drugs containing no active component that has previously been approved in the United States. This would help reduce drug costs and improve access to more affordable generic drugs by ensuring that market exclusivity, which can delay generic drugs from entering the market, is only made available to truly innovative products. The bill passed on the House floor by voice vote.
  • H.R. 1002, the “Debarment Enforcement of Bad Actor Registrants Act of 2021” or the “DEBAR Act of 2021,” was introduced by Rep. Bob Latta (R-OH). The bill would amend the Controlled Substances Act to allow the attorney general to prohibit any registrant from manufacturing, distributing or dispensing a controlled substance or a List I chemical if that registrant meets or has met any of the conditions for suspension or revocation of registration, or has a history of prior suspension or revocations. The bill passed on the House floor by a vote of 411-5.
  • H.R. 1899, the “Ensuring Compliance Against Drug Diversion Act,” was introduced by Rep. Morgan Griffith (R-VA). The bill terminates the controlled substance registration of any registrant if the registrant dies, ceases legal existence, discontinues business or professional practice, or surrenders registration. A registrant who ceases legal existence or discontinues business is required to notify the Drug Enforcement Administration (DEA). Registrants must receive written consent from DEA in order to assign or transfer a registration, and they are also required to return certain documentation if a registrant’s work is discontinued. The bill passed on the House floor by a vote of 412-5.

Two of the bills, the Advancing Education on Biosimilars Act and the Ensuring Innovation Act, previously passed the Senate and are on their way to President Biden’s desk.

House Members Divided on Fentanyl Analogue Scheduling

In an April 14 Energy and Commerce Committee Subcommittee on Health hearing, several House Republicans expressed support for legislation that would extend or make permanent the Schedule 1 classification for fentanyl-related substances. On the other hand, some Democrats expressed support for a bill that would use harm-reduction strategies to address the fentanyl crisis.

In 2018, the Trump administration temporarily scheduled fentanyl-related substances as Schedule 1, which means that these substances are classified as illicit drugs with high potential for abuse and no potential medical use. Congress extended this classification in 2020 but it is set to expire on May 6. If the deadline is not extended past May 6, the Drug Enforcement Agency (DEA) will schedule individual fentanyl analogues once they are discovered, as was done prior to the Schedule 1 designation. Stakeholders express concern that allowing the Schedule 1 designation to end would make it more complicated to prosecute individuals for fentanyl distribution.

For more information on the hearing, click here.

Rep. Kevin Brady to Retire

On April 13, Rep. Kevin Brady (R-TX), ranking member and former chair of the House Ways and Means Committee, stated that he would not be running for reelection in 2022. He is currently serving his 13th term.

Senate

Senate Finance Hearing to Consider Nominees for CMS Administrator and HHS Deputy Secretary

On April 15, the Senate Finance Committee held a hearing to consider the nominations of Andrea Joan Palm to be deputy secretary of Health and Human Services (HHS) and Chiquita Brooks-LaSure to be administrator of the Centers for Medicare and Medicaid Services (CMS). Member questions centered on waivers, telehealth, equity, border policy, behavioral health and drug pricing.

Bipartisan Bill Would Require Cost-Free Breast Cancer Diagnostic Tests

On April 13, the Access to Breast Cancer Diagnosis Act of 2021 was reintroduced by Sens. Jeanne Shaheen (D-NH) and Roy Blunt (R-MO). The bill would require group health plans and individual insurers to cover diagnostic breast cancer tests that may be needed following an additional screening. The legislation was previously introduced in the last Congress. Under current law, plans are required to provide breast cancer screenings at no cost. Approximately 10 percent of breast cancer screenings require follow-up testing, which can include mammograms, ultrasounds and MRIs and can cost patients hundreds or thousands of dollars and result in delayed treatment.

Senators Ask HHS Secretary Becerra to Enforce Hospital Price Transparency Rule

On April 13, Senate Energy and Commerce Committee members, including Chair Frank Pallone (D-NJ), ranking member Cathy McMorris Rodgers (R-WA), Health Subcommittee Chairwoman Anna G. Eshoo (D-CA) and Health Subcommittee ranking member Brett Guthrie (R-KY) wrote a letter to Health and Human Services (HHS) asking Secretary Xavier Becerra to ensure that hospitals are complying with the Hospital Price Transparency Rule.

The Hospital Price Transparency Rule, which went into effect Jan. 1, 2021, requires hospitals to make public the list of standard charges for items and services in a consumer-friendly format. The charges that need to be made public include gross charges, discount cash price, payer-specific negotiated charges and de-identified minimum and maximum negotiated charges for all items and services. HHS can issue warnings, request an action plan and issue penalties for hospitals found to be noncompliant with the rule.

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

This week in Washington: House and Senate return from congressional work period.

House

House Energy and Commerce Hearing on Substance Use to Consider 11 Bills

On April 14 at 10:30 a.m., the House Energy and Commerce Committee Subcommittee on Health will hold a hearing titled “An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America.” The subcommittee will discuss the 11 bills listed below.

  • H.R. 654, the “Drug-Free Communities Pandemic Relief Act”
  • H.R. 955, the “Medicaid Reentry Act of 2021”
  • H.R. 1384, the “Mainstreaming Addiction Treatment Act of 2021”
  • H.R. 1910, the “Federal Initiative to Guarantee Health by Targeting Fentanyl Act”
  • H.R. 2051, the “Methamphetamine Response Act”
  • H.R. 2067, the “Medication Access and Training Expansion Act”
  • H.R. 2355, the “Opioid Prescription Verification Act”
  • H.R. 2364, the “Synthetic Opioid Danger Awareness Act”
  • H.R. 2366, the “Support, Treatment, and Overdose Prevention of Fentanyl Act of 2021”
  • H.R. 2379, the “State Opioid Response Grant Reauthorization Act”
  • H.R. 2405, the “Streamlining Research on Controlled Substances Act”

Appointments to State All Payer Claims Databases Advisory Committee Announced

On March 29, Gene L. Dodaro, Comptroller General of the United States and head of the U.S. Government Accountability Office (GAO), announced the appointment of six members to the newly created State All Payer Claims Databases Advisory Committee (SAPCDAC). SAPCDAC was created in December 2020 to make recommendations to the Secretary of Labor on the standardized format and associated guidance for the voluntary reporting by group health plans to State All Payer Claims Databases. The newly appointed members are Niall Brennan, Cheryl Damberg, Emma Hoo, Frederick Isasi, Mike Kapsa and Josephine Porter.

Senate

CHOICE Act Reintroduced

On March 26, Sens. Sheldon Whitehouse (D-RI) and Sherrod Brown (D-OH) reintroduced the Consumer Health Options and Insurance Competition Enhancement (CHOICE) Act. The bill would require the Department of Health and Human Services (HHS) to create a public option to compete on the individual market and allow HHS to negotiate drug prices and provider reimbursement rates.

The CHOICE Act is one of several public option plans being developed in Congress. Sens. Mark Warner (D-VA), Tim Kaine (D-VA) and Michael Bennet (D-CO) recently reintroduced their version, called the Medicare-X Choice Act. The Democratic senators stated they planned to use these proposals to reach a consensus legislation. Rep. Jan Schakowsky (D-IL) also introduced companion legislation in the House.

Senate Parliamentarian Rules Democrats Have More Chances at Budget Reconciliation

On April 5, the Senate parliamentarian ruled that the reconciliation process can be used multiple times on the same underlying budget resolution, meaning that Democrats have at least one more chance to pass legislation via a simple majority this year. Senate Majority Leader Chuck Schumer (D-NY) had asked the parliamentarian to confirm that the process could be used again if the 2021 budget resolution was revised. Democrats already used the budget fast-track process to enact the American Rescue Plan and the COVID-19 relief package, and will likely try to use it for President Biden’s infrastructure bill. The parliamentarian’s answer means that Democrats could potentially split the infrastructure bill into two, with the second section likely to include health care coverage expansions and drug pricing measures.

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

In This Issue: Department of Education hosts National Safe School Reopening Summit, Senate HELP Committee holds confirmation hearing for Cindy Marten, and earmarks make their return to Congress.

National Safe School Reopening Summit

On March 24, 2021, the Department of Education hosted the National Safe School Reopening Summit. According to the Department of Education, the summit is part of a larger effort to help support and provide resources to schools as they work to reopen. In his opening remarks at the summit, Secretary of Education Miguel Cardona noted that 45 percent of elementary and middle schools are offering in-person learning. He also noted that only 28 percent of Black students, 33 percent of Latino students, 15 percent of Asian students, and 50 percent of white students are attending in-person school. Secretary Cardona highlighted the $130 billion appropriated under the American Rescue Plan to help schools reopen. CDC Director Rochelle Walensky also gave opening remarks, discussing the CDC’s updated guidelines for safe practices and recommendations for students. She said the goal is for students to return to the classroom using science and research-based practices.

The summit consisted of three panels: (1) Lessons from the Field — Implementing CDC’s K-12 Operational Strategy to Keep Students, Educators, and Staff Safe; (2) Technical Assistance from CDC and ED: Implementing CDC’s Guidance to Keep Students, Educators, and Staff Safe; (3) Lessons from the Field — Supporting All Students: Addressing the Academic, Social, and Emotional Needs of Students with a Focus on Equity. President Joe Biden and Vice President Kamala Harris also provided remarks at the summit. We have provided the key takeaways from the summit below. To watch the summit in its entirety, please click here.

Lessons from the Field — Implementing CDC’s K-12 Operational Strategy to Keep Students, Educators, and Staff Safe

The first panel consisted of members of the reopening teams from the Cleveland School District as well as the New York City School District. A common theme for both groups was a focus on transparency, open communication, and involvement of all stakeholders as critical components to successfully reopening schools. Both school districts paid particular attention to the social and emotional needs of both their students and staff, providing programs and professional development to address these needs. Finally, from a facilities point of view, Cleveland and New York put health and safety as their top priority in their mission to reopen schools.

Technical Assistance from CDC and ED: Implementing CDC’s Guidance to Keep Students, Educators, and Staff Safe

The second panel of the summit consisted of representatives from the CDC as well as the Department of Education to discuss safety guidelines for reopening and maintaining in-person school. Greta Massetti from the CDC spoke on how research has shown that the current policies in place have been working and provided a summary on the updated guidance on social distancing policies. Donna Harris-Aikens, Senior Advisor for Policy and Planning at the Department of Education spoke on Volume 1 of the Department’s guidance for safe reopening of schools, reiterating that current measures, if employed, work and schools should be diligent following the guidelines put in place by the CDC and the Department of Education.

Lessons from the Field — Supporting All Students: Addressing the Academic, Social, and Emotional Needs of Students with a Focus on Equity

The final panel consisted of members of the Cajon Valley Union School District and the Tulsa School District speaking to what they have been doing to meet the social and emotional needs of their students and staff. Cajon Valley has shifted their priorities to develop happy kids, in healthy relationships on a path to gainful employment. In doing so, they have changed their approach to teaching students and the community. The message was clear that knowing student and family needs and a focus on social and emotional learning (SEL) was the top priority of the school district.

The Tulsa School district made a point to mention that SEL is a lever for equity and their focus was to create relational and safe environments. Their big takeaway from the past year is the improvement in communication and support, sharing what has worked and not worked, and making sure teachers’ voices are heard.

President Joe Biden, Vice President Kamala Harris, and Secretary Cardona’s Remarks

Secretary Cardona’s closing comments focused on how the Department of Education is looking to be a partner and provide resources. Cardona made a point to introduce the Summer Learning and Enrichment Collaborative, which is a partnership with the National Governors Association and CCSSO to create impactful programs.

President Biden stated that $81 billion of the $130 billion from the American Rescue Plan will hit states on March 24, 2021. With funds available now, the President wants them used quickly and effectively.

Senate HELP Confirmation Hearing for Cindy Marten

On March 24, 2021, the Senate Health, Education, Labor, and Pensions Committee held a hearing to consider the nomination of Cindy Marten to be Deputy Secretary of the U.S. Department of Education. Marten, who was formerly superintendent of San Diego Unified, is expected to receive bipartisan support from the committee.

Ranking Member Richard Burr (R-NC) said he is “inclined to support [Marten’s] nomination,” despite “many reservations.” Chairwoman Patty Murray (D-WA) said she expects to hold a committee vote advancing Marten’s nomination as soon as possible. Barring any unforeseen issues, Marten is expected to be confirmed by the full Senate.

During the confirmation hearing, several key themes emerged, including (1) addressing learning loss; (2) reopening schools; (3) addressing inequities and the achievement gap; and (4) the importance of community college and career and technical education. Other issues discussed included school choice, helping students with disabilities, teacher shortages, and college affordability and student loans.

Addressing Learning Loss

Chairwoman Murray, Sen. Tim Kaine (D-VA), and Sen. Chris Murphy (D-CT) discussed the critical need to mitigate learning loss due to the pandemic. Chairwoman Murray asked Marten what steps the Department of Education will take to identify and address learning loss. Marten said that the American Rescue Plan will provide critical investment to help address learning loss and detailed what San Diego Unified is doing this summer to create summer enrichment programs for students. Sen. Kaine emphasized that he hopes federal aid will help address learning loss and local education agencies will use the funds to “experiment” with the school calendar and summer programs for this summer and 2022. Marten said she appreciated Sen. Kaine’s forward thinking and agreed that forward planning is important. Throughout her questioning, Marten also highlighted the need for social and emotional support as students return to the classroom.

In regards to assessments, Sen. Burr asked Marten about waiving federal testing requirements, since federal accountability requirements have been waived. Marten stressed that assessments are essential for making the best decisions about our students.

Reopening Schools

Sens. Burr, Romney (R-UT), and Collins (R-ME) pressed Marten on opening schools. Sen. Romney asked Marten why public schools were closed, but private schools remained open in San Diego. Marten emphasized that school reopening decisions were based off the advice of numerous stakeholders, including the CDC, local health departments, and other local experts. In response, Sen. Romney said he hoped that the Department of Education would provide guidance on reopening schools and not leave it to the individual school districts to “get [their] own experts.”  Sen. Collins asked Marten if she agreed with the CDC school reopening guidance and what she will do in her new role, if confirmed, to ensure schools open this fall. Marten said she appreciated the guidance of the CDC and believes the investments from the American Rescue Plan will help ensure schools are open in the fall.

Addressing Inequities and the Achievement Gap

Chairwoman Murray said we need to commit addressing inequitable school funding and providing rigorous curriculum. She asked Marten how she plans to address long-standing inequities. Marten replied that she will implement the best, evidenced-based practices. Sen. Murkowski (R-AK) asked Marten how she addressed the achievement gap as superintendent of San Diego Unified. Marten noted that San Diego Unified is a positive outlier in Black and Latino student performance.

Importance of Community College and Career and Technical Education (CTE)

Sens. Kaine, Hassan (D-NH), and Marshall (R-KS) emphasized the importance of community college and career and technical education (CTE). Sen. Hassan pointed to her legislation, the Gateway to Careers Act, which would help students earn income while they earn educational credits. The legislation would also provide wrap around services.  She asked if Marten agreed that these types of programs are important. Marten said she agreed.

Federal Earmarks

Summary below provided by Ryan Bernstein, senior vice president on McGuireWoods Consulting’s federal public affairs team

Earmarks are making a return to Congress. House Democrats have announced their intention to bring back earmarks after a moratorium lasting a decade. Removing the moratorium will give more power to individual lawmakers, especially Congressional members on the appropriations committees and the committees drafting the new infrastructure bill. It also provides stakeholders an opportunity to advocate for provisions and shape policy that is not necessarily included in the President’s budget.

Earmarks are defined as any congressionally directed spending, limited tax benefit, or limited tariff benefit if it benefits a specific entity or state, locality, or congressional district other than through a statutory or administrative formula or competitive award process.

During the 112th Congress (2011-2012), Congress began to observe an “earmark moratorium” or “earmark ban” that prohibited members from requesting a congressional earmark. The ban is not codified in House or Senate rules and is not enforceable by points of order, but instead has been extended by every Congress through each party’s internal rules and committee protocols.

New Appropriations Earmark Guidelines

In February 2021, House Appropriations Chair Rosa DeLauro (D-Conn.) announced the House Democratic Appropriations Committee would restore earmarks and rebrand them as “Community Project Funding.” This move will give lawmakers a greater ability to direct money to specific projects rather than allow the agencies, through the President’s Budget, to dictate the flow of appropriated money.

The new reforms announced by Chair DeLauro include:

  1. Increased Transparency:
    • Members are required to post every request online simultaneously with their submission to the Appropriations Committee.
    • The Appropriations Committee will release the list of projects funded before the full committee votes on the legislation.
    • Members must certify that they, their spouse, and their immediate family have no financial interest in the projects they request.
  2. Ban on For-Profit Recipients:
    • Members may not direct funding to for-profit grantees. Members may request funding for State or local governmental grantees and for eligible non-profits.
  3. Cap on Overall Funding:
    • “Community Project Funding” may constitute no more than 1 percent of discretionary spending.
  4. Enhanced Auditing:
    • The Government Accountability Office (GAO) will be required to audit a “sample” of community project funding and report its findings to Congress.
  5. Demonstrated community support:
    • Members must provide evidence of community support that were compelling factors in their decision to select the requested projects.

The new reforms build on the current standards, which include:

  1. No Member Financial Interest:
    • Members are not allowed to pursue Community Project Funding to further his or her financial interest, or that of his or her spouse. Each Member requesting Community Project Funding must certify that there is no such interest.
  2. Request in Writing:
    • Members requesting Community Project Funding must do so in writing including the name and location of the intended recipient, and the purpose of the spending item.
  3. Committee Consideration:
    • When reporting legislation containing Community Project Funding, a Committee must identify each item in the corresponding committee report or joint explanatory statement, and make it publicly available online.
  4. Disclosure Before Floor Consideration:
    • Rules prohibit a vote on a bill or a vote on adoption of a conference report, unless the chair of the committee in question certifies that a complete list of Community Project Funding has been publicly available for at least 48 hours.
  5. Point of Order Against New Projects in Conference Reports:
    • A point of order may be raised against a provision of the conference report if it includes Community Project Funding that was not included in either the House or Senate bills.

Deadlines for Appropriations Requests

Each Member office typically sets a deadline for constituents to submit their appropriations requests. Deadlines vary by member offices, but the deadlines are usually around the end of March. This will give time for each member to submit their appropriations request to the Appropriation Subcommittees.

This year, however, the submission deadlines will be later this spring because the President’s budget will be delayed. The President will likely release his “skinny” budget mid-April and his full budget is expected in late May or June. Members and committees prefer to have the President’s budget before they start finalizing the budget requests. However, it is important for all stakeholders to submit their budget requests as soon as possible to allow members and committees time to process the increased member requests under the new earmark guidelines.

American Jobs Plan

On Wednesday, March 31, 2021, the Biden Administration released their American Jobs Plan, which constitutes the first of two sections of a larger infrastructure package. This section contains roughly $2.5 trillion in federal spending over eight years, with the majority of that coming in one-time investments.

Takeaways

  • $621 billion for surface transportation modernization, including $115 billion for bridges, roads, highways and main streets and $20 billion for road safety
    • Modernizes 20,000 miles of roadway
    • Fixes the 10 most economically significant bridges in need of repair, plus the worst 10,000 smaller bridges across the U.S.
    • Includes $25 billion for airports and $17 billion for ports/waterways
  • $174 billion for Electric Vehicles (EV)
    • Establishes grant and incentive programs to build a national network of 500,000 EV chargers by 2030
    • Gives consumers point-of-sale rebates and tax incentives to buy American-made EV
  • $111 billion for safer drinking water to replace all lead pipes and service lines in America
  • $100 billion for high-speed broadband for 100 percent coverage
  • $100 billion to upgrade the U.S. power infrastructure, including tax credits for certain transmission line upgrades
  • $213 billion to “produce, preserve, and retrofit more than two million affordable and sustainable places to live”
  • $137 billion for public schools, community colleges and child-care facilities
  • $100 billion for workforce development
  • $400 billion for “expanding access to quality, affordable home- or community-based care for aging relatives and people with disabilities

Made in America Tax Plan

Concurrently, the Biden Administration released their Made in America Tax Plan to help fund the infrastructure proposal. The plan consists of corporate tax changes which the administration suggests will raise over $2 trillion within 15 years.

Takeaways

  • Sets corporate tax rate at 28 percent
    • The 2017 Tax Cuts and Jobs Act set the rate at 21 percent
  • Sets global minimum tax rate for U.S. multinationals at 21 percent
    • Eliminates a rule which allows U.S. companies to pay zero taxes on first 10 percent of return when they locate investments in foreign countries
  • Contains language “proposing to encourage” other countries to adopt strong minimum taxes on corporations
    • Denies deductions to foreign corporations on payments that “strip profits out of the U.S.” if they are headquartered in a country which does not adopt a strong minimum tax
    • Commitment to engage with multilateral negotiations on global minimum tax rate
  • Prevent U.S. companies from claiming tax havens as their residence
  • Prevent companies expense deductions for taking jobs abroad
    • Hand-in-hand with tax credit to support “onshoring” jobs
  • Eliminates tax incentives under 2017 tax law for “Foreign Derived Intangible Income” (FDII)
    • All FDII deduction repeal revenue will go towards U.S. Research and Development
  • 15 percent minimum tax on corporations “book income” (income used to report profits to investors)
  • Eliminates all tax advantages for fossil fuels and other polluting industries
    • Restores payments from polluters into the Superfund Trust Fund
  • Strengthen IRS’ capacity to audit large corporations
    • Paired with broader enforcement initiative addressing tax evasion which the Biden Administration will release “in the coming weeks”

Congress will spend the next several months drafting legislation that largely reflects the proposal announced today by President Biden. As the American Jobs Plan develops, McGuireWoods Consulting will continue to provide updates as we engage with the administration and Congress on the legislation.

This week in Washington: The House and Senate are in recess.

Representatives Propose a Permanent Extension of CHIP Funding
The House Energy and Commerce Committee is looking at ways to strengthen the Affordable Care Act (ACA) and expand Medicaid coverage. A proposal by Reps. Vern Buchanan (R-FL) and Lucy McBath (D-GA) to permanently extend the Children’s Health Insurance Program (CHIP) funding is under discussion as part of the committee’s agenda. CHIP is set to expire in 2027. In addition, Rep. Nanette Diaz Barragán’s (D-CA) has introduced a bill that would provide the extension in addition to letting states increase Medicaid and CHIP eligibility levels for children living in families with incomes up to 300 percent of the federal poverty level without a waiver.

Representatives Introduce Bill to Allow Medicare Advantage Plans to Reimburse Audio-Only Telehealth Visits
On March 24, Reps. Terri Sewell (D-AL) and Gus Bilirakis (R-FL) introduced “The Ensuring Parity in MA and PACE for Audio-Only Telehealth Act,” which would allow Medicare Advantage plans to count diagnoses from audio-only telehealth services towards the risk adjustment for plan years 2020 and 2021. The bill would also allow providers to be reimbursed at the same rate for audio-only telehealth and in-person visits during the pandemic. The bill is slightly different from one introduced last month in the Senate, as the Senate bill does not apply its provisions to PACE.

Pelosi States That Drug Pricing Bill May Help Pay for Infrastructure Package
On March 23, House Speaker Nancy Pelosi (D-CA) stated that the upcoming infrastructure package will likely be paid for by including Democrats’ drug pricing bill, the Lower Drug Costs Now Act of 2019 (H.R. 3). Leader Pelosi also said that the infrastructure package will include several health care provisions, including a permanent increase to the ACA tax credits. Pelosi stated that including H.R. 3 would pay for $500 billion of the cost of the infrastructure bill and could be utilized to boost ACA tax credits and make ACA coverage more affordable.

32 Democratic Senators Support Medicare Drug Price Negotiation Bill
On March 22, Sen. Amy Klobuchar (D-MN) reintroduced the Empowering Medicare Seniors to Negotiate Drug Prices Act, which would allow Medicare to negotiate drug prices. The bill has 32 Democratic cosponsors, including Sen. Joe Manchin (D-WV). Rep. Peter Welch (D-VT) introduced identical legislation in the House.

Senators Reintroduce Bill to Increase Drug Pricing Transparency
On March 23, Sens. Tammy Baldwin (D-WI), Mike Braun (R-IN), Tina Smith (D-MN) and Lisa Murkowski (R-AK) reintroduced the FAIR Drug Pricing Act. The legislation would require drug manufacturers to notify the U.S. Department of Health and Human Services (HHS) of certain price increases and submit a transparency and justification report 30 days prior to increasing the price of certain drugs by more than 10 percent in one year or 25 percent over three years. The report will require manufacturers to provide information to justify the price increase.

Senator Sanders Chaired Senate HELP Hearing on Drug Pricing
On March 23, the Senate Health, Education, Labor and Pensions (HELP) Committee Subcommittee on Primary Health and Retirement Security held a hearing titled “Why Does the US Pay the Highest Prices in the World for Prescription Drugs?” Subcommittee Chair Bernie Sanders (I-VT) and other subcommittee Democrats expressed support for allowing drug pricing negotiations and benchmarking drugs costs with other nations. Sen. Susan Collins (R-ME), the ranking Republican on the subcommittee, highlighted manufacturers’ gaming of the patent system and Sen. Lisa Murkowski (R-AK) spoke in support of her bill to make drug companies justify their price hikes. Sen. Mike Braun (R-IN) expressed support for allowing employers and the government to negotiate drug prices.

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

Stethoscope on laptop keyboard

About 475 million people worldwide have received a COVID-19 vaccine, and a return to normalcy draws closer. What remains unclear, however, is how state and federal governments will regulate and reimburse for telehealth when temporary telehealth policies expire at the end of the public health emergency.

Read on for a summary of proposed federal regulatory and legislative trends and state legislation that offer clues into telehealth’s post-pandemic future.

This week in Washington: Becerra confirmed 50-49 to be Secretary of Health and Human Services

House passes Medicare Sequester Moratorium

On March 19, the House of Representatives passed legislation to extend the Medicare sequester moratorium through the end of the year. The vote was 246-175. However, the bill is not certain to pass the Senate. This legislation was necessary to keep the cost of the American Rescue Plan, the COVID-19 relief package from triggering further cuts in spending. Rep. Steny Hoyer (D-MD) was not available to vote for the bill, but released a statement in favor of the moratorium. A group of 29 Republicans voted in favor of the legislation, while seven did not vote, and the rest opposed the bill. Republican critics of the bill said Democrats should have thought about the pandemic relief package’s effect on Medicare before passing that legislation.

Democrats Prepare for Health Care and Drug Pricing Bills for Potential Second Reconciliation Package

On March 16, House Energy and Commerce Chair Frank Pallone (D-NJ) expressed support for legislation that would allow drug pricing negotiations, impose inflation caps and address launch prices. The legislation could be included in a second reconciliation package, and Pallone expressed hope that the bills could be passed with GOP support. These bills will be discussed at the Subcommittee on Health hearing, March 23. The bills included in the hearing are:

  • H.R. 1790, the Fair Indexing for Health Care Affordability Act
  • H.R. 1796, the Health Care Enrollment Innovation Act
  • H.R. 1872, the Marketing and Outreach Restoration to Empower (MORE) Health Education Act of 2021
  • H.R. 1874, the Expand Navigators’ Resources for Outreach, Learning, and Longevity (ENROLL) Act of 2021
  • H.R. 1875, a bill to amend title XXVII of the Public Health Service Act to eliminate the short-term limited duration insurance exemption with respect to individual health insurance coverage
  • H.R. 1878, the State Health Care Premium Reduction Act of 2021
  • H.R. 1890, the Health Care Consumer Protection Act
  • H.R. 1896, the State Allowance for Variety of Exchanges (SAVE) Act of 2021
  • H.R. 340, the Incentivizing Medicaid Expansion Act of 2021
  • H.R. 1738, the Stabilize Medicaid and CHIP Coverage Act
  • H.R. 1784, the Medicaid Report on Expansion of Access to Coverage for Health Care (REACH) Act
  • H.R. 1025, the Kids’ Access to Primary Care Act of 2021
  • H.R. 66, the Comprehensive Access to Robust Insurance Now Guaranteed for Kids Act, or the CARING for Kids Act
  • H.R. 1791, the Children’s Health Insurance Program Permanency (CHIPP) Act
  • H.R. 1888, the Improving Access to Indian Health Services Act
  • H.R. 1717, a bill to amend Title XIX of the Social Security Act to make permanent the protections under Medicaid for recipients of home and community-based services against spousal impoverishment
  • H.R. 1880, a bill to amend the Deficit Reduction Act of 2005 to make permanent the Money Follows the Person Rebalancing Demonstration
  • H.R. 1390, the Children’s Health Insurance Program Pandemic Enhancement and Relief (CHIPPER) Act

More information can be found here.

Becerra Confirmed as HHS Secretary

On March 18, the Senate voted 50-49 to confirm Xavier Becerra as HHS Secretary. The vote was mostly by party line but Sen. Susan Collins (R-ME) supported Becerra’s nomination and Sen. Mazie Hirono (D-HI) did not vote.

Senators Ask for DOJ Investigation of McKinsey’s Opioid Work

In a March 15 letter, Sens. Brian Schatz (D-HI) and Richard Blumenthal (D-CT) asked Attorney General Merrick Garland to investigate consulting firm McKinsey & Co.’s work with Purdue Pharma and other manufacturers to increase sales of opioids, including OxyContin. Last month, McKinsey reached an approximately $600 million settlement with states over its role in the opioid epidemic. The letter can be found here.

Democratic Senators Sponsor Bill to Eliminate Trump Administration’s Section 1332 Guidance

On March 16, Sens. Mark Warner (D-VA), Ben Cardin (D-MD), Jeanne Shaheen (D-NH) and Tammy Baldwin (D-WI) introduced the “Protecting Americans with Preexisting Conditions Act of 2021,” which would reverse the Trump administration’s revised guidance on Section 1332 waivers which were codified as part of the 2022 exchange rule. The rule would allow policies to be sold that exclude pre-existing conditions. Over 40 Democratic senators are supporting the legislation.

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

This week in Washington: Budget reconciliation package passes and is signed into law; Becerra’s nomination for HHS secretary advances in the Senate.

House

House Passes Final Budget Reconciliation Bill
On March 10, the House passed the final version of the Senate budget reconciliation bill. One Democrat voted with the Republicans, who were united against the bill. President Biden signed the bill into law on March 11.

Medicare Sequester Moratorium
The House of Representatives will take up an extension of the Medicare sequester moratorium next week. The House Rules Committee will meet Tuesday to consider the Rule for H.R. 1868, legislation to prevent across-the-board direct spending cuts. Providers had attempted to include the extension in the final version of the American Rescue Plan but were ultimately unsuccessful. The sequester moratorium extension had been included in previous pandemic relief packages that were not subject to reconciliation requirements. According to the Congressional Budget Office, the American Rescue Plan could result in increased sequester cuts due to its high cost. It is not clear how House Republicans stand on this issue.

Energy and Commerce Holds a Hearing on the Future of Telehealth
In a March 2 hearing of the Energy and Commerce’s Subcommittee on Health titled “The Future of Telehealth: How COVID-19 is Changing the Delivery of Virtual Care,” several representatives recommended that the panel not focus on telehealth’s potential shortcomings, as telehealth has been beneficial to supporting health care services during the pandemic. Last month, the Department of Justice named telehealth as one of its False Claims Act enforcement priorities. The COVID-19 pandemic led to an expansion of Medicaid and Medicare telehealth use, and former HHS Secretary Alex Azar and HHS Secretary-nominee Xavier Becerra have stated that this will continue. Some representatives and stakeholders have expressed concern for potential fraud and overuse if telehealth continues to be widely utilized after the pandemic ends. The Energy and Commerce hearing can be found here.

Representatives Request Information on Companies’ Plans for CARES Act Funding
On March 5, the House Committee on Oversight Reform Chairwoman Carolyn Maloney, Vice Chair Jimmy Gomez and member Mark DeSaulnier sent letters to Cardinal HealthMcKesson CorporationAmerisourceBergen and Johnson & Johnson. In the letters, members requested information about the four companies’ plans to use their CARES Act tax provision to increase tax deductions for litigation costs related to opioid crisis settlements. The members expressed that this was not the intended purpose of the CARES Act, and also requested information about punitive actions taken within the companies.

Senate

Becerra’s Nomination for HHS Secretary to Advance
On March 11, the full Senate voted 51-48 to advance Xavier Becerra’s nomination to head the Department of Health and Human Services (HHS) after the Senate Finance Committee deadlocked 14-14 due to Republican opposition. This is the first time that Majority Leader Chuck Schumer (D-NY) used his powers to force a nomination out of a tied committee.

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

Earmarks are making a return to Congress. House Democrats have announced their intention to bring back earmarks after a moratorium lasting a decade. Removing the moratorium will give more power to individual lawmakers, especially Congressional members on the appropriations committees and the committees drafting the new infrastructure bill. It also provides stakeholders an opportunity to advocate for provisions and shape policy that is not necessarily included in the President’s budget.

Earmarks are defined as any congressionally directed spending, limited tax benefit, or limited tariff benefit if it benefits a specific entity or state, locality, or congressional district other than through a statutory or administrative formula or competitive award process.

During the 112th Congress (2011-2012), Congress began to observe an “earmark moratorium” or “earmark ban” that prohibited members from requesting a congressional earmark. The ban is not codified in House or Senate rules and is not enforceable by points of order, but instead has been extended by every Congress through each party’s internal rules and committee protocols.

Read more from McGuireWoods Consulting on new appropriations earmark guidelines, deadlines for appropriations requests, and infrastructure and transportation earmarks.

American Rescue Plan

On Wednesday, March 10, Congress passed President Biden’s stimulus and COVID-19 relief package, the American Rescue Plan. The $1.9 trillion package provides additional funding for vaccination efforts, COVID-19 testing, state and local governments, stimulus checks, unemployment assistance, rental assistance, education, child care, and small businesses.

Notably, the final bill is not the same bill that originally passed the House of Representatives on February 27. Because the Senate used the budget reconciliation process in order to pass the measure without Republican support, the Senate parliamentarian ruled that some provisions included in the House-passed version of the American Rescue Plan were not permissible under the Byrd Rule. (The Byrd Rule was adopted by the Senate in 1985 to protect the original intent of the budget reconciliation process and to exclude extraneous provisions. Read more from our team on the Byrd Rule here.) Some of the provisions that were excluded from the final version of the bill as a result of the Byrd Rule include a $15 minimum wage increase and several transportation related provisions. In addition to these exclusions, Senate Democrats made numerous other changes to the bill, such as decreasing the income threshold to receive a stimulus check, decreasing unemployment benefits from $400 per week to $300 per week, and decreasing the appropriation to the Education Stabilization Fund. For a summary of all the modifications the Senate made to the House bill, please see here.

The Senate passed their version of the bill on Saturday, March 6. The House voted and approved the Senate’s version on March 10. President Biden is expected to sign the measure quickly to ensure there is not a lapse in unemployment benefits, which are currently set to expire March 14. Below is a summary of key provisions in the American Rescue Plan.

Education

The legislation includes $165 billion for the Education Stabilization Fund. The Elementary and Secondary School Emergency Relief Fund (ESSER) will receive $122.7 billion for K-12 education. Of this funding, $800 million is set aside for the Secretary of Education to provide services and assistance to homeless youth. The remaining $121.9 billion will go to the state education agencies (SEAs) based off the Title I-A formula under the Elementary and Secondary Education Act (ESEA). SEAs must award at least 90 percent of the funds to local education agencies (LEAs) based off the same formula. LEAs can use the funding to help schools reopen safely, including repairing ventilations systems, reducing class size to ensure social distancing, and purchasing PPE, among other things. The legislation also requires that 20 percent of the funding that Local Education Agencies (LEAs) receive must be used to address learning loss.

The legislation also requires the SEAs to reserve a portion of their funding for specific purposes. For example, SEAs must use at least five percent of their funding to address learning loss. Additionally, at least one percent must be used for evidenced-based summer enrichment programs, and another one percent must be used for “evidence-based comprehensive” after school programs.

The Higher Education Emergency Relief (HEER) fund will receive $39.6 billion to support higher education.  Institutions of higher education must use at least half of the funding for emergency financial aid grants for students.

Finally, the Emergency Assistance to Non-Public Schools (EANS) fund, which was originally authorized by the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (CRRSAA), will receive $2.75 billion under the American Rescue Plan. While this program was originally under the Governor’s Emergency Education Relief (GEER) Fund in the CRRSAA, it is important to note that the American Rescue Plan does not include appropriations for the GEER fund.

The funds for all of the programs in the Education Stabilization Fund will remain available through September 30, 2023. For additional information on the Education Stabilization Fund and estimated allocations, please see here.

Broadband

The American Rescue plan invests $7 billion to expand broadband via the Federal Communications Commission’s (FCC) E-rate program. Additionally, $10 billion of the $350 billion for state and local governments must be set aside for infrastructure projects, such as broadband infrastructure.

Other Key Provisions

  • $350 billion to state and local governments
  • $7 billion for the Paycheck Protection Program (deadline to apply was not extended passed the current date of March 31)
  • $15 billion for Targeted Economic Injury Disaster Loans (EIDL)
  • $14 billion for vaccine distribution
  • $1,400 stimulus checks to Americans making less than $75,000
  • $300 weekly federal unemployment benefits through September 6
  • $12 billion for nutrition programs, like SNAP, WIG, and Pandemic EBT
  • $45 billion for rental and utility assistance
  • $15 billion in Child Care and Development Block Grant (CCDBG) Program through September 30, 2021
  • $3.5 billion for the Substance Abuse and Mental Health Services Agency (SAMHSA) for the Substance Abuse Prevention and Treatment and the Community Mental Health Block Grant programs

Federal Agency Nominations

On Tuesday, March 2, Dr. Miguel Cardona was sworn in as the Secretary of Education. The Senate confirmed Dr. Cardona on March 1 with a vote of 64-33. Fourteen Republican Senators, including Ranking Member of the Senate Health, Education, Labor, and Pensions Committee Richard Burr (R-NC) and Minority Leader Mitch McConnell (R-KY), voted to confirm Dr. Cardona.

Dr. Cardona, who previously served as the Connecticut Commissioner of Education, gained national attention for being a proponent of keeping schools open during the pandemic and will continue to make reopening schools a priority as Secretary of Education. At his swearing in ceremony, Cardona said he plans to convene a “national summit on safe school reopening” in March.

In February, President Biden named another notable nominee to the Department of Education. James Kvaal is Biden’s pick to serve as undersecretary of education. Kvaal served in the Obama administration, focusing on higher education policy. Kvaal also served in the Clinton administration. Kvaal must be confirmed by the Senate.

How States Are Addressing Learning Loss

Nearly one year after schools across the nation shut down in response to the coronavirus pandemic, policymakers and educators are looking at how to address one of the most consequential educational impacts of the pandemic: learning loss. According to a study published by McKinsey & Company, the average student is “likely to lose five to nine months of learning by the end of this school year,” with students of color being more acutely impacted. In response, policymakers at both the federal and state levels are taking action.

President Biden’s American Rescue Plan requires state education agencies (SEAs) and local education agencies (LEAs) to use a portion of their relief funding to address learning loss. Furthermore, more than 15 states have introduced legislation that attempts to mitigate or remedy learning loss. For example, in California SB 723 has been introduced in the attempt to establish a tutoring program that will reduce learning loss. In addition to tutoring programs, decision-makers across the country are looking at summer school and extending the school year to address learning loss. MWC has compiled a chart of how all 50 states are planning to address learning loss (either through legislation or other actions). This is an evolving issue as the federal money set aside for learning loss will help bolster the states’ ability to address learning loss, and MWC will update this chart as necessary.

Read more on education policy in McGuireWoods Consulting’s Education Policy Update.