Impeachment Trial Continues, House Returns

The House will return to Washington next week as the Senate carries on with its impeachment trial. While Senate committee hearings are largely on hold, House committees will resume business as usual and examine topics including U.S. competitiveness in critical technologies and the rise of mobile payments.

Rural Digital Opportunity Fund

On January 30, the Federal Communications Commission (FCC) will vote on final rules for the Rural Digital Opportunity Fund, a program to distribute more than $20 billion to help telecom providers expand broadband internet connections in rural areas. The funding, which will be allocated over the next ten years, will not be restricted to phone companies, but also be available to cable providers, public utilities, and wireless companies, which have traditionally been excluded from such government subsidies.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

House in Recess

The House of Representatives is in recess this week coinciding with the Martin Luther King, Jr. Day holiday. Speaker Nancy Pelosi (D-CA) spent part of the week in Germany, where she led a bipartisan congressional delegation to Auschwitz to mark the 75th anniversary of its liberation.

Impeachment Trial Continues

Today marks the fourth day of the Senate impeachment trial. The trial, which could end as soon as next week, has essentially prevented the chamber from taking up any new legislation. Senators are barred from holding hearings during the trial, as all members must be in the chamber to listen to arguments from both the President’s legal team and Democratic House impeachment managers.

World Economic Forum

President Trump and several Cabinet members spent the balance of the week in Davos, Switzerland alongside other world and business leaders at the World Economic Forum (WEF). During the summit, the US and France reached a temporary truce in the standoff over France’s digital services tax (DST). In exchange for France agreeing to delay digital taxation until the end of 2020, the US dropped its planned retaliatory tariffs on French goods worth up to $2.4 billion and dropped its proposal that a future international tax be optional for companies. The debate is not over, however. Next week, digital tax talks will continue within the global framework of the Organization for Economic Cooperation and Development (OECD) in Paris.

Comment Period Extended for Advanced Driver Assistant Systems Draft Research Test Procedures

The National Highway Traffic Safety Administration (NHTSA) announced this week that it will extend the comment period in the Advanced Driver Assistance Systems Draft Research Test Procedures from January 21 to March 6, 2020.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

Hearings/Markups

House Committee on Energy and Commerce: “A Public Health Emergency: State Efforts to Curb the Opioid Crisis”
Tuesday, January 14, 2020: The Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce held a hearing on actions taken by states to address the current opioid crisis.

Why this is important: Common themes from the witness panel of representatives from Pennsylvania, Massachusetts, West Virginia, North Carolina and Rhode Island included an appreciation for federal funding, and requests to ensure that the funding remains stable and expected for many years, reminding the members of the committee that addressing the crisis is a long, but possible, process. The witnesses noted that recovery housing for those addicted to opioids has been helpful, and that key challenges for states is the threat of a small workforce and language barriers. The witnesses noted that in each state, there has been a shift from opioids to other substances (such as alcohol), and an increase in multisubstance and fentanyl overdose deaths specifically but the federal funding can only be used for opioid addiction/treatment in most cases. Yet, programs seem to be working and federal funding remains the foundation of that success.

Find hearing updates and details here.

House Committee on Energy and Commerce: “Cannabis Policies for the New Decade”
Wednesday, January 15, 2020: The Subcommittee on Health of the Committee on Energy and Commerce held a legislative hearing to discuss federal cannabis policies, the implications of changing marijuana’s schedule listing and the potential for cannabis research.

Find an overview of the hearing here. Find hearing updates and details here.

House

Ways and Means Committee Releases Surprise Billing One-Pager
On Jan. 15, Ways and Means Chairman Richard Neal (D-MA) and ranking member Kevin Brady (R-TX) released a one-page plan to address surprise medical billing. The plan allows providers and insurers to work out billing disputes, with the option of turning to “an independent mediated negotiation process.” The approach contradicts the plan made from a compromise between Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN), House Energy and Commerce Chairman Frank Pallone (D-NJ) and Energy and Commerce ranking member Greg Walden (R-OR). The compromise made last year settles disputes by holding payments to providers to a federal benchmark payment based on median in-network rates. It would allow outside arbitration in some cases, such as for billing disputes over $750. Find the House Ways and Means plan here.

Senate

Senate Passes USMCA; Biologic Protections Entirely Dropped
On Jan. 16, the Senate voted 89-10 to pass the United States-Mexico-Canada Agreement (USMCA). The final version of the deal included the removal of provisions that would have given pharmaceutical companies a 10-year pricing monopoly on biologic drugs in Mexico and Canada. The U.S. has 12-year pricing exclusivity for biologics, and House Democrats negotiated the change after fear that keeping the provisions in the USMCA would prevent future reduction of the U.S. timeframe to less than 10 years. The House passed USMCA last year.

Read more on healthcare policy on the McGuireWoods Consulting website.

Online Platforms and Market Power, Part 5: Competitors in the Digital Economy

On Friday, the House Antitrust Subcommittee will hold a field hearing at the University of Colorado, Boulder Law School. The hearing is titled “Online Platforms and Market Power, Part 5: Competitors in the Digital Economy” and will include testimony from the CEOs of Sonos, Popsocket, and Basecamp, as well as the Vice President and General Counsel of Tile. The House will be in recess next week following the Martin Luther King Jr. holiday weekend.

Impeachment Trial

On Tuesday, the Senate will hold opening arguments in President Trump’s impeachment trial. The trial’s impeachment managers, who will serve as prosecutors, were appointed this Wednesday by Speaker of the House Nancy Pelosi (D-CA) and are led by House Intelligence Committee Chairman Adam Schiff (D-CA). In addition, the group consists of Judiciary Committee Chairman Jerry Nadler (D-NY) and Reps. Zoe Lofgren (D-CA), Hakeem Jeffries (D-NY), Val Demings (D-FA), Jason Crow (D-CO), and Sylvia Garcia (D-TX). The trial itself will begin only after the Senate agrees to take up Majority Leader Mitch McConnell’s (R-KY) rules package.

World Economic Forum

Several members of the Cabinet, led by Treasury Secretary Steve Mnuchin, will join the President next week at the World Economic Forum in Davos, Switzerland. Mnuchin will meet with his French counterpart during the summit to discuss the ongoing dispute around France’s digital services tax (DST).

Workshop on Venture Capital Investment and Antitrust Law

The Department of Justice Antitrust Division will hold a public workshop on February 12 at Stanford University focused on venture capital investment and antitrust law. The workshop will feature speeches from Assistant Attorney General Makan Delrahim as well as industry professionals and academics from Stanford’s law and business schools.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

FEMA Administrator Confirmed

The Senate confirmed Peter Gaynor on Tuesday to be Administrator of the Federal Emergency Management Agency (FEMA). Gaynor previously served as the Director of Rhode Island’s Emergency Management Agency (RIEMA) and advised Governor Gina Raimondo on emergency management and response.

USMCA Passes Senate

The Senate passed the United States-Canada-Mexico trade agreement (USMCA) this morning 89-10. Earlier in the day, it made its way through committees of jurisdiction.  On the Senate Commerce Committee, Senators Brian Schatz (D-HI) and Ed Markey (D-MA) voted against the agreement, citing its lack of environmental protections as the reason for their decision. Senator Ted Cruz (R-TX) voted in favor, but took the opportunity to criticize the agreement’s Section 230-like language. He asserted that it has allowed big tech to censor speech and expressed disappointment in its inclusion. Cruz added that US Trade Representative Robert Lighthizer told Republicans that the provision does not reform, but rather reflects, current law, so the “good news” is that current law can change.

War Powers Resolution

Senate Minority Leader Chuck Schumer (D-NY) and Senator Tim Kaine (D-VA) announced on Tuesday that they have the simple majority needed to pass a war powers resolution limiting President Trump’s ability to escalate tensions with Iran. The measure is expected to pass with support from all 45 Democrats, as well as Senators Rand Paul (R-KY), Mike Lee (R-UT), Todd Young (R-IN), and Susan Collins (R-ME), but President Trump will veto the resolution.

Future of Work Caucus

On Tuesday, Reps. Lisa Blunt Rochester (D-DE) and Bryan Steil (R-WI) launched the Future of Work Caucus with approximately a dozen members. Per a Dear Colleague, the Caucus “will discuss the growing effects of automation on the workforce, the emerging impact of artificial intelligence on society, and how technological innovation might reshape the labor market. We hope to educate policymakers, stakeholders, and the general public with the latest information and empower them to successfully navigate the disruptions that are coming and are already underway.”

Phase 1 of US-China Trade Deal Signed

The US and China signed “Phase 1” of a trade deal on Wednesday after almost two years of sparring. One lingering problem the deal addresses, but does not thoroughly resolve, relates to forced technology transfers. In order to gain access to the lucrative Chinese market, foreign companies, which in some industries are required to form joint ventures with local firms to operate, are pressured to hand over sensitive technology as a “cost” of doing business. Phase 1 forestalls until later many of these thornier structural issues at the heart of the U.S.-China trade dispute. Phase 2 is certain to be even more complicated.

Report on FAA Certification Process

A Special Committee created by Transportation Secretary Elaine Chao following the two fatal crashes of Boeing 737-MAX aircraft to examine the FAA’s certification process issued its report today. While the Committee generally praised the FAA’s certification processes, including its Organization Designation Authorization (ODA) process, and cautioned against any systemic dismantling of the FAA’s process, it made over twenty recommendations for improvements.

California Law AB 5

On January 9, Los Angeles Superior Court Judge William Highberger held that AB 5 – the California law that went into effect on January 1 and transitioned thousands of workers from independent contractors to employees – is preempted as it applies to truck drivers due to federal law as applied to motor carriers. In a separate case, US District Judge Roger Benitez on January 13 extended a temporary restraining order that prevents the state from enforcing AB 5 as it applies to truck drivers pending his ruling on the motion for a preliminary injunction. A ruling is expected in the coming days. Read more about AB 5 and its impact here in last week’s Emerging Technologies Washington Update.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

Hearings/Markups

House Committee on Energy and Commerce: “Legislation to Improve Americans’ Health Care Coverage and Outcomes”

Wednesday, January 8, 2020
The Subcommittee on Health of the Committee on Energy and Commerce held a legislative hearing on the following bills:

  • H.R. 1379, the “Ensuring Lasting Smiles Act”
  • H.R. 2271, the “Scarlett’s Sunshine on Sudden Unexpected Death Act”
  • H.R. 2468, the “School-Based Allergies and Asthma Management Program Act”
  • H.R. 2477, the “Beneficiary Enrollment Notification and Eligibility Simplification Act of 2019” or the “BENES Act of 2019”
  • H.R. 3935, the “Protecting Patients Transportation to Care Act”
  • H.R. 4801, the “Healthy Start Reauthorization Act of 2019”
  • H.R. 5534, the “Comprehensive Immunosuppressive Drug Coverage for Kidney Transplant Patients Act”

Find a memo outlining the hearing legislation here.

Courts and Healthcare Policy in 2020

Read more on healthcare policy on the McGuireWoods Consulting website.

Federal Updates

  • The White House is expected to release its FY21 budget request on February 10.
  • he Departments of Education and Health and Human Services released joint guidance on the application of the Family Educational Rights and Privacy Act (FERPA) and the Health insurance Portability and Accountability Act of 1996 (HIPAA) to student health records.
  • The Department of Education announced the opening of nominations for the Inaugural Presidential Cybersecurity Education Award — established May 2, 2019, by the President’s Executive Order on America’s Cybersecurity Workforce.

Education Policy Updates

MWC’s national education team recently wrote a series of articles highlighting national K-12 education policy, higher education policy, technology in education and school safety.

National K-12 Education Policy

Higher Education Policy

Technology in Education and School Safety

Read more on education policy on the McGuireWoods Consulting website.

congressImpeachment Trial

The Senate is continuing to move towards President Trump’s impeachment trial. Disagreements between Senate Majority Leader Mitch McConnell (R-KY) and Speaker of the House Nancy Pelosi (D-CA) have delayed the start of the trial; however, McConnell told Republican Senators on Tuesday that he has the votes to start an impeachment trial without witnesses, something Democrats have demanded. The Leader has said he will not take up any vote on USMCA or any other business until the trial has concluded.

USMCA

The Senate Health, Education, Labor and Pensions (HELP) and Commerce, Science, and Transportation Committees have scheduled sessions to markup and vote on USMCA on January 15. These votes will follow the Senate Budget Committee’s January 14 hearing.

World Economic Forum

Secretary of the Treasury Steve Mnuchin will lead the Presidential Delegation to the World Economic Forum January 20-24 in Davos, Switzerland. Secretary of Commerce Wilbur Ross, Secretary of Transportation Elaine Chao, Secretary of Labor Eugene Scalia, and US Trade Representative Robert Lighthizer are among those attending.

FY21 Budget

The White House is expected to release its FY21 budget request on February 10. Although the language is not yet disclosed, many analysts have predicted the budget will ask for increased defense spending as the Trump Administration continues its competition and pressure campaigns against China, Iran, and Russia.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

Senate Changes

Senator Kelly Loeffler (R-GA) was sworn in on Monday to succeed former Senator Johnny Isakson (R-GA), who stepped down at the end of the year amid ongoing health issues. She will sit on the Agriculture, Health, Education, Labor, and Pensions (HELP), and Veterans Affairs Committees. Senator Jerry Moran (R-KS) succeeds Isakson as Chairman of the Veterans Affairs Committee and Senator Ben Sasse (R-NE) filled Isakson’s coveted spot on the Senate Finance Committee.

USMCA

On Tuesday, the Senate Finance Committee held a vote on the United States-Mexico-Canada trade agreement (USMCA). The measure, which has already been approved by the House, passed 25-3, with Senators Pat Toomey (R-PA), Sheldon Whitehouse (D-RI), and Bill Cassidy (R-LA) voting against. Several other Senate committees will now mark up the agreement next week before it will go to the floor for a full Senate vote. USMCA will then need the President’s signature and Canada’s approval before it takes effect. Mexico has already ratified the agreement.

Carranza Confirmed to Small Business Administration

The Senate voted 88-5 on Tuesday to confirm Jovita Carranza to be Administrator of the Small Business Administration (SBA). Carranza is currently the US Treasurer and previously served in the Bush Administration as Deputy Administrator for the SBA from 2006 to 2009. During the 2016 election, Carranza was a member of the Trump campaign’s National Hispanic Advisory Council and will now become the top ranking Hispanic in the Trump Administration.

White House Hosts Greek Prime Minister

President Trump hosted Greek Prime Minister Kyriakos Mitsotakis at the White House on Tuesday. The two discussed Greece’s economic recovery, enhancing defense cooperation, and growing bilateral trade. In his remarks, Mitsotakis said, “we look forward to your positive support, we want US businesses to invest in Greece so that we can expand the economy at a rate so striking that people will really feel the difference.”

Digital Services Tax

The US Trade Representative’s (USTR) Section 301 hearing on France’s digital services tax (DST) was abbreviated due to a snowy weather forecast. In the morning, groups such as the Computer and Communications Industry Association, which represents major U.S. tech leaders, called for tough measures, including tariffs, against France in retaliation for the country’s digital services tax. Other groups, including U.S. wine wholesalers and retailers, spoke out about the detrimental impact such retaliation would have on their businesses. The hearing continued on Wednesday with representatives from other sectors, including dairy, testifying.

Standard-Essential Patents

The Department of Justice, US Patent and Trademark Office (USPTO), and National Institutes of Science and Technology (NIST) released a joint policy statement on Wednesday revising the government’s policy on standard-essential patents, asserting that patents used in essential technologies, such as 5G and Wi-Fi, will not be subject to different legal rules from other patented technologies.

Bipartisan Bills on 5G Networks Approved

The House voted on Wednesday to approve three bipartisan bills regarding 5G networks. The bills passed nearly unanimously and are designed to further engage the government in 5G policy and development both domestically abroad. On the international side, the Promoting United States International Leadership in 5G Act and the Promoting United States Wireless Leadership Act direct the Secretary of State and Assistant Secretary for Communications and Information to enhance America’s role in the international 5G standards-settings decisions. The Secure 5G and Beyond Act instructs the President to develop a strategy to protect America’s telecommunications systems and infrastructure and provide allies with the necessary support to do the same.

Read more in McGuireWoods Consulting’s Emerging Technologies Washington Update.

Final Regulations/Guidance

FDA Issues Ban on Flavored Vaping Products
On Jan. 2, the Food and Drug Administration (FDA) released guidance that bans flavored vaping products containing sweet and fruity flavors, yet allows menthol pods and a range of vape liquids to remain on the market. FDA’s guidance does not permanently ban flavored or cartridge-based e-cigarettes. It also adds that manufacturers will have 30 days to take the flavored vaping products off the shelves, and open-tank systems can be sold so long as companies go to lengths to prevent children from using the products. Each manufacturer will have to submit products for review by May 2020. Find the guidance here.

CMS: Hospital Price Transparency Requirements: CY 2020 Hospital Outpatient Prospective Payment System (OPPS) Policy Changes
On Nov. 15, the Centers for Medicare and Medicaid Services (CMS) finalized policies that follow directives in President Trump’s executive order entitled “Improving Price and Quality Transparency in American Healthcare to Put Patients First.” The rule requires facilities to disclose currently confidential rates they have negotiated with insurers, what the hospital is willing to accept from a patient and the minimum and maximum negotiated charges. The requirement would apply for all items and services and be available online in a single data file. Hospitals will have to post that information online for 300 common services in an easily understandable format. CMS will specify 70 of these services, and the rest can be chosen by the hospitals. Hospitals that do not comply could face fines of up to $300 per day. Find the final rule here. In response to comments, CMS is extending the effective date to Jan. 1, 2021, to ensure hospital compliance with these regulations.

Courts

Democratic AGs Ask the U.S. Supreme Court to Take Up Individual Mandate ACA Case This Term
Democratic attorneys general filed a petition Jan. 3 asking the U.S. Supreme Court to review a recent decision by the U.S. Court of Appeals for the 5th Circuit in Texas v. U.S. The decision affirmed a lower court’s ruling that the individual mandate of the Affordable Care Act (ACA) is unconstitutional, yet did not rule on the validity of the rest of the ACA. The appeals court sent the case back to the lower court to review what portions of the ACA could or could not be severed from the individual mandate issue. The lower court had ruled that the entire law failed. Because the 5th District’s decision causes uncertainty that may harm the health of millions of Americans—in addition to doctors, clinics, patients and the health care market—the attorneys general are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June. Filing today’s petition were the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota (by and through its Department of Commerce), Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia, as well as the governor of Kentucky.

Read more on healthcare policy on the McGuireWoods Consulting website.