On March 6, the U.S. Senate narrowly passed a $1.9 trillion bill to provide for COVID-19 financial relief, testing, treatment and vaccination. Because the Senate version of the plan differs from the version the U.S. House of Representatives passed last week, the measure now returns to the House to reconcile differences before President Joe Biden can sign it into law.

Read on for updates on Senate changes to the American Rescue Plan that healthcare providers need to know from McGuireWoods LLP and McGuireWoods Consulting.

This week in Washington: Budget reconciliation goes back to the House with changes for vote on Tuesday.


340B: 266 House Legislators Want Fines for Drug Companies

Two hundred sixty-six members of the House of Representatives have told the Department of Health and Human Services that HHS should fine drug companies that deny 340B discounts to hospitals for drugs dispensed by contract pharmacies and to make drug companies pay hospitals back for discounts that were withheld. The letter says it’s the long-held position of the Health Resources and Services Administration that drug companies must provide 340B discounts to hospitals and clinics that qualify, regardless of whether hospitals dispense the drugs themselves. The letter states there are no provisions in the statute that allow manufacturers to set conditions or impede access to 340B discounts.

The letter urges the Health Resources and Services Administration to immediately create and appoint a dispute resolution panel and write guidance or regulation to stop drugmakers from effectively converting up-front discounts into rebates.

Beginning this past summer, some drug companies stopped shipping discounted drugs to pharmacies that 340B hospitals contract to dispense drugs; other drug companies restrict shipments to one contract pharmacy for each hospital.


Senate Passes American Rescue Plan

On March 6, 2021, the Senate passed the American Rescue Plan Act on a 50-49 vote. Sen. Sullivan (R-AK) had to leave for a family emergency. The legislation is a $1.9 trillion pandemic relief package after making changes to provisions related to minimum wage, health insurance, pensions, broadband, student loans and entertainment venues. The House is expected to vote Tuesday on the Senate version.

In order to keep the support of all 50 Democrats needed to advance the package, Senate Majority Leader Charles E. Schumer brokered deals to reduce federal unemployment insurance payments from the $400 included in the House-passed package to $300 per week through Sep. 6. He also agreed to reduce the number of people who would receive direct payments by lowering the phase out for individuals from $100,000 to $80,000 and for joint filers from $200,000 to $160,000. Find more information in McGuireWoods LLP and McGuireWoods Consulting’s latest alert, Senate Passes American Rescue Plan.

Becerra Gets a Tied Vote at Finance Committee

The Senate Finance Committee voted 14-14 along party lines to advance HHS Secretary-nominee Xavier Becerra’s nomination, previewing a likely close vote on the floor as Republicans coalesce in their opposition to the California attorney general and former Democratic member of the House of Representatives.

Chairman Ron Wyden (D-OR) has submitted the notice of a tie vote to the Senate. Next, the majority leader will file a motion to discharge the nomination, with a maximum four hours of debate, equally divided between the parties. If the motion is approved, the nomination can then be placed on the Senate calendar.

While Democrats say Becerra’s experience and unbending support for the Affordable Care Act make him the perfect choice to lead HHS, Republicans oppose the nomination due to Becerra’s pro-choice position on abortion and argue he lacks qualifications for the job.

Public Option Legislation Introduced

On March 2, Sens. Tim Kaine (D-VA) and Michael Bennet (D- CO) introduced updated legislation that would phase in a public option based on the Medicare framework and would be available in the individual and small group exchanges. “The Medicare X Choice Act” would limit enrollment to consumers eligible for Affordable Care Act subsidies, meaning people who have an offer of affordable coverage would not be able to enroll. The bill also fixes the “family glitch” that currently blocks potentially millions of Americans from subsidies.

The updated bill has 11 Democratic cosponsors: Sens. Dick Durbin (IL), Tammy Duckworth (IL), Ben Cardin (MD), Debbie Stabenow (MI), Patrick Leahy (VT), Raphael Warnock (GA), John Hickenlooper (CO), Amy Klobuchar (MN), Tina Smith (MN), Jeanne Shaheen (NH) and Gary Peters (MI).

Under this legislation, a new Medicare-like option would be created and would be required to cover the Affordable Care Act’s essential health benefits. It would first be sold in the individual market states that have only one insurer and later would also be sold in high-cost areas. By 2025, the plan would be available in the small business and individual insurance marketplaces nationwide.

The new bill would expand and enhance the ACA tax credits, eliminate cost sharing for primary care services, and allow plans to reimburse hospitals at 150 percent of Medicare, up from 125 percent in the initial bill. The bill also would require Medicare to negotiate drug prices for the Medicare X option and Part D program.

Bipartisan Legislation Introduced on Rx Drug Prices

On March 3, Sens. Jeanne Shaheen (D-NH), Bill Cassidy (R-LA), Michael Bennet (D-CO) and Marco Rubio (R-FL) reintroduced “The Ensuring Timely Access to Generics Act of 2021,” which would lower drug prices through increasing competition from generic drugs through better oversight of the Food and Drug Administration’s (FDA) citizen petition process.

The citizen petition process allows interested stakeholders, including drug companies, to bring concerns to the FDA’s attention regarding pending applications. The members believe some have discovered how to exploit this process by filing citizen petitions in order to delay the approval of generic competitors and extend their patent protections. This legislation ensures the FDA’s ability to reject citizen petitions if they believe that the primary purpose of the petition is to delay the approval of an application, thereby increasing competition in the marketplace and lowering costs for patients. The bill would also set a time limit to ensure that citizen petitions are submitted in a timely manner after the petitioning party becomes aware of the information upon which their petition is based. This time limit helps avoid instances where brand-name drug manufacturers slow down the FDA review process by filing citizen petitions shortly before a generic drug is set to be reviewed by FDA. The legislation takes the additional step of requiring the Secretary of Health and Human Services (HHS) to establish procedures for referring a petitioner to the Federal Trade Commission (FTC) if they have reason to believe a petition was submitted with the primary purpose of delaying the approval of another application.

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

congressOn Feb. 27, shortly after the U.S. death toll from COVID-19 reached 500,000, the U.S. House of Representatives narrowly passed the American Rescue Plan Act of 2021. Now the Senate will consider this $1.9 trillion spending bill to provide pandemic-related assistance and relief.

Read on to learn about 15 provisions in the legislation that are particularly relevant to U.S. healthcare providers.

This week in Washington: The House votes on budget reconciliation while the Senate ponders the Byrd Rule; Senate committees hold hearings on HHS Secretary-designate Becerra’s confirmation.


House Passes COVID Relief Through Budget Reconciliation
On February 27, the House of Representatives passed 219- 212 the American Rescue Plan, H.R. 1319, a sweeping $1.9 trillion stimulus plan, and sent it to the Senate. Two Democrats joined all of the House Republicans in opposing the legislation. The bill includes $350 billion in aid to states, cities, U.S. territories and tribal governments and increases funding for vaccine distribution and coronavirus testing among many other measures, such as nutritional assistance, housing assistance and $1400 stimulus payments to millions of Americans.

Prior to consideration, a provision in the Energy and Commerce Committee’s section of the package was removed. That provision allocated $1.8 billion to assisted living centers and other congregate settings to procure tests and other supplies and for vaccines for staff. An amendment offered in House Rules Committee by the Chairman of the House Budget Committee John Yarmuth (D-KY) was incorporated in the legislative text prior to consideration by the full House.

Section by section breakdown of the legislation.

Text of the legislation and amendment made in Rules Committee.


HELP and Finance Committees Hold Hearings with HHS Secretary-designate Becerra
On Feb. 23, the Senate Health, Education, Labor and Pension Committee (HELP) held a hearing to discuss health policy with the U.S. Health and Human Services Secretary-designate, Xavier Becerra. Republican members questioned his ability to lead the department because he is not a health professional. Despite arguments, many assume he will be confirmed. Issues raised ranged from 340B policies, organ transplant policy and the Affordable Care Act. While the HELP committee held a hearing, the committee does not vote on the nomination. The Finance Committee held its hearing on Feb. 24. Many members addressed drug prices, drug shortages and the need to address mental health issues as well as positions he took as California’s attorney general in lawsuits addressing contraceptive coverage and the Affordable Care Act. His nomination is expected to be reported favorably to the full Senate for consideration.

Senate Faces Byrd Rule Issues in Advance of Consideration of the American Rescue Plan
On Feb. 26, the U.S. Senate parliamentarian ruled that a provision in the American Rescue Plan does not meet the Byrd Rule test. In essence, the Byrd Rule says that in using budget reconciliation to pass legislation, provisions must have a direct impact – either positive or negative – on federal spending. Budget Reconciliation allows for the Senate to pass legislation with a simple majority and not the usual 60 votes required to pass legislation. The Byrd Rule may be raised against other provisions including subsidies for insurance provided through COBRA. The legislation can only pass in the Senate if all democrats stay united and Vice President Harris breaks the tie vote. Read more about the Byrd Rule here. The Senate is expected to wrap up consideration of the COVID legislation over the next two weeks. If provisions are stripped out of the House passed package, the House will have to consider the Senate version. The goal of the leadership is to have the bill before the President for signing by March 14.

Drug Importation Legislation Introduced
On Feb. 25, Sens. Grassley (R-IA) and Klobuchar (D-MN) reintroduced the Safe and Affordable Drugs from Canada Act, which would allow individuals to safely import prescription drugs from Canada. This legislation is cosponsored by Sens. Tammy Baldwin (D-WI), Susan Collins (R-ME), Sherrod Brown (D-OH), Maggie Hassan (D-NH), Angus King (I-ME), Patrick Leahy (D-VT), Jeff Merkley (D-OR), Jeanne Shaheen (D-NH), Sheldon Whitehouse (D-RI), Ron Wyden (D-OR) and Gary Peters (D-MI). Companion legislation was introduced in the House of Representatives by Reps. Chellie Pingree (D-ME) and Jaime Herrera Beutler (R-WA).

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

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.


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.


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.


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.


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 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.


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.


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.


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.


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.