November and beyond: Industry stakeholders weigh in on their hopes for Congress

With the 2022 midterm elections just weeks away, health industry leaders have eyes on Congress. Should one or both chambers flip from Democratic to Republican control, some experts say GOP lawmakers are unlikely to advance major new overtures out of a reluctance to undercut their 2024 presidential candidate on health policy issues.

“If Republicans take one of the houses, they will be more vigorous about making proposals and advancing proposals to trim back what Democrats have done in the past two years—rather than initiating truly new initiatives,” said Joseph Antos, senior fellow and Wilson H. Taylor Scholar in Health Care and Retirement Policy at the American Enterprise Institute.

The specifics of spending and reimbursement would almost certainly present sticking points in a divided Congress. With that possibility in mind, some industry stakeholders and trade groups hope for an end-of-year lame duck package that reflects their priorities; others point to the bipartisan potential of future endeavors. The chance that Democrats retain both the House and Senate can’t be discounted either.

Modern Healthcare reporters dive into some of the big issues Hill insiders and healthcare decision-makers are watching in the lead-up to the midterms.

Reimbursement

Congress could tackle provider reimbursement issues in a potential end-of-the-year legislative package.

Several provider types have already asked Congress for help avoiding payment cuts in 2023. Physicians could see a nearly 4.5% cut to their Medicare payment next year due to a final rule from the Centers for Medicare and Medicaid Services. A bipartisan bill introduced in the House in September, the Supporting Medicare Providers Act, would avert the cut.

“Moving forward with this cut now is wrongheaded and inconceivable. … Our patients are counting on Congress to agree to a solution, and the clock is ticking,” Dr. Jack Resneck Jr., president of the American Medical Association, said in a news release about the bill.

Even if the 4.5% cut is prevented, providers will still be subject to a separate 4% statutory Medicare payment cut next year. Congress prevented the cuts from going into effect last year, and Federation of American Hospitals President and CEO Chip Kahn expects lawmakers to do so again.

“I don’t think it’s a matter of choice,” Kahn said. “No one who provides services to Medicare beneficiaries can afford the 4% reduction.”

There’s talk of introducing a hospital-specific reimbursement bill as well, said Dean Rosen, a partner at healthcare lobbying firm Mehlman Castagnetti Rosen & Thomas. CMS finalized a 4.3% Medicare pay increase for inpatient prospective payment system hospitals next year, but hospital trade groups said the update is not sufficient.

Congress will probably pass a bill avoiding some portion of the cuts physicians face before the end of the year, but it’s unlikely providers will see complete relief, Rosen said.

Providers also hope to see the Medicare-Dependent Hospital and enhanced Low-Volume Adjustment programs, which bolster rural hospital finances, extended for another five years, Kahn said. Congress already extended the program through December.

In addition, they want the 5% advanced alternative payment model bonus extended for six years. Losing the bonus would disincentivize providers from joining value-based care arrangements, advocates said.

“This legislation is necessary to support the continued transition to value-based care. We cannot abandon previous momentum and strides made to expand participation in APMs,” Anders Gilberg, the Medical Group Management Association’s senior vice president of government affairs, wrote in a letter to congressional leadership outlining the group’s year-end priorities.

The focus on provider reimbursement won’t end after 2022. Lawmakers have indicated interest in an overhaul of the physician payment system, which could gain momentum next year.

The current system, created by Congress in 2015, included no annual inflationary update in an effort to nudge physicians toward value-based care arrangements. But many physicians say it hasn’t been working.

“At least get us on the same curve with everybody else. They’re throwing trillions of dollars around up here,” Dr. John Calhoon, president of the Society of Thoracic Surgeons, said during a press briefing in September, referring to Congress.

Public health emergency flexibilities

Providers are eager to secure prolonged reimbursement for temporary programs enacted during the COVID-19 public health emergency, which was last extended this month.

The end of the pandemic will, for instance, mark the end of the Acute Hospital Care at Home waiver, unless Congress acts quickly on bipartisan legislation, the Hospital Inpatient Services Modernization Act, to extend the program allowing hospitals to treat certain patients at their homes.

More than 200 health insurance companies and hospitals have received waivers for the program. Although Ceci Connolly, president and CEO of the Alliance of Community Health Plans, a trade group for not-for-profit insurers, said extending it will be critical for lowering healthcare costs, she does not expect Congress to get to it ahead of the next session.

“We’re coming down to the wire in terms of days left in the congressional calendar, even with a lame duck,” Connolly said. “There are going to be a handful of those must-have items that Congress is going to focus on. We’ll keep banging the drum, but this one may not make the cut as we sprint to the finish line.”

One area she does expect Congress to act on before the end of the year is extending telehealth payment parity and site and geographic flexibilities enacted by the Centers for Medicare and Medicaid Services during the public health emergency. The House in June passed a bill, the Advancing Telehealth Beyond COVID-19 Act, that extends telehealth payment parity reimbursement through 2024. Although these flexibilities extend only to Medicare coverage, commercial insurers generally look to the federal program for guidance in developing their reimbursement policies.

Eventually, reimbursement for telehealth services should be incorporated into value-based payment arrangements with providers, as opposed to being billed on a fee-for-service basis, Connolly said.

“As you move away from the bricks-and-mortar of having all of these big buildings with all of these personnel, and all the overhead cost, you should start to bring that payment down,” she said.

Drug pricing

When it comes to policies for drug pricing, the rest of the year will likely be spent implementing the relevant provisions of the Inflation Reduction Act, said JC Scott, president and CEO of the Pharmaceutical Care Management Association. The landmark legislation, passed in August, limited inflationary price hikes and insulin costs under Medicare, gave Medicare the ability to directly negotiate prices with drug manufacturers, and reduced older adults’ out-of-pocket maximum, among other things.

Scott said he expects plans to lower drug costs to remain a focus of each party regardless of the midterm outcomes.

If Republicans win a majority, federal agencies could see a greater degree of oversight into how changes are carried out because “whenever you have a one party in control of Congress, and a different party in the administration, the oversight cranks up,” Scott said.

“There could be a lot of hearings, a lot of testimony by leadership from HHS and CMS, and a desire to understand the sausage-making process by getting the administration to come on-the-record and talk about what they’re doing, and what their objectives are,” Scott said. “That becomes an opportunity on a political basis for them to relitigate the substance of a bill that many Republicans didn’t like because it was passed under a partisan reconciliation process.”

The trade group representing pharmacy benefit managers supports legislation that requires drug manufacturers to offer competitive rebates on lower-cost generic and biosimilar medications, to help incentivize and accelerate their inclusion on payer formularies. PCMA also calls for increased guardrails around drug companies using patent restrictions and exclusivity contract clauses to prevent competitive products from entering the market.

Over the past two years, House Democrats have introduced at least four bills intended to address such issues—all of which are pending in committee. If Democrats retain their majority, these bills have a greater chance of seeing the light of day in Congress, Scott said.

“A Democratic majority would want to clear the decks,” Scott said. “Republicans would probably be more inclined to be cooperative at that point, since they would not be on the verge of taking over gavels.”

Further work on drug pricing may attract Democratic attention. Senate Majority Leader Chuck Schumer (D-N.Y.) said in August that he intends to continue discussing whether to apply the inflation rebate to the private market.

A Democratic majority could push additional scrutiny of PBMs. The Federal Trade Commission in June launched an inquiry into how consolidation in the industry impacts drug prices. UnitedHealth Group’s OptumRx, CVS Health’s Caremark and Cigna’s Express Scripts control about 80% of the PBM market. The FTC’s report on its findings will likely come out in early 2023, Scott said.

Democrats and Republicans could also advance the Pharmacy Benefit Manager Transparency Act, a bipartisan bill that would ban the industry from profiting on spread pricing and clawbacks.

“I’m not hearing any indications that it’s likely to go any further this year,” Scott said. “We obviously have concerns with the limitations built into that bill on the tools that our companies use to make the private market system work and drive down drug costs.”

Workforce shortages

Workforce shortages hinder every sector of the healthcare industry. To confront the crisis, advocates say Congress must act on behalf of employees.

Ken Zinn, political director of National Nurses United, said inadequate staffing requires a systemic solution.

“What was a problem before [COVID-19] is an absolute crisis now,” he said.

Some bills that have passed the House but stalled in the Senate—such as the Workplace Violence Prevention for Health Care and Social Service Workers Act, directing the labor secretary to establish an occupational safety and health standard for health industry employees—could be part of the answer, he said.

Zinn also voiced support for the VA Employee Fairness Act, a bill co-sponsored in the House by members of both parties aimed at giving Veterans Health Administration workers more collective bargaining rights.

In the event of a lame duck session, Congress should increase funding for ongoing COVID-19 needs, he said.

“It’s disgraceful the coffers have run dry for many programs,” he said.

Those in the long-term care industry, which has been hit particularly hard by labor gaps, say any upcoming election is an opportunity to get their issues in front of lawmakers.

“Workforce challenges are, in my opinion, the most significant challenge that we’re facing at the moment,” said Clif Porter, senior vice president of government affairs for the American Health Care Association/National Center for Assisted Living, representing more than 14,000 long-term care facilities.

AHCA/NCAL and LeadingAge—which represents not-for-profit aging services providers—support two bills aimed at addressing the problem.

The first, the Building America’s Health Care Workforce Act, is a bipartisan bill introduced in the House that would give nursing facilities two years after the public health emergency ends to certify nursing assistants hired under temporary training waivers and would allow them to count on-the-job hours toward training requirements.

“Whether as a standalone bill or included in a bipartisan legislative package, Congressman Guthrie hopes this legislation sees a vote on the House floor before the end of the year to help alleviate workforce shortages in nursing homes,” said a spokesperson for Rep. Brett Guthrie (R-Ky.), one of the lawmakers who introduced the bill.

The second, the Ensuring Seniors’ Access to Quality Care Act, is a bipartisan bill in the House and Senate and would allow senior-living facilities that were assessed civil monetary penalties for deficiencies of more than $10,000 by the Centers for Medicare and Medicaid Services to have in-house certified nurse assistant training programs under certain circumstances. Currently, those facilities are banned from doing so for two years.

“Frankly, at this point, we’re working on getting as many co-sponsors for those pieces of legislation as possible,” Porter said. “That traditionally makes it easier to get included in an end-of-the-year type package.”

A Democratic majority

Healthcare reform will likely stay in the legislative spotlight if Democrats retain their majority in Congress following the November midterm elections.

Democrats’ policy agenda will depend on how large a majority the party achieves, especially in the Senate. The chamber’s 50-50 make-up highlighted differences in the different wings of the Democratic party, with more centrist lawmakers blocking some of the progressive contingent’s policy requests.

“We’ve had that look at what policies were motivational to certain members,” said Jennifer Taylor, senior director of federal relations at consumer advocacy group Families USA. “If [Democrats] were able to pick up a couple of seats, perhaps they would revisit some of these questions.”

Democrats had to leave behind several health priorities to get their Inflation Reduction Act across the finish line. If Democrats win a significant majority, there will be pressure to return to the policies, said Chris Jennings, founder and president of Jennings Healthcare Strategies.

Closing the Medicaid coverage gap could be at the top of that priority list. Twelve states have not expanded Medicaid eligibility under the Affordable Care Act, and while Congress can’t force the states to increase coverage, Democrats have been eyeing other policy solutions, including expanded tax credits for Marketplace coverage.

Additional funding for Medicaid home- and community-based services could also gain momentum in another Democratic Congress. Sen. Bob Casey (D-Pa.), the sponsor of the Better Care Better Jobs Act, a bill that would provide an additional $150 billion for Medicaid home care, said during a September press event that there’s near-unanimous approval for the policy among the Democratic caucus.

Maternal and child health policies, including securing permanent authorization of the Children’s Health Insurance Program and mandatory 12 months of postpartum Medicaid coverage, could garner support. The policies may be included in a year-end legislative package, and would certainly be in a 2023 Democratic agenda if not, Taylor said.

Democrats may also probe Medicare Advantage and managed-care policies.

However, if Democrats win a bigger majority, broader policy could overshadow wonkier healthcare laws, Jennings said.

“There’s no question that there’ll be overwhelming political pressure to codify [abortion rights], and also to do election reform,” he said. “You can imagine how much political capital you have to expend on trying to do that, and then how much more can you do?”

Update: This article has been updated to reflect the publication of final rules from the Centers for Medicare and Medicaid Services.

Kara Hartnett, Caroline Hudson and Christopher Kane contributed to reporting.

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