United States: Capitol Hill Healthcare Update - September 25, 2017

GOP Divisions Threaten to Sink ACA Repeal Effort – Again

Republicans' last-ditch effort to overhaul the Affordable Care Act (ACA) suffered potentially fatal blows as GOP senators in recent days voiced either outright opposition to or serious reservations about legislation pushed by Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.).

The senators' bill would repeal the ACA's individual and employer mandate penalties and turn the law's Medicaid expansion into a trillion-dollar block grant to states. Graham and Cassidy also were readying last-minute funding and regulatory changes in an effort to woo reluctant Republican colleagues in advance of today's Senate Finance Committee hearing on the legislation.

Republicans plan to begin Senate floor debate on the bill Wednesday with a key procedural vote. It is not clear whether today's changes to Graham-Cassidy are sufficient to win over at least 50 Republicans for that test vote and later to pass the bill. Without a clear path forward, Senate Majority Leader McConnell has said he does not want his party to go through an excruciating exercise like July's one-vote failure to advance a different version of ACA replace legislation.

To date there have been no indications even one Democrat – such as Sen. Joe Manchin (D-W.V.) – would break with their party and back Graham-Cassidy. Republicans hold 52 Senate seats, so if more than two GOP senators defect, the legislation would fail.

Sen. Rand Paul (R-Ky.) earlier said he could not support Graham-Cassidy because it keeps most of the ACA's spending and taxes in place even as it shifts decision-making to the states. Because those block grants are at the heart of Graham-Cassidy, it is doubtful legislative accommodations could be made to win Paul's support. Still, Senate leaders and the White House were hopeful to persuade Paul with other provisions.

Sen. John McCain (R-Ariz.) on Friday announced his opposition to the bill, despite the strong backing of Arizona's Republican governor and McCain's long-standing friendship with Graham. McCain's no vote brought down Republicans' last effort to overhaul the ACA in July.

Sen. Susan Collins (R-Maine) has expressed "strong reservations" about Graham-Cassidy, including its redistribution of Medicaid funding from states that expanded their programs under the ACA as well as blocking Planned Parenthood from receiving federal reimbursements. Collins has not definitively said she is voting against the bill, but most GOP leadership staff believe she will not support it.

Sen. Lisa Murkowski (R-Alaska) also said she is concerned about Medicaid and Planned Parenthood. Alaska's independent governor has come out against Graham-Cassidy. Like Collins, Murkowski has not yet said how she would vote.

Complicating an already daunting task for Republican leaders, Sen. Ted Cruz (R-Texas) said Sunday he could not support the bill in its current form – despite Texas seeing a significant increase in Medicaid spending and regulatory flexibility under Graham-Cassidy. Some Senate Republicans believe Cruz is withholding his vote in order to gain concessions but that he would ultimately support the bill.

Republicans face a Saturday deadline to use the fast-track reconciliation procedures that allow them to pass the legislation on a party-line vote. After September 30, Republicans would need 60 votes to block a Democrat filibuster.

Do Republicans Turn Back to ACA Stabilization Efforts?

Senate HELP Committee Chairman Lamar Alexander (R-Tenn.) last week stopped bipartisan talks on shoring up the ACA's individual markets, while Republican leaders focused on a final effort to repeal the ACA.

But with ACA overhaul legislation backed by Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.) possibly dead, Alexander is expected to try to revive efforts with top committee Democrat Patty Murray (D-Wash.). The senators had been working on ways to stabilize insurance premiums in the ACA's individual markets.

The outlines of the agreement would extend the healthcare law's cost-sharing reduction payments to insurers to subsidize coverage premiums for individuals while also providing states with increased flexibility to approve low-cost insurance plans.

Those waiver details, however, have not been settled and likely represent the biggest threat to an agreement. Republicans want to give states broad flexibility to bring down rates mostly by relaxing coverage requirements, but Democrats warn they will not back waivers that undermine the ACA's consumer protections and coverage mandates.

House Republicans Seek Answers From Merck on Cyber Attack

Leaders on the House Energy and Commerce Committee last week sought information from Merck and the U.S. Department of Health & Human Services (HHS) on a malware attack that struck the company last summer and continues to affect its drug supply.

Energy and Commerce Committee Chairman Greg Walden (R-Ore.) and Rep. Tim Murphy (R-Pa.), the panel's Oversight and Investigations Subcommittee chairman, wrote letters to Merck CEO Ken Frazier and HHS Secretary Tom Price.

While the Merck malware attack has been known about for several months, the company only recently said the attack continues to affect its operations. Walden and Murphy said they wanted to understand more about the event and its ongoing consequences to determine whether the committee should consider a legislative response to protect the healthcare sector from future cyber threats.

Although only Republicans signed the letters, the committee did conduct a bipartisan inquiry last year into cyber vulnerabilities for medical devices, particularly devices connected to the Internet.

Meanwhile, on Wednesday the House Oversight and Government Reform Committee will hold a hearing on cyber threats to the Internet of Things. Witnesses are expected to discuss cyber risks for medical devices.

Medicare 'Extenders' to Be Added to FAA, Flood Bill

Several Medicare programs scheduled to expire this month are expected to be included in House legislation introduced this week that would reauthorize separate transportation and flood insurance programs.

The Medicare "extenders" include an intravenous immune globulin pilot project, a teaching health center graduate medical education program and a diabetes program for Native Americans. Those programs would be added to legislation renewing the Federal Aviation Administration through next spring.

The intravenous immune globulin pilot project, which would be reauthorized through 2020, treats individuals with lupus and weakened immune systems. Under the $45 million project, Medicare covers services to administer intravenous immune globulin to up to 4,000 patients in their homes.

To offset costs for the programs, the bill would cut $50 million from the Medicare Improvement Fund's $270 million budget beginning in fiscal 2021. That fund aims to facilitate improvements to Medicare hospital coverage under Part A and physicians' services under Part B.

Senior HHS Officials to Testify at Senate Opioid Hearing

Four top HHS officials will testify next week during a Senate HELP Committee hearing about the federal government's response to the opioid crisis.

The committee also will review implementation of last year's Comprehensive Addiction and Recovery Act, which authorizes $181 million to support opioid prevention and treatment programs. The panel will discuss implementation of the 21st Century Cures Act, which included $1 billion in grants to states to combat opioid abuse.

Scheduled witnesses at the October 5 hearing include Food and Drug Administration (FDA) Commissioner Scott Gottlieb, National Institutes of Health (NIH) Director Francis Collins, Centers for Disease Control and Prevention (CDC) Director Brenda Fitzgerald and Elinore McCance-Katz, an assistant secretary at the Substance Abuse and Mental Health Services Administration.

Hatch Calls on CMS to Slow Changes to Home Healthcare

The chairman of the Senate Finance Committee last week said the Centers for Medicare & Medicaid Services (CMS) should exercise "more robust data analysis" when updating a proposed rule that would change how and when Medicare reimburses for home health services.

In a letter to CMS Administrator Seema Verma, Sen. Orrin Hatch (R-Utah) said "CMS may be rushing to finalize complex policy changes too quickly" in the 2018 Home Health Prospective Payment System proposed rule.

CMS proposed new payment models and other changes that differed from recent Medicare Payment Advisory Commission recommendations. Hatch called on Verma to "refrain from finalizing" the proposed rule and to provide stakeholders time to fully analyze potential changes and provide substantive input.

Panel May Hold Hearing on 'Right-To-Try' Legislation

The House Energy and Commerce Health Subcommittee may hold a hearing next week on legislation that would give terminally-ill patients wider access to prescription drugs that haven't yet won FDA approval.

It is not clear whether the subcommittee would hold a hearing on House legislation introduced earlier this year by Rep. Andy Biggs (R-Ariz.) or legislation by Sen. Ron Johnson (R-Wis.) that won Senate approval last month. Johnson's bill would apply only to prescription drugs; the House bill would apply to drugs and medical devices.

Vice President Pence earlier this year endorsed the right-to-try legislation. Pharmaceutical manufacturers have resisted the legislation, saying early access to unapproved drugs could give patients false hope and threaten the integrity of ongoing clinical trials if those patients have adverse reactions.

Grassley: CMS Should Make Hospital Inspection Reports Public

The chairman of the Senate Judiciary Committee is calling on a CMS accrediting agency to publicly release hospital inspection reports.

In a letter to CMS's Administrator Seema Verma, Sen. Chuck Grassley (R-Iowa) wrote that making reports public would help patients decide where to seek care.

Grassley said the Joint Commission also appears to be failing to hold accountable facilities that have not properly cared for patients. He said there are more than 30 instances of hospitals retaining full accreditation even as CMS deemed their violations to be so significant they caused or were likely to cause a risk of serious injury or death to patients.

The senator asked CMS to respond to a series of questions about the inspections reports by October 3.

Lawmakers Question Price's Use of Private Jets

Following news reports that HHS spent more than $400,000 on private jet travel in recent months for Secretary Tom Price, House Democrats are calling for congressional oversight hearings.

HHS announced it would halt Price's private travel while reviews – including by HHS's inspector general – are underway. The department did not explain why the secretary needed to use private jets for 24 trips since early May, according to media reports.

Rep. Elijah Cummings (D-Md.), the top Democrat on the House Oversight and Government Reform Committee, called on panel leaders to examine Price's use of private travel for official business.

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