Health

Holland & Knight Health Dose: November 22, 2022

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LEGISLATIVE UPDATES

Midterm Election Update

Democrats will retain control of the Senate in the 118th
Congress, after key races in Arizona and Nevada were called in
their favor. The Georgia runoff between incumbent Sen. Raphael
Warnock (D) and Challenger Herschel Walker (R) on Dec. 6, 2022,
will determine whether Democrats have a 51- or 50-seat majority in
the Senate next year (with Vice President Kamala Harris to cast a
tie-breaking vote). After a handful of pending House races were
called last week, Republicans will take narrow control of the
House.

Congressional Leadership Updates

Congressional Republicans held their party leadership elections
last week. Minority Leader Mitch McConnell (Ky.) overcame a
challenge from Sen. Rick Scott (Fla.) to remain the Republican
party’s leader in the Senate. Senate Republicans also elected
Sen. John Thune (S.D.) as Senate minority whip, Sen. John Barrasso
(Wyo.) as chairman of the Senate Republican Conference, Sen. Joni
Ernst (Iowa) to run the Senate Republican Policy Committee, Sen.
Shelley Moore Capito (W. Va.) to serve as vice chair of the Senate
Republican Conference, and Sen. Steve Daines (Mont.) to replace
Scott at the top of the National Republican Senatorial
Committee.

In the House of Representatives, current Minority Leader Kevin
McCarthy (Calif.) was voted the Republican nominee for Speaker of
the House. McCarthy received only 188 votes – short of the
218 that he would need during the formal House speaker vote in
January. Many conservative members of the Freedom Caucus backed
Rep. Andy Biggs (Ariz.), who received 31 votes. Republicans also
reelected Rep. Steve Scalise (La.) as the party’s No. 2 leader.
Rep. Tom Emmer was elected whip of the House Republican Conference.
Rep. Elise Stefanik (N.Y.) was reelected conference chair and Rep.
Richard Hudson (N.C.) will serve as the National Republican
Congressional Committee Chair.

Senate Democrats will hold their leadership elections the week
of Dec. 5, and House Democratic leadership elections are expected
to take place on Nov. 30. Current House Speaker Nancy Pelosi
(Calif.), who has served as the Democratic House leader for nearly
two decades and is the only woman to ever serve as speaker,
announced her exit from congressional leadership last week. She
will retain her seat in the House. Majority Leader Steny Hoyer
(Md.) announced that he would step down from his leadership role.
Rep. Jim Clyburn (S.C.), who serves as the Democrats’ No. 3
position in leadership, is expected to continue as assistant
leader. Rep. Hakeem Jeffries (N.Y.) is widely considered the choice
to become the new Democratic leader. Rep. Katherine Clark (Mass.)
is running to be the Democratic whip, and Rep. Pete Aguilar
(Calif.) is running for caucus chair.

In committee leadership news, Sen. Rand Paul (R-Ky.) stated that
he would not seek the top Republican position on the Senate Health,
Education, Labor and Pensions (HELP) Committee, instead choosing to
pursue the top Republican spot on the Senate Homeland Security and
Governmental Affairs Committee. Paul’s decision clears the way
for Sen. Bill Cassidy (R-La.) to be the ranking Republican on the
HELP Committee in the 118th Congress.

Sen. Patty Murray (D-Wash.) officially announced that she would
step down as chair of the HELP Committee to seek the gavel on the
Appropriations Committee following the retirement of Sen. Patrick
Leahy (D-Vt.). As a result, Sen. Bernie Sanders (I-Vt.) will seek
to chair the HELP Committee next year. While, Sen. Susan Collins
(R-Maine) is expected to replace retiring Sen. Richard Shelby
(R-Ala.) as the top Republican on the Appropriations panel.

Healthcare Professionals in the 118th
Congress

  • Retiring healthcare professionals: Rep. Karen Bass, PA, MSW
    (D-Calif.) – Los Angeles Mayor-Elect; Rep. Eddie Bernice
    Johnson, RN (D-Texas) – retiring; Rep. Alan Lowenthal, PhD,
    psychologist (D-Calif.) – retiring; Rep. Kurt Schrader, DVM
    (D-Ore.) – defeated in the primary.
  • Healthcare professionals joining the 118th Congress: Rep.-Elect
    Jen Kiggans, RN, AGNP (R-Va.) – geriatric nurse practitioner;
    Rep.-Elect Rich McCormick, MD (R-Ga.) – emergency physician;
    and Rep.-Elect Yadira Caraveo, MD (D-Colo.) –
    pediatrician.
  • Not yet called: (although leans Republican): Kermit Jones, MD,
    JD, MPH (D-Calif.) – family physician.

REGULATORY UPDATES

Bumpy Surprise Billing Implementation
Continues

House Ways and Means Committee Chairman Richard Neal (D-Mass.)
and Ranking Member Kevin Brady (R-Texas) recently sent a letter to
the Biden Administration taking issue with the most recent rule
implementing the No Surprises Act. In the letter, they argue that
the latest August rule “follows neither the letter nor the
intent of the law” and raise specific concerns with the
administration’s verbiage around “double counting”
certain criteria. Meanwhile, several insurer, consumer and employer
groups filed amicus briefs supporting the administration’s
interpretation of the rule in response to the Texas Medical
Association lawsuit, which the American Medical Association and
American Hospital Association also supported.

In hopes of reducing the backlog because of the high volume of
cases, the U.S. Department of Health and Human Services (HHS)
announced
that it would increase the maximum allowable
certified entity fee to $700 for 2023 ($938 for batched claims), up
from $500 (and $670) for 2022. The administrative fee will remain
at $50. Independent dispute resolution (IDR) entities have until
Nov. 18 to inform HHS of any changes to their fees, which will go
into effect on Jan. 1, 2023. Centers for Medicare & Medicaid
Services (CMS) also added three new approved entities to its
approved
list of certified IDR entities
.

HHS Evaluating Medicare Advantage Reforms as Plans
Continue to Face Scrutiny

U.S. Department of Health and Human Services (HHS) Secretary
Xavier Becerra made public comments last week saying that the
Department is currently evaluating future policy changes to improve
oversight of Medicare Advantage (MA) plans, which have come under
scrutiny for alleged “up-coding,” increased market
consolidation, and increased use of prior authorization. A recent
American Medical Association
survey
found that increased consolidation had hindered
competition – 79 percent of Metropolitan Statistical Areas
had MA markets with low levels of competition, according to the
survey, and were ranked “highly concentrated” by federal
standards. A recent American Hospital Association
report
found that prior authorization requirements delayed
care, increased administrative burden and added costs. The
Improving Seniors’ Timely Access To Care Act aims to institute
guardrails on using prior authorization requirements by MA plans.
The bill unanimously passed the House in September and is vying for
consideration in an increasingly crowded possible year-end
healthcare agenda. This follows as Senate Finance Committee
Democrats
sent a letter
to HHS and CMS, asking that Centers for Medicare
& Medicaid Services (CMS) take additional steps to implement
consumer protections in MA.

Medicaid Directors Call for Increased
Predictability/Certainty for PHE Wind Down

In a recent
letter
to Congress, the National Association of Medicaid
Directors said that U.S. Department of Health and Human
Services’ (HHS) lack of transparency over when the COVID-19
Public Health Emergency (PHE) will end had hindered planning for
state Medicaid programs, thereby increasing the risk of Medicaid
beneficiaries losing coverage unnecessarily. The letter asks for
120 days of advance notice, double the 60 days that the Biden
Administration had previously promised, as well as increased
certainty by maintaining the current 6.2 percent Federal Medical
Assistance Percentage enhancement through the first quarter of
redeterminations and phasing the enhancement down gradually over
the subsequent year, plus a guarantee that underlying Medicaid
eligibility rules would not change during this time.

Seniors HHS Officials Expect Value-Based Transformation
to Pick Up Post-COVID-19

In recent remarks, both U.S. Department of Health and Human
Services (HHS) Secretary Xavier Becerra and Centers for Medicare
& Medicaid Innovation (CMMI) Director Liz Fowler acknowledged
that the transition to value-based payment had been slowed by the
COVID-19 pandemic and lawsuits. Still, both reiterated it remained
a priority and expected the pace to pick up. Fowler went on to say
that the CMMI would consider mandatory demonstrations post-Public
Health Emergency (PHE).

Administration Hones Artificial Intelligence
Strategy

U.S. Department of Health and Human Services (HHS) released a
document
outlining eight of the most common ways that
artificial intelligence (AI) is currently being used, along with a
detailed
inventory
of all the uses. Uses included U.S. Food and Drug
Administration (FDA) counterfeit drug detection, fraud prevention
and responding to public assistance requests. The documents were
released to increase transparency, encourage AI’s usage by
other federal agencies and build on a recent White House blueprint
for an AI bill of rights.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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