09/29/2016 Update: Late last week, the House and Senate Committees moved a few bills we are adding to our hitchhikers list. New downloadable list can be found here.
Last night, the House and the Senate wrapped up a Continuing Resolution to keep the federal government open until December 9, 2016. The agreement includes disaster relief funding for Louisiana and support for Zika prevention and vaccine research. The issue that nearly scuttled the whole deal - funding for Flint Michigan's water system - was resolved through an amendment to a water resources bill that will be considered during the lame duck session after the November election.
The Flint agreement means a lame duck session is not in question. As we mentioned in our recent Notes from the Road, the lame duck session could be very productive and include a number of health care related bills. To the analysis below we add the following items to the list of possibilities for passage during the year-end 114th Congress Grand Finale.
- House passed the ESRD Choice Act of 2016 which would expand Medicare Advantage to all ESRD patients. ESRD patients are the only group expressly excluded from the Medicare Advantage program. Patient advocates have supported passage of the bill because data on outcomes and mortaility rates seem to suggest the care coordination offered by MA plans is beneficial. We understand that the provider community is happy with the bill as well.
- House passed Sustaining Health Care Integrity and Fair Treatment Act of 2016 which suspends the application of site-neutral payments for cases that exceed that 25 percent threshold between October 1, 2016 and June 30, 2017.
Not included in our list but worth mentioning is that House Ways and Means subcommittee on Health held a hearing on HR. 3298 Medicare Post-Acute Care Value-Based Purchasing Act of 2015. This bill would repeal the market basket over-ride of 1 percent scheduled in FY 2018 for SNFs, IRFs, HHAs, and LTCHs which was included in MACRA as a pay-for. The bill would create a value-based purchasing program for post-acute providers with an at-risk percentage of 3 percent in 2020, raising to 8 percent in 2025. This bill does not meet our criteria for inclusion in the list of possibilities because it was not passed by the full committee. However, until mid-week last week, it looked like it was on greased skids, headed that direction. The industry pitched a fit, and things have slowed down. We mention it because the bill would affect so many providers and provider types and the Chariman of the full committee, who actually appeared at the subcommittee hearing, seems very committed to passage. So, it may not be included in the lame-duck year-end passagapalooza but it is a very real possibility in the 115th Congress.
Original Post: We have put together a comprehensive list of health legislation that might might move with year-end, must pass spending bills. You can download it here. Good news for behavorial health and SUD; mostly good news for Medicare Advantage and a mixed bag for hospitals and LTCHS.
The federal fiscal year ends in 22 days. Between now and then Congress must do one of three things:
1. Pass an omnibus spending bill
2. Pass a continuing resolution
3. Shut down the federal government
Both options 1 and 2 require Congress to pass something. We are not even going to entertain Option 3 at this point because we think most Members of Congress- especially House Republicans- would like to be re-elected this year. The public takes a dim view of delayed Social Security checks and the like. Given the short time until the end of the fiscal year, option 1 seems very unlikely. That leaves the old reliable Continuing Resolution or CR as the most likely course of action this month.
Then the question becomes whether Congress will pass a stopgap CR that expires in December or one that expires in March. House conservatives would like to see the government funded until March arguing that lame duck sessions produce some pretty bad bills. They are right to a certain extent but after Rep. Tim Huelskamp (R-KS) who helped unseat House Speaker John Boehner, went down in ignominious defeat (42-58%) to his primary opponent, we are not sure the Freedom Caucus has the stroke they once did. Left unsaid is the right wing of the right wing's belief that they will gain influence in the body if Republicans lose the anticipated 10-15 seats in November and thus have more sway in March than they will in December.
House moderates are arguing for a December resolution to avoid the confluence of a spending negotiation with an increase in the debt ceiling in early 2017. More on a practical level, the moderate wing of the House thinks approving a spending package to be necessary for the orderly conduct of federal business. They tend to get support for this view from House Democrats. Senate Majority leader Mitch McConnell would appear to concur as he is eyeing an early December vote for a spending bill.
Regardless of whether Congress elects to pass a simple CR until December - the most likely outcome - or until March or it passes an omnibus in September - right after pigs fly - they have to do something or risk a government shutdown. Passing bills has become such a rarity these days that an omnibus or continuing resolution (or in 2014, the love child of both, the Cromnibus) is one of the few vehicles available to get unrelated legislation to the president's desk. As such, there will be a good bit of horse-trading between now and the end of September or, more likely, the end of December, between leadership and various Congressional factions to see which bills will hitch a ride on the must pass Omnibus/CR/Cromnibus. Historically - meaning the last 6-7 years - these year-end deals have included health care legislation, often of great significance.
To get ahead of what will become a very fast moving process at the end of September and December, we have gotten in the habit of making a list of the likely health care-related hitchhikers, starting with bills that have moved past introduction and gotten some traction in either House. To this list we generally add bills that may not have gotten as much speed legislatively but are topical or pressing for other reasons. We generally exclude bills that result in de minimus changes to law like new reporting requirements, bills that are largely designed to score political points like repeal of the ACA and bills that affect federal or state grant programs. to the extent possible, we have included relevant tickers.
In the list you can link to here, a few themes are easily noticeable. First, addressing mental and behavioral health and substance abuse is front of mind for many Members of Congress. We have argued for several years now that this subsector of health care is going against trend. While most health care spending has shifted out of capital intensive environments like hospitals and SNFs and into outpatient and home or community settings, the opposite is true of behavioral and SUD treatment. Congress's efforts reflect a continuation of that trend which is a positive for AAC, ACHC and UHS.
Another noticeable theme is continued support for Medicare Advantage. This program, which was once the go-to source for budgetary off-sets by Democrats, now enjoys broad bipartisan support. That support is not without some scrutiny which usually takes the form of refinements to risk adjustment and oversight of plans' coding.
Finally, the list does include a modest effort to continue the march toward site neutral payments especially for hospital inpatient and outpatient services. HR 5273 would create identical codes for the same services delivered on an outpatient and inpatient basis. Currently, the same services have a different HCPCS codes, making standardization of payment more difficult. The bill would also grandfather in Hospital Outpatient Departments that were under development when reimbursement for new projects was changed last year. This change has been sought by the hospital lobby for a year now.
Not readily apparent from our list of hitchhikers, but on our short list for inclusion in September CR or a year-end spending bill are tweaks to MACRA. CMS indicated today, that they would be allowing physicians to ease into MACRA so legislation may not be necessary. Also likely for inclusion is a halt to the Part B Drug Demo. Notwithstanding the way in which certain drug companies have done their best to attract unwanted attention, the Part B Drug Demo has met with significant bipartisan opposition. Another possibility is a tweak to the LTCHs 25 percent rule which has the support of Rep. Tom Price of Georgia who has championed the cause on behalf of the Shepherd Center in Atlanta. Given the proximity to the November election, we doubt the year-end will bring any relief to some of the issues that have plagued the ACA including the low level of insurer interest in some markets in the public exchanges.
With Congress back in session, this list could grow or shrink depending on what, if anything, gets accomplished legislatively between now and then end of the month. We will keep you informed.
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