Health Policy Report

The Week in Review
 
August recess arrived last week in Washington, with the Senate pushing off votes on cybersecurity and the Iran deal until lawmakers return to Capitol Hill on September 8.  Under a unanimous consent agreement reached on Wednesday, Republicans and Democrats agreed to postpone debate on a cybersecurity measure (S. 754) that would give liability protection to companies that voluntarily share cyber threat information with intelligence agencies and law enforcement. Both sides agreed to debate the bill—plus 10 Republican and 11 Democratic amendments—after the August recess. The Senate will be able to proceed to consideration without needing to set up a cloture vote.

Earlier in the week, Democrats successfully blocked a bill (S. 1881) that would make Planned Parenthood ineligible for federal dollars. While Republicans have threatened to link funding of the women’s health organization to a general funding fight due after recess, Senate Majority Leader Mitch McConnell (R-KY) played down those expectations in comments last week. The Majority Leader reiterated his pledge not to shut down the government, with a continuing resolution still expected to be passed before government funding expires on September 30.
 
The first debate between Republican presidential candidates also took place last week, with the top 10 polling contenders taking the stage in Cleveland, Ohio on Thursday night. Health care did not emerge as a major topic of discussion, but Donald Trump was questioned on his previous support for a single payer system and responded that he did support such a system – in Scotland. John Kasich, governor of Ohio, also was drawn into a health care discussion and provided a robust defense of his decision to accept Medicaid expansion as a part of the Affordable Care Act (ACA).
 
The Week Ahead
 
Both the House and Senate will be in recess until Tuesday, September 8. When the Senate reconvenes in September, members are set to immediately consider a measure which would disapprove of President Barack Obama’s nuclear deal with Iran – also bypassing a cloture vote on proceeding to the measure. For a full rundown on the major legislative issues due to be considered after the summer break, please refer to TRP’s Fall Legislative Outlook.
 
McConnell Comments on Potential Shutdown, ACA Repeal
 
After shepherding the Senate to recess on Wednesday, Senate Majority Leader Mitch McConnell voiced his opposition to shutting down the government over Planned Parenthood funding when Congress returns from recess in September. The Kentucky Republican guaranteed that the government would remain open and pointed to the vote on the standalone measure (S.1881) as a way for Republicans to be “on record” with their opposition to funding the controversial organization. However, conservative hardliners such as Sen. Ted Cruz (R-TX) may seek to put pressure on the Majority Leader to reverse his position, especially as some more moderate Republicans, such as Sen. Thad Cochran (R-MS) have also voiced their reservations on voting for a spending measure that maintained support of Planned Parenthood.
 
Also in his remarks on Thursday, McConnell confirmed that language to repeal the Affordable Care Act (ACA) will most likely be passed through the budget reconciliation package expected this Congress. The parliamentary procedure allows for legislation to circumvent the 60-vote threshold typically required of major legislation in the Senate. Forcing an ACA repeal to the President’s desk has been a top priority for conservatives, but some Republicans would prefer to use the tactic to pass a bill the President is more likely to sign into law. McConnell seemed to side with the former last Thursday, dismissing the suggestion that Republicans would use reconciliation for other means. Restrictions on the reconciliation process would prohibit a full repeal of the ACA, but major pieces of the law, such as the individual and employer mandates, could be on the chopping block.
 
Bipartisan Senate Finance Staffers See Possible ACA Changes in Future
 
Hopes for Republican support of minor changes to the ACA grew last week after comments from Sen. Tim Scott (R-SC) suggested that Republicans are now looking for a way to make the ACA more “digestible” rather than focusing on a repeal-only approach. Staffers on both sides are considering making tweaks to the law and Sen. Ron Wyden’s (D-OR) office has expressed some optimism that there could be bipartisan support for ACA fixes in the near future.
 
A number of ACA revisions have been gathering steam in recent weeks, including the repeal of the medical device tax and Cadillac tax, a change to the 30-hour workweek, and the repeal of the Independent Payment Advisory Board (IPAB). Additionally, the Department of Health and Human Services (HHS) is reportedly considering delaying some of its own tweaks to the ACA, including the creation of maximum out-of-pocket limits and expanding the definition of the small-group exemption from the employer mandate from businesses with fewer than 50 employees to ones with fewer than 100. Advocates for ACA changes have pointed to the successful negotiation of the Sustainable Growth Rate (SGR) repeal in April as an example of bipartisanship in healthcare that they will hope to continue.
 
Murphy, Cassidy Introduce Mental Health Bill in Senate
 
Sens. Chris Murphy (D-CT) and Bill Cassidy (R-LA) introduced a comprehensive mental health bill (S. 1945) last Tuesday as a Senate companion to Rep. Tim Murphy’s effort in the House (H.R. 2646). The wide-reaching legislation has been touted as a response to the high-profile shooting incidents in recent years, including the December 2012 shooting in Sandy Hook, Connecticut – Sen. Murphy’s home state. Specific provisions in the bill include a change to the Health Insurance Portability and Accountability Act (HIPAA) that would allow for more information on mentally-ill patients to be shared with family members and the creation of new assistant secretary position in HHS to act as the lead executive for mental health. The bill would also provide additional resources for early intervention, including in children who are considered at-risk for mental illness.
 
The Senate bill serves as a companion to the House version passed by the Energy and Commerce Committee earlier this year, and negotiations between the two chambers are expected to take place this fall.  Mental health has received a great deal of attention this summer and has been the subject of two other recently-introduced bills in the Senate; one sponsored by Sen. John Cornyn (R-TX) and the other by the bipartisan pair of Sens. Lamar Alexander (R-TN) and Patty Murray (D-WA). These two bills are considered narrower in scope than the comprehensive measure introduced by Murphy and Cassidy, but they contribute to an overarching vibe of bipartisanship on the mental health issue. 
 
Although both parties have expressed the desire to pass mental health legislation, any overhaul will need to overcome two key obstacles. The first is timing: the fall is due to be an incredibly busy period for Congress, with the Iran deal, government funding, long-term highway funding, and a papal visit all due in the weeks following the body’s return from the summer recess. It may be difficult for the Senate to consolidate all of its bills, and negotiate Rep. Murphy’s House version, before the 2016 election season takes hold. Secondly, and perhaps more importantly, is the issue of funding. The proposed budget resolution does not appropriate all the funds authorized for mental health, and the new bills will likely need to be paid for through a variety of offsets.
 
House Members Urge CMS to Drop Biosimilars Reimbursement Proposal
 
Last week, a bipartisan group of 33 House lawmakers sent a letter to Centers for Medicare and Medicaid Services (CMS) pressing the agency to withdraw its recently proposed rule that creates single billing codes for biosimilars that reference the same brand biologics. The measure seeks to calculate the pay for billing codes based on the average sales price (ASP) of all biosimilars that use a common license application, effectively reducing the amount CMS would reimburse for biosimilars. The lawmakers who signed the letter argue that the law governing biosimilars explicitly states that each should get its own billing code and that the proposed rule undermines congressional intent. Industry opponents of the rule insist that reimbursing biosimilars as generics could greatly reduce patient choices and drive up Medicare costs. The proposal is included in the 2016 Physician Fee Schedule and will likely draw more scrutiny from Congress and industry advocates alike before going into effect on January 1.