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McDermott+Consulting Check-Up: January 28, 2022

McDermott+Consulting is pleased to provide the McDermottPlus Check-Up, your regular update on health care policy from Washington, DC.

This Week’s Dose

While Congress was in recess this week, House Democratic leadership released the America COMPETES Act, a legislative package that would make new investments in research, innovation, and manufacturing in the U.S., with a focus on accelerating production of critical semiconductor chips and strengthening the supply chain. Across the Capitol, a bipartisan pandemic preparedness proposal was unveiled by Senate HELP Committee leaders, and at the White House, the President -initiated new Build Back Better (BBB) discussions.


Senate HELP Committee Releases Draft Pandemic Preparedness Legislation

On January 25, Senate Health, Education, Labor and Pensions (HELP) Committee Chair Patty Murray (D-WA) and Ranking Member Richard Burr (R-NC) released a discussion draft of the Prepare for and Respond to Existing Viruses, Emerging New Threats, and Pandemics Act (PREVENT Pandemics Act).

This effort is focused on strengthening public health and medical preparedness and response systems following the COVID-19 pandemic. Throughout the pandemic, the HELP Committee has sought to examine what has worked—along with what has failed—in the nation’s pandemic response.  The discussion draft includes bipartisan proposals intended to build a stronger public health, medical preparedness, and response system in the U.S.

Key provisions in the 200+ page draft include:

  • The establishment of a task force to conduct a comprehensive review of the nation’s COVID-19 response

  • Requiring Senate confirmation of the Director of the Centers for Disease Control and Prevention (CDC) (the CDC Director is currently appointed by the President and does not require Senate confirmation)

  •  Addressing social determinants of health to alleviate disparities and improve public health emergency responses for all

  • Improving data collection and the availability of public health data

  • Revitalizing the public health workforce through improvements in recruitment and retention funding, and awards to support community health workers, among other provisions

  • Efforts to accelerate research and countermeasure discovery

  • Strengthening the medical supply chain by improving domestic manufacturing surge capacity and capabilities, and improvements to the Strategic National Stockpile

  • Combating medical product shortages through improvements to development and review processes at the Food and Drug Administration

The HELP Committee has indicated an intent  to mark up the legislation in the coming weeks, and may include additional provisions related to accountability and oversight, improved laboratory safety, and efforts to strengthen biomedical advanced research, such as the Advanced Research Projects Agency for Health (ARPA-H).

The text of the discussion draft can be found here, and a section-by-section summary can be found here.  The committee has a short timeline to accept comments on the draft until February 4, which can be submitted by emailing

Fast Approaching Deadline for Next Appropriations Package

As the February 18 expiration of the current continuing resolution (CR) quickly approaches, House and Senate appropriators are working largely behind the scenes to reach an agreement on an omnibus appropriations package for the remainder of FY 2022.  To avoid a government shutdown, Congress will need to enact an FY 2022 omnibus, a long-term CR that extends current funding levels, or another short-term CR that provides several additional weeks for a deal on a larger omnibus to be reached.

Details are still pending on adding a potential supplemental relief bill that to the appropriations package, which could contain additional funding for COVID-19 response efforts and natural disaster relief.  It is anticipated that a supplemental package would include both healthcare and economic priorities—such as funding to address healthcare staff shortages, expanding testing capacity, and funding for small businesses impacted by the pandemic—and would need to garner both Democratic and Republican support, given the 60-vote threshold in the 50-50 Senate.

Additional details on the appropriations package and potential supplemental are expected to come to light when Congress returns to session next week, as the clock ticks down to the February 18 deadline.


White House Holds BBB Meeting with CEOs

On January 26, President Biden met with a number of CEOs to discuss his BBB agenda—an indication that the White House is reviving its efforts to advance smaller portions of the President’s comprehensive social spending package, after the House-passed bill was sidelined by Senator Joe Manchin (D-WV) in late-2021.  The President also addressed a Families USA conference this week, during which he pushed for the Senate to take up BBB.

In Congress, Democratic leaders have expressed a willingness to return to a new iteration of BBB, perhaps one that deals with “chunks” of provisions in separate bills, though any such action would still require support from all 50 Senate Democrats—including Senator Manchin—in order to be approved under the budget reconciliation process.  In addition, any new iteration would still need to pass muster with the Senate Parliamentarian with respect to specific rules surrounding the reconciliation process.

We expect additional details on the progress of this delicate balancing act in the coming days, weeks, and months, as Democrats seek to advance parts of their social agenda in this midterm election year.

HHS Makes Additional PRF Phase 4 Payments

On January 25, the Department of Health and Human Services (HHS) announced that more than $2 billion in Provider Relief Fund (PRF) Phase 4 General Distribution payments would be made this week.  The payments—which are distributed through the Health Resources and Services Administration (HRSA), part of HHS—are being made to more than 7,600 providers and follow the previous round of Phase 4 payments made in December 2021.

According to HHS, a total of nearly $11 billion in PRF Phase 4 payments have now been distributed to more than 74,000 providers nationwide, and approximately 82% of all applications for Phase 4 have now been processed.  The agency also notes that PRF Phase 4 payments have an increased focus on equity, including reimbursing a higher percentage of losses for smaller providers, and incorporating bonus payments for providers who serve Medicaid, CHIP, and Medicare beneficiaries.  Additional information on PRF payments can be found here.

Quick Hits

  • Supreme Court Justice Stephen Breyer announced his plans to retire, teeing up the opportunity for President Biden to nominate his replacement, and adding a Supreme Court confirmation to the Senate’s agenda during this busy election year.

  • CMS held an open door forum for providers on the balanced billing provisions of the No Surprise Act (see accompanying slide deck).

  • The Office of the National Coordinator for Health IT (ONC)—part of HHS—released a request for information (RFI) seeking input on electronic prior authorization standards, implementation specifications, and certification criteria that could be adopted within the ONC Health IT Certification Program. Responses to the RFI are due by March 25 and will be used to inform potential future rulemaking.

  • The Departments of Labor, HHS, Treasury issued their 2022 Mental Health Parity and Addiction Equity Act (MHPAEA) Report to Congress. The report includes information that suggests health plans and health insurance issuers are not delivering parity for mental health and substance-use disorder benefits. It also highlights the three departments’ emphasis on greater MHPAEA enforcement and guidance, and makes recommendations aimed at strengthening MHPAEA’s consumer protections and enforcement abilities.

  • The Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 vaccine and testing rule, following the recent Supreme Court ruling against the mandate.

  • CMS announced $49.4 million in funding for organizations—including state and local governments, tribal organizations, federal health safety net organizations, non-profits, schools, and others—to advance Medicaid and CHIP enrollment and retention.

  • CMS announced a record-high 14.5 million enrollments during the latest ACA open enrollment period (November 1, 2021 through January 15, 2022), including 5.8 million people who have newly-gained coverage.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 28

About this Author

Debra Curtis Health Policy Attorney Congress McDermott Will Emery

Debbie is a highly respected health policy authority who helps clients advance their missions in Congress and beyond. With more than three decades of experience working both on the Hill and with the health insurance exchange marketplace, she helps clients execute payment strategy, see around the corner on policy and regulatory changes, and pursue effective advocacy. In addition, Debbie has deep experience working closely with payers, industry stakeholders and government officials at the federal, state and local levels.

During her 24 years as a...

Madeline Hodge Health Policy Director McDermott Law Firm
Health Policy Director

Madeline advises and advocates for clients on key policy, legislative and regulatory matters. With more than 10 years of experience working on Capitol Hill and with healthcare leaders, she helps clients lobby, develop effective policy strategies and build their brand reputation and awareness in Congress and throughout the United States. Madeline also helps her clients form and foster strong relationships with health policy decision-makers on national and grassroots levels.

Madeline’s healthcare background includes leadership roles advocating for healthcare providers, with a specific...

Kristen O’Brien Healthcare Executive McDermott Consulting

Kristen O’Brien is an accomplished healthcare executive with a deep understanding of regulatory advocacy and healthcare policy efforts.

Kristen offers a strong background and a keen eye for solutions to barriers and challenges impacting healthcare clients. With more than 10 years of experience, her work focuses on implementing new laws through the rulemaking process, as well as working with relevant agency officials to develop and improve agency guidance.

Kristen recently served as Principal of the Health Industry Policy and Regulatory Practice Group at a law and lobbying...

Professional Advisor

Erica Stocker is a professional advisor in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. Erica focuses primarily on health care, including provider reimbursements, quality of care and patient safety.

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