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McDermottPlus Check-Up: October 16, 2020

This Week’s Dose

Healthcare took center stage at the Supreme Court confirmation hearings for Judge Amy Coney Barrett. Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi (D-CA) resumed negotiations on further coronavirus (COVID-19) relief legislation, though prospects for passage before Election Day remain slim. 


Healthcare Dominated Supreme Court Confirmation Hearings. The Senate Judiciary Committee conducted four days of hearings on the Supreme Court nomination of Judge Coney Barrett, during which Democrats focused heavily on the fate of the Affordable Care Act (ACA). The Supreme Court is scheduled to hear oral arguments in a case on November 10 on whether the individual mandate is constitutional and, if not, whether the rest of the law can stand. Democrats have suggested that Coney Barrett would almost certainly vote to overturn the ACA if confirmed, eliminating protections for people with preexisting conditions and disrupting the entire healthcare system, though Coney Barrett downplayed the impact of the ACA case and did not directly answer questions about how she would rule if confirmed. Republicans on the Committee dismissed the issue, suggesting the Supreme Court is unlikely to strike down the entire law. The Supreme Court vacancy and ongoing confirmation fight have heighted the fate of the ACA as a political issue ahead of Election Day. The Judiciary Committee is scheduled to vote on Coney Barrett’s nomination on October 22, and she is expected to be confirmed by the Senate.

COVID-19 Relief Before Election Day Remains a Long Shot. While Senate Majority Leader Mitch McConnell (R-KY) claims that the chamber will work to pass a targeted relief bill before the election, the Republicans’ $500 billion proposal is far below what Democrats have demanded. Meanwhile, Secretary Mnuchin and Speaker Pelosi have restarted talks of a broader deal, though it is unclear if the White House and House Democrats can reach a compromise between their latest proposals, which remain far apart. Even if Mnuchin and Pelosi reach a compromise, it may not have sufficient support from Senate Republicans, many of whom have suggested that they do not support further stimulus spending. The Senate is scheduled to reconvene on October 19, just two weeks before the election. The tight timeline and the fact that a compromise has yet to emerge mean it is highly unlikely that COVID-19 relief legislation will become law before Election Day.

Bipartisan Lawmakers Urged HHS to Change PRF Reporting Requirements.  Republican and Democratic senators sent letters to the Department and Health and Human Services (HHS) urging the Department to revise the September 19 Provider Relief Fund (PRF) reporting requirements. The reporting requirements detail the Department’s approach to COVID-19 related expenses and lost revenue. In their letters, the senators raise concerns that the reporting requirements cause uncertainty and financial hardship for providers who accepted funds from the PRF long before these requirements were announced. Senate Majority Leader McConnell and Minority Leader Chuck Schumer (D-NY) also sent similar letters, heightening the political pressure on HHS. Given the mounting pressure, the guidance is likely to be modified before the reporting portal opens on January 15, 2021. HHS has indicated that more information on the reporting requirements will be available next week, though how HHS will address these concerns remains unclear. For more information on the PRF, see our Toolkit


CMS Added New Medicare Telehealth Services and Released Medicaid Data. The Centers for Medicare and Medicaid Services (CMS) added 11 new services to the list of Medicare-covered telehealth services during the COVID-19 Public Health Emergency (PHE). These are the first additions that have been made through the modified process CMS put into place in May, which allows the agency to add telehealth services outside of a formal regulation. The agency also released a preliminary Medicaid and Children’s Health Insurance Program (CHIP) data snapshot on telehealth utilization during the PHE, as well as a supplement to its State Medicaid and CHIP Telehealth Toolkit that includes new information from states that have implemented telehealth changes. These are the latest of several actions the Administration has taken to expand telehealth services and flexibilities during the PHE, and stakeholders continue to press Congress to make some of the larger telehealth flexibilities permanent, such as the waiver of originating site and geographic requirements.


CMS Approved Georgia 1115 Waiver. The Section 1115 waiver, known as Pathways to Coverage, would provide a partial Medicaid expansion for certain residents who have incomes up to 100% of the federal poverty line. In order for an individual to be eligible for coverage under the plan, they must work or participate in community engagement activities for a minimum of 80 hours per month. Certain beneficiaries will also be required to pay monthly premiums on a sliding scale, not to exceed 2% of household income. This makes Georgia the eleventh state with an approved 1115 waiver to implement work requirements; however, courts have blocked the implementation of these efforts in several states. CMS did not approve Georgia’s request for enhanced Federal Medical Assistance Percentage for the partial expansion as part of this waiver. CMS and Georgia are also working toward approval of a 1332 waiver that would implement a reinsurance program while eliminating the state’s Marketplace and allowing the private market to entirely conduct enrollment. Expect both proposals to face legal challenges. 

Quick Hits

  • Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-TN) and House Energy and Commerce Committee Ranking Member Greg Walden (R-OR) asked for stakeholder input on “modernizing” the 340B drug pricing program, citing a lack of data necessary for proper oversight and the recent action of drug companies to limit the involvement of contract pharmacies. Comments are due October 30, 2020.

  • Democratic leadership of the Senate Finance and House Energy and Commerce and Ways and Means committees sent a letter urging the Government Accountability Office to review the Trump Administration’s plan to distribute $200 drug discount cards to Medicare beneficiaries ahead of the election. The lawmakers sent a similar letter to HHS requesting more information on the proposal and expressing concerns over its legality.

  • Republican leadership of the House Energy and Commerce Committee sent a letter requesting information from the Food and Drug Administration on how its labeling of OxyContin may have contributed to the opioid epidemic.

  • HHS published frequently asked questions that specify that providers cannot use funds received through the PRF to repay Accelerated and Advance Payment (AAP) Program loans. A press release from CMS last week incorrectly stated that PRF funds could be used to repay AAP loans. The press release was subsequently edited to remove that language.

  • CMS announced that starting January 1, 2021, Medicare will pay $100 only to laboratories that complete high throughput COVID-19 diagnostic tests within two days of specimen collection. For laboratories that take longer than two days to complete these tests, Medicare will pay a rate of $75.

  • CMS extended the comment period for a request for information seeking feedback on a draft national data set for Medicaid-funded home and community-based services. The new deadline to submit comments is November 18, 2020.

  • The Health Care Payment Learning and Action Network (LAN) held its 2020 summit on October 13. During the summit, LAN requested commitments to its Healthcare Resiliency Framework that describes key actions stakeholders can take to promote more resilient and effective alternative payment models. More information is available here

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 290



About this Author

Mara McDermott, McDermott Law Firm, Washington DC, HealthCare Law Executive

Mara is an accomplished health care executive with a deep understanding of federal health care law and policy, including delivery system reform, physician payment and Medicare payment models.

Most recently Mara served as the senior vice president of federal affairs at America’s Physician Groups (formerly the California Association of Physician Groups, CAPG), a professional association representing medical groups and independent practice associations practicing in capitated, coordinated care models. As head of the Washington, DC, office, Mara...

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 firm where she provided representation for hospital systems, physician practices, medical device companies, digital health companies and trade associations. She has extensive experience in providing analysis and counsel related to government healthcare payment programs under Medicare and Medicaid. She also has extensive knowledge of navigating the Centers for Medicare & Medicaid Services (CMS), the Office of the National Coordinator for Health Information Technology (ONC) and others.

Previously, Kristen provided legislative and regulatory legal analysis as a senior attorney for the American Medical Association. Additionally, Kristen served on the staff of former Senator Max Baucus (D-MT), focusing on health and environmental issues, as well as financial reform.


Rachel Stauffer, McDermott Law Firm, Washington DC, Health Policy Consultant

Rachel is a highly experienced government relations and legislative affairs strategist and advocate who is informed by a solid foundation of health policy knowledge.

Prior to joining McDermottPlus, Rachel served as the director of policy and government relations for a health IT contractor, where she developed the company’s first strategic plan for government relations. She grew the company’s profile on Capitol Hill by establishing new relationships with key leaders in the federal, state and military health program space. As a result, the company...

Katie Waldo Healthcare Attorney

Katie is an experienced government relations strategist who helps clients navigate the complex issues surrounding Medicare, Medicaid and the healthcare marketplace.

Katie works with clients to represent their needs before the US Congress and the US Department of Health and Human Services (HHS) and its agencies by relying on extensive experience as a policy advisor on the Medicaid and Medicare programs, as well as the 340B program and other aspects of the Public Health Service Act. She anticipates the effects of state and federal policymaking on issues impacting their businesses and...

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Government Relations Professional and Registered Lobbyist

Emma is a government relations professional and registered lobbyist who supports clients on a range of health policy issues.

As a policy consultant, Emma lobbies and consults with legislators and congressional staff on issues relating to Medicare, Medicaid payment and regulation, and the 340B Drug Pricing Program. She provides analysis of the federal political and regulatory environment, and routinely monitors pertinent Hill activities including congressional hearings, bill markups and think tank events.

Emma graduated...