February 25, 2020

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Overlapping Provisions in Major Healthcare Bills 2019

Lawmakers came with big ambitions for 2019, but we are headed into 2020 with two major health policies left on life support and many healthcare programs nearing expiration. There has been much discussion about what policies can inch over the finish line given the political realities facing the House, Senate and White House, and the dwindling clock. Given the elephant in the room (ahem, the House impeachment inquiry), the question remains: What kind of healthcare legislation can lawmakers piece together this year?

That is the analysis we put together below. We looked at the Senate Health, Education, Labor and Pension (HELP) Committee legislation (S 1895), the Senate Finance Committee legislation (S 2543), House Speaker Nancy Pelosi’s (D-CA) prescription drug bill (HR 3), and the various standalone bills that have been approved by the House Energy and Commerce Committee, and identified areas of overlap in provisions related to prescription drug pricing, surprise billing and health extenders. This chart is not a summary of all of the provisions in these bills. Rather, it highlights the policies that appeared in two or more of the four proposals. There is potential for a small package of bipartisan, “low-hanging fruit” proposals to be become law. The areas of overlap below point to those examples. However, costs and potential pay-fors are also a major player in policy negotiation, so we also note any official Congressional Budget Office (CBO) scoring if available.

Several items not listed in the chart below could also come into play. These include:

  • Preserve Access to Affordable Generics and Biosimilars Act (S 64/HR 2375). These bills are sponsored by Senate Finance Committee Chairman Chuck Grassley (R-IA) and Amy Klobuchar (D-MN) in the Senate, and by House Judiciary Committee Chairman Jerry Nadler (D-NY) and Ranking Member Doug Collins (R-GA) in the House. The bills seeks to strengthen the Federal Trade Commission’s (FTC) ability to challenge settlement agreements between large brand drug and generic drug companies in court. Otherwise known as “pay-for-delay,” this tactic has long been an issue that lawmakers have wanted to address. Both bills are bipartisan, and HR 2375 has passed out of the House Judiciary Committee. CBO estimates that between fiscal year (FY) 2019 and FY2029, HR 2375 would reduce direct spending by $520 million and increase revenue by $93 million for a total of $613 million in deficit reduction.

  • Site Neutral. While this is mainly a regulatory issue, a legislative fix has been rumored to be floating around since the last court ruling. In September 2019, a federal judge ruled that the Centers for Medicare and Medicaid Services (CMS) exceeded its authority in extending a site-neutral payment policy to clinic visits performed at off-campus, provider-based hospital departments. If Congress is looking for a pay-for, this could be one. There is no CBO score because there is no legislation, but CMS estimated that the policy would lower reimbursement rates to hospitals by a total of $380 million in 2019 and $760 million in 2020.

  • Transparency. There are many provisions in these bills that fall into the “transparency” bucket. Any overlap is included below, but we could see lawmakers picking and choosing from the large bucket of options.

While the chart below only includes policies that appeared in two or more of the four proposals, there are many other health extenders awaiting action that were not included in any of the four buckets. We believe that the healthcare extenders will get across the finish line by the end of 2019. It just a matter of how long programs are extended and how they are paid for.

Click here for our analysis on healthcare extenders.

© 2020 McDermott Will & Emery


About this Author

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 crafts proactive and comprehensive legislative strategies.

Katie served as a senior analyst at the Medicaid and CHIP Payment and Access Commission (MACPAC), where she developed policy recommendations and conducted legislative analyses related to Medicare and Medicaid issues in support of Congress and HHS. At MACPAC, Katie regularly interpreted and analyzed large data sets for reports.

Prior to her work with MACPAC, Katie served in Senator Chuck Grassley’s (R-IA) office as a health policy fellow where she conducted research and analyses on health policy options. She also worked at the George Washington University, where she led the Teaching Health Center Graduate Medical Education evaluation.

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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...