McDermottPlus Check-Up: November 17, 2023



Congress Passes Two-Tiered CR to Fund Government into Early 2024. In the absence of final passage of any of the 12 annual appropriations bills for FY 2024, Speaker Johnson (R-LA) unveiled a short-term CR, H.R. 6363, the Further Continuing Appropriations and Other Extensions Act, that extends funding for four appropriations bills through January 19, 2024, and the remaining eight appropriations bills through February 2, 2024. The relatively “clean” CR also includes temporary extensions of expiring health programs through January 19, including funding for community health centers, the National Health Service Corps, the Special Diabetes Programs and preventing cuts to the Medicaid DSH program. It also provides a one-year fix for Medicare clinical laboratory test payment changes.

This list is far from inclusive of many extensions and healthcare policies for which there is still pressure for Congress to act. A few key examples of issues that the CR does not address include the Medicare physician payment cuts, extension of funding for children’s hospitals that provide physician training, continuation of the Medicare alternative payment model (APM) bonus, and extension of funding for Medicare beneficiary low-income outreach and assistance to help people enroll in federal financial assistance programs to make their coverage affordable. Whether and how Congress turns to issues like these is unknown at this time, but it is possible that separate health legislation could move in the interim, or that the January 19, 2024, CR could become a vehicle for additional healthcare policy.

A total of 209 House Democrats joined 127 Republicans to pass the CR on November 14, and the Senate followed suit with a strong bipartisan vote of 87–11 on November 15. The bill was signed by President Biden on November 16, temporarily averting a government shutdown before the holidays. Speaker Johnson has said that this is the last short-term CR he intends to bring forward, putting real pressure on Congress prior to the first deadline on January 19. Of note, the House has passed several appropriations bills this year but has had to pull several—including Labor, Health and Human Services (HHS) Appropriations—from the House floor recently because they did not garner enough votes from Republicans for passage. The Senate has passed only three appropriations bills, and the two bodies remain far apart on funding for these initiatives.

In related news, as we look to finalizing FY 2024 appropriations, the Congressional Research Service (CRS) released a report on how the CR will impact discretionary spending caps. The report elaborates on what the Fiscal Responsibility Act (FRA) requires if a CR is in effect, when a sequester would occur under a CR, and how the FRA limits and revisions compare to FY 2023 spending.

Senate Finance Committee Holds Hearing Examining Telehealth Permanency. The Health Care Subcommittee discussed efforts to ensure continued access to telehealth benefits for Medicare beneficiaries. Committee members on both sides of the aisle expressed support for the continuation of Medicare telehealth flexibilities that began during the COVID-19 public health emergency. Witnesses also highlighted key flexibilities that should be permanent, such as eliminating geographic restrictions for providing telehealth so that it can continue to be provided in Medicare beneficiaries’ homes, expanding telehealth services offered, allowing audio-only care for Medicare beneficiaries, expanding provider types permitted to provide telehealth, and payment parity. Multiple members expressed support for S. 2016, the CONNECT for Health Act, the comprehensive bill to expand telehealth flexibilities that has 59 bipartisan cosponsors in the Senate.

Most current Medicare telehealth flexibilities are set to expire on December 31, 2024, without congressional action. The desire to extend telehealth flexibilities is seen as a driver for action on healthcare policies in 2024.

House Energy & Commerce Committee Holds Markup on 21 Healthcare Bills. The Health Subcommittee considered and advanced 21 legislative proposals aimed at improving patient access to care and supporting providers.

A full list of the bills, including links to bill text, amendments and vote outcomes, can be found here, and more detailed summaries can be found in the markup memo. Highlights include the following:


CMS Issues SNF and Nursing Facility Ownership Disclosures Final Rule. CMS issued a final rule requiring SNFs to disclose the following information to CMS or, for Medicaid nursing facilities, the applicable state Medicaid agency:

A Medicare SNF, once enrolled, must disclose any changes to this information, and SNFs must revalidate their Medicare enrollment every five years.

This final rule will become effective 60 days after the date it is published in the Federal Register. Read the CMS press release here and fact sheet here.


© 2024 McDermott Will & Emery
National Law Review, Volumess XIII, Number 321