Health Law Update

Home | Health Law Update

<img class="alignright size-medium wp-image-3460" src="https://healthlawupdate.bakerhostetlerblogs.com/wp-content/uploads/sites/19/2016/01/Washington-DC-iStock_000074771283_Full-300x200.jpg" alt="Washington DC iStock_000074771283_Full" width="300" height="200" />A growing number of moderate and conservative Republicans in Congress are voicing concerns about the party’s strategy to repeal the Affordable Care Act (Act) in February but then wait months – and possibly even into 2018 – before developing a replacement plan. Republicans, including President-elect Trump, have said the party’s No. 1 priority is repealing the law, which they say is already in a death spiral that’s causing insurance premiums to rise and coverage choices to shrink. Final repeal votes in the House and Senate are likely in mid-February. But Republicans are far from achieving internal consensus on a replacement plan, so GOP leaders want to vote quickly to repeal the ACA – with a delayed effective date of at least two years – and use the intervening time to develop a new policy.

Sens. Bob Corker (R-Tenn.), Tom Cotton (R-Ark.), Rand Paul (R-Ky.), and Bill Cassidy (R-La.), have recently voiced support for delaying the ACA repeal vote until Republicans can simultaneously unveil a replacement. Additionally, an increasing number of Republican governors in Medicaid expansion states are expressing concern about losing ACA funding, saying they will be forced to drop coverage for low-income families and individuals if the billions of dollars in federal funds are cut off. Republicans are desperate not to get tripped up politically by healthcare, but they face two competing political pressures: fulfilling a longtime campaign promise to quickly repeal the ACA, and the likely messy and lengthy process of achieving consensus on what comes next.

An acceptable middle ground according to some congressional staff could be for GOP leaders to release a set of detailed principles outlining the party’s replacement plan at the same time as the ACA repeal vote. This could buy time for party leaders to work on finding policy consensus among rank-and-file lawmakers. Still, senior GOP Senate staff are confident that lawmakers will vote for a repeal-only bill despite the recent comments of GOP senators.

President-elect Trump is the wild card. So far he hasn’t addressed the issue publicly. But one comment – or tweet – could upend Republicans’ plans for how to navigate the hazardous policy and political shoals of ACA replacement. Trump is scheduled to talk this week with House Speaker Paul Ryan (R-Wis.), about Republicans’ ACA strategy.

Democrats pressure Trump, GOP on drug prices 

Saying they want to hold President-elect Trump to his campaign promises to bring down prescription drug prices, congressional Democrats introduced legislation last week that would permit the government to negotiate prices for drugs covered by Medicare Part D. Allowing Medicare to negotiate directly with drug companies – a policy long championed by Democrats – won support from Trump last year on the campaign trail. Sen. Bernie Sanders (I-Vt.) and Rep. Peter Welch (D-Vt.), introduced legislation last week that would do just that, and they called on Trump to endorse their bills.

Democrats will also push the issue with a series of amendments in the Senate this week on budget legislation that will set the stage for Republicans to advance their efforts to repeal the ACA. In addition to Sanders, Sens. Al Franken (D-Minn.), Amy Klobuchar (D-Minn.) and Sherrod Brown (D-Ohio), are expected to lead that effort, which will include an amendment authorizing drug importation. Republicans are expected to beat back the amendments, though importation has previously gained traction in the Senate and does enjoy some bipartisan support.

Democrats target HHS pick Price 

One week before the Senate confirmation hearings of Rep. Tom Price (R-Ga.), begin, Democrats are stepping up criticism of the President-elect’s nominee for secretary of the U.S. Department of Health and Human Services (HHS). Senate Minority Leader Chuck Schumer, (D-N.Y.), and other Democrats are calling for an ethics investigation of Price over his ownership of and trading in healthcare stocks. Democrats haven’t offered evidence that Price’s holdings or trades were improper, but they are demanding an outside review.

The Senate HELP Committee on January 18 will hold a hearing on Price’s confirmation. Price, an orthopedic surgeon, also will be vetted next week by the Senate Finance Committee, which will be the panel that votes on advancing Price’s nomination to the full Senate. Most Democrats will likely vote against the conservative Georgia congressman, who’s called for the repeal of the ACA and taken other healthcare-related positions opposed by Democrats. But Democrats at the moment lack the votes to block Price from succeeding current HHS Secretary Sylvia Mathews Burwell.

Burgess to lead key House health panel 

A physician will be the next chairman of a key House subcommittee that will draft ACA replacement legislation and approve new FDA-industry user fees. Rep. Michael Burgess, (R-Texas) was named last week to lead the Energy and Commerce Subcommittee on Health, which has legislative jurisdiction over the FDA and Medicare Parts B and D. First elected in 2003, Burgess has been active in healthcare policy, including the 2015 repeal of the Medicare physician reimbursement formula.

Burgess has long been critical of the ACA, and his subcommittee will play a leading role in developing legislation to replace the healthcare law. He will be active in the first six months of the year as the panel leads the effort to renew the pharmaceutical and medical device industries’ user fees, which finance almost half of the FDA’s budget, and to reauthorize the Children’s Health Insurance Program (CHIP). Both the FDA user fees and CHIP reauthorization expire on Sept. 30.

Trump fills two key White House health posts 

The staffer who will lead President-elect Trump’s White House Domestic Policy Council has a long history working on healthcare policy at the HHS, the Senate and for a governor. Andrew Bremberg will become director of the council, which ensures domestic policy decisions and programs align with the president’s stated goals, as well as monitors implementation of the president’s domestic policy agenda.

Bremberg was chief of staff for former HHS Secretary Michael Leavitt during former President George W. Bush’s administration. He previously worked for Senate Majority Leader Mitch McConnell, (R-Ky.), and Wisconsin Gov. Scott Walker. He started this summer on the Trump transition team, where he led HHS transition efforts.

Trump also announced Katy Talento will oversee healthcare policy at the council. Talento, an infectious disease epidemiologist, previously worked in the Senate, including for the HELP Committee and as a healthcare staffer for Sen. Thom Tillis (R-N.C.).

Rep. Paulsen reintroduces device tax repeal 

Rep. Erik Paulsen (R-Minn.), last week introduced stand-alone legislation that would repeal the ACA’s 2.3 percent excise tax on the domestic sale of medical devices. Paulsen has long opposed the device tax and has introduced legislation to repeal it in successive congressional sessions. His new legislation has 221 bipartisan House co-sponsors. The tax is currently in the second year of a two-year suspension. Without action by Congress, it is scheduled to come back into effect in 2018. It is expected that Senate Finance Committee Chair Orrin Hatch (R-Utah) will soon introduce bipartisan legislation to repeal the device tax.

The repeal of the device tax is caught up in the larger issues that surround Republican plans to repeal and replace the ACA. Some lawmakers want the ACA taxes immediately struck down, while others say the tax revenue will be needed to fund coverage while transitioning to a new healthcare plan. Another suggestion by some Republican staff would be to only suspend the device tax in an effort to keep the industry engaged in helping to propel passage of the GOP replacement plan.

Grassley expands Mylan probe 

Senate Judiciary Committee Chair Chuck Grassley (R-Iowa), who has criticized the Centers for Medicare and Medicaid Services (CMS) for failing to investigate Mylan’s potential overcharging of Medicaid for the EpiPen, is now questioning the agency about drugs from AstraZeneca and Purdue. In a letter last week to acting CMS Administrator Andy Slavitt, Grassley questioned whether CMS investigated the companies for misclassifying their drugs in a way that shielded them from mandated Medicaid drug rebates. Grassley said the misclassifications, which according to the senator began in 2009, have cost taxpayers “hundreds of millions of dollars” in higher Medicaid costs. He asked Slavitt for responses by January 18, just two days before President-elect Trump is sworn in.

Lawmakers object to HHS liver transplant plan 

A bipartisan group of more than 70 House lawmakers is calling on HHS to change a proposal for liver transplants that they say will reduce access to transplants and increase their cost. Congress created the Organ Procurement Transplantation Network to ensure policies on organ allocation were medically based, and that patients in rural areas wouldn’t be at a disadvantage compared with liver transplant patients who live closer to cities. But the lawmakers, led by Reps. Kevin Yoder (R-Kan.), and Eddie Bernice Johnson (D-Texas), say the network’s plan would unfairly penalize rural communities and minority populations. The lawmakers urged HHS Secretary Burwell to withdraw the plan and solicit additional stakeholder input.

Capitol Hill Healthcare Update