McDermottPlus Check-Up: November 17, 2023 | JD Supra


  • Congress passes CR: The House and Senate passed a two-tiered continuing resolution (CR) to fund the government through early 2024, averting the threat of a pending shutdown. The short-term spending bill was signed by the president on November 16.
  • Senate Hearing on Telehealth: The Senate Finance Health Care Subcommittee held a hearing on Medicare telehealth permanency, as many existing flexibilities will expire at the end of next year if Congress does not act to change this.
  • Markup House of Healthcare Bills: The House Energy and Commerce Health Subcommittee held a hearing on 21 health care bills, including proposals related to the physician fee schedule and more pharmacy benefit manager reforms ( PBM).
  • CMS Final Rule: The Centers for Medicare and Medicaid Services (CMS) has issued a final rule on property disclosures regarding Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities.


Congress passes a two-tier CR to fund the government in 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, HR 6363, the Additional Continuing Appropriations and Other Act Extensions, which extend the funding for four approvals. bills until January 19, 2024, and the remaining eight appropriations bills until February 2, 2024. The relatively “clean” CR also includes temporary extensions of health programs expiring until the 19 January, including funding for community health centers, the National Health Service Corps, 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 including many health care extensions and policies for which there is still pressure for Congress to act. A few key examples of issues that the CR does not address include cuts to Medicare physician payments, the extension of funding for children’s hospitals that provide medical training, the continuation of the model bond of Medicare alternative payment (APM) and the extension of financing for low Medicare beneficiaries. -income access and assistance to help people enroll in federal financial assistance programs to make their coverage affordable. Whether and how Congress will address issues like these is unknown at this time, but it is possible that separate health legislation could move in the interim, or that on January 19, 2024, CR could become a vehicle for a supplementary health policy.

A total of 209 House Democrats joined 127 Republicans to pass the CR on November 14th, and the Senate followed with a strong bipartisan vote of 87 to 11 on November 15th. closed before the holidays. Speaker Johnson said this is the last short-term CR he intends to move forward, putting real pressure on Congress before the first deadline on January 19. It should be noted that the House has passed several approval projects this year, but had to pull it. many – including the Labor, Health and Human Services (HHS) Appropriations – from the House plan recently because they did not gain enough votes from the Republicans for passage. The Senate has passed only three appropriations bills, and the two bodies remain far apart in terms of funding for these initiatives.

In related news, as we look to finalize FY 2024 appropriations, the Congressional Research Service (CRS) has released a report on how the CR will impact discretionary spending limits. The report will outline 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 to Examine Telehealth Permanence. The Health Care Subcommittee discussed efforts to ensure continued access to telehealth benefits for Medicare beneficiaries. Committee members from both sides of the aisle expressed support for the continuation of Medicare telehealth flexibilities that began during the COVID-19 public health emergency. The witnesses also highlighted key flexibilities that should be permanent, such as the elimination of geographic restrictions to provide telehealth so that it can continue to be provided in the homes of Medicare beneficiaries, expanding the telehealth services offered, allowing the audio-only assistance for Medicare beneficiaries, expanding the types of providers allowed. to provide telehealth, and pay equity. Multiple members expressed support for S. 2016, the CONNECT for Health Act, the comprehensive project to expand the flexibility of telehealth that has 59 bipartisan cosponsors in the Senate.

Most of Medicare’s current telemedicine flexibilities will expire on December 31, 2024, without action from Congress. The desire to extend the flexibility of telehealth is seen as a driver for action on health policies in 2024.

House Energy and Commerce Committee Holds Checkpoint on 21 Health Care Bills. The Health Subcommittee considered and advanced 21 legislative proposals aimed at improving patient access to care and support providers.

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

  • HR 5372, the Expanding Seniors’ Access to Lower Cost Medicines Act of 2023, would encourage greater patient access to biosimilar products by allowing mid-year changes in insurance plan formularies for certain biosimilar products starting in 2025.
    • Advanced with a voice vote.
  • HR 5385, the Medicare PBM Accountability Act, would create enhanced PBM reporting requirements, such as annual reporting of drug prices and other information to the HHS Secretary, including information on Part D drugs , drug dispensing, drug costs and prices, generic and biosimilar formulary. placement, PBM affiliates, financial arrangements with consultants and potential PBM conflicts of interest.
    • Advanced with a voice vote.
  • HR 5555, the DMEPOS Relief Act of 2023, would require the Secretary of HHS to provide certain adjustments to Medicare payment for items of durable medical equipment that were previously included in the 2021 round of durable medical equipment , prosthetics / orthotics and supplies (DMEPOS). offer program.
    • It advanced by a vote of 16-12.
  • HR 6364, the Medicare Telehealth Privacy Act of 2023, prohibits the HHS Secretary from making a physician’s or practitioner’s residential address publicly available if the physician or practitioner decides to provide telemedicine services from that address. The public health emergency flexibility that allows providers to provide telemedicine services from their homes, without reporting their home addresses on their Medicare enrollment and while continuing to bill from their currently enrolled location, is was extended until December 31, 2024, in the recently released Medicare Fee. Schedule (PFS) final rule.
    • Advanced with a voice vote.
  • HR 6371, the Provider Reimbursement Stability Act of 2023, would increase the PFS budget neutrality threshold and provide a look-back period to reconcile overestimates and underestimates of price adjustments for individual services.
    • Advanced with a voice vote.
  • HR 6369, to amend title XVIII of the Social Security Act, extend eligible APM participation incentive payments for one year and extend the size of the bonus based on how long a provider has participated in a APM to better enforce the increase. – the frontal costs of APM participation.
    • Advanced with a voice vote.


CMS Issues SNF and Nurse Proprietary 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:

  • Each member of the governing body of the facility, including the name, title and period of service of each member
  • Any person or entity that is an officer, director, member, partner, trustee or employee of the facility management, including the name, title and period of service of each person or entity.
  • Any person or entity that is an additional discloseable part of the facility
  • The organizational structure of each additional discloseable part of the facility and a description of the relationship of each additional discloseable part to the facility and to each other.

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 take effect 60 days after the date of publication in the Federal Register. Read the CMS press release here and the fact sheet here.


  • The FDA’s chief deputy commissioner plans to retire before 2024. Janet Woodcock plans to leave the agency in January 2024. She joined the agency in 1986 and later led the FDA’s (Food and Drug Administration) drug approval work. Woodcock served as acting FDA commissioner when President Biden first took office, holding the position until the Senate confirmed Robert Califf to the position in February 2022.
  • HHS publishes the agency’s FY 2023 financial report. The report provides fiscal results and performance summaries that allow the President, Congress, and the public to assess the agency’s accomplishments for the reporting period from October 1, 2022 to September 30, 2023 .
  • KFF releases Medicaid enrollment survey. The Kaiser Family Foundation survey, based on responses from officials in 47 states and the District of Columbia, projects that Medicaid enrollment will drop 8.6% in FY 2024 as states continue to drop individuals. ineligible from their Medicaid rolls. At the same time, the states’ share of Medicaid spending is expected to increase by 17.2% – largely the result of the continued phase-out of the enhanced federal funding that states received during the pandemic — even as total Medicaid spending growth is expected to slow to 3.4%. .
  • SAMHSA releases 2022 national survey on drug use and health data. The report shows how people in the United States described their experiences with mental health, substance use and treatment behaviors in 2022. The report is accompanied by a high-level brief that includes infographics.
  • Missouri extends full Medicaid coverage after pregnancy. HHS announced that Missouri is the 40th state to extend coverage of postpartum services under Medicaid and the Children’s Health Insurance Program for 12 months. As a result, as many as 18,000 additional people in Missouri will be eligible for Medicaid for a full year after pregnancy.
  • HRSA is hosting a panel discussion in honor of National Rural Health Day. Health Resources and Services Administration (HRSA) Administrator Carole Johnson was joined by HHS Deputy Secretary Andrea Palm, Centers for Disease Control and Prevention Director Dr. Mandy Cohen, CMS Deputy Administrator and Director of the Center for Medicare Dr. to recognize and celebrate National Rural Health Day. The main points can be found here.


Check-Up will be on hiatus next week for the Thanksgiving holiday. We hope everyone has a wonderful holiday and we will be back on December 1st.

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