Capitol Hill Update
Congress formally certified President-elect Joe Biden as the winner of the 2020 presidential election following a chaotic day on Capitol Hill. The process was delayed after rioters broke into the Capitol building, forcing an hours-long lockdown that pushed the certification process into the early morning hours. Despite repeatedly stating that he will not concede the election and supported GOP lawmakers’ efforts to overturn results in several states, President Donald Trump issued a statement after the certification saying “there will be an orderly transition” to the incoming Biden administration. The President-elect will be sworn into office on Wednesday, January 20.
Meanwhile, lawmakers are left with lingering questions and repercussions regarding the security of the Capitol complex, as well as the future of President Donald Trump. There have been growing calls among Democratic leadership and rank-and-file Members — as well as some industry leaders — to remove President Trump from office by way of the 25th Amendment or impeachment for his role in last Wednesday’s events. In a “dear colleague” letter to Members over the weekend, Speaker Nancy Pelosi (D-CA) urged lawmakers to “be prepared to return to Washington this week” as House Democratic leadership formulates its plans for another round of impeachment against President Trump.
Biden to Release Nearly All Remaining COVID-19 Vaccine Doses
President-elect Joe Biden’s transition team announced last Friday he would seek to release nearly all available COVID-19 vaccine does in an effort to accelerate distribution. TJ Ducklo, spokesman for the Biden transition team, noted that the president-elect’s plan will ensure the Americans who need it most get it as soon as possible. Additional details about the plan are expected to be announced this week. The Trump administration has been holding back around half of the remaining vaccination doses for second shots, and only 2.8 million of the 12 million vaccine does from Moderna and Pfizer that have been shipped had been administered as of January 1. Last week, the Food and Drug Administration (FDA) reported delaying the second vaccine dose for both the Moderna and Pfizer vaccines would be potentially detrimental to public health. The Biden transition team has said they are confident the manufacturers can produce enough additional vaccines to deliver second doses in a timely manner and stated the president-elect will use the Defense Production Act to boost supply.
Democratic Control of Senate Could Change Health Policy Agenda
The Democratic Party is set to enjoy a unified government for the next two years after their victories in both Georgia Senate runoff elections. Democrat Jon Ossoff was declared the winner over incumbent Sen. David Perdue (R-GA), and Rev. Raphael Warnock defeated Sen. Kelly Loeffler (R-GA). With this 50-50 split in the upper chamber and Vice President-elect Kamala Harris serving as tiebreaker, Democrats will have additional opportunity to pursue their health care agenda. Additionally, the budget reconciliation process in Congress presents Democrats with a significant opportunity to pass sweeping legislation with a simple majority — previously used by Democrats to pass a significant portion of the Affordable Care Act (ACA) in 2010. While the odds are improved, Democrats couldn’t afford to lose a single vote in the Senate on a budget reconciliation measure and would have to unify a narrow, ideologically diverse House majority.
Although health care reform legislation isn’t likely to be the first item on Congress’ agenda, Democrats could choose to pursue a host of wish-list items in the 117th Congress. It’s unlikely the Democrats would be able to pass a public insurance option with such narrow majority, but Democrats could expand coverage by beefing up subsidies on Affordable Care Act exchanges and offering incentives for states to expand Medicaid. Democrats could look to lower the Medicare eligibility age to 60 through the budget reconciliation process, one of Biden’s campaign promises. A Democratic majority will also make it easier for President-elect Biden to nominate individuals who lack Republican support to key health care positions requiring Senate confirmation. Furthermore, a simple Democratic majority in the Senate now allow Democrats to overturn major health care rules promulgated by the Trump administration within its last 60 legislative days via the Congressional Review Act.
CMS Issues Guidance Outlining Authorities for Addressing Social Determinants
Last Thursday, the Centers for Medicare and Medicaid Services (CMS) sent a letter (press release) to states outlining existing authorities that can be used to address social determinants of health (SDOH) through Medicaid and CHIP. The State Health Official (SHO) letter enumerated state plan and waiver authorities that states may employ to address housing, education, food security, and more with the goal of improving beneficiary health and reducing program costs. CMS did not announce any new authority, either through regulation or through new interpretation of existing statute or regulation. Instead, the letter serves as a one-stop shop for states considering the use of these authorities and to encourage SHOs to adopt them to address SDOH.
The letter lays out four overarching principles to which states must adhere when providing services to address SDOH: (1) services must be based on individual assessments of need; (2) Medicaid is frequently but not always the payer of last resort, and states must assess all available public and private funding streams; (3) utilization and payment must be consistent with efficiency, economy, and quality of care; and (4) services must be sufficient in amount, duration, and scope to reasonably achieve their purposes. All four principles are rooted in statute or regulation.
CMS encouraged states to use existing authorities and to pursue demonstration projects that would help address SDOH. However, it noted that any state proposals for demonstration programs should be grounded in evidence and be accompanied by a rigorous evaluation plan. The agency also stressed that many of the services outlined may be provided using telehealth in addition to in person visits. As such, CMS encouraged states to assess their telehealth frameworks to determine if there are unnecessary restrictions preventing maximum utilization of telehealth for the services.
The letter enumerates authorities that CMS has identified that may be used to address the social determinants of health. An appendix to the letter lays these out in tabular form. In the body of the letter itself, CMS also identified the authorities and provides discussion, including extant examples of the authorities in action. It also highlighted services that may be covered using the authorities.
CMS Offers Guidance on End-of-Pandemic Medicaid Changes
On December 22, the Centers for Medicare and Medicaid Services (CMS) sent a letter to state health officials on preparations to return to normal operations after the conclusion of the COVID-19 pandemic. When the public health emergency (PHE) associated with the pandemic ends, several temporary authorities will expire, continuous enrollment requirements will end, and additional federal medical assistance percentage (FMAP) will revert to normal. The letter describes the authorities that will expire and provides guidance on planning for the eventual return to normal operations.
The state health official (SHO) letter went to officials overseeing Medicaid, CHIP, and Basic Health Programs (BHP) who were charged with overseeing the state-level implementation of PHE flexibilities and new requirements and authorities created by COVID-19-related legislation in Spring 2020. This included requirements to maintain eligibility for currently enrolled beneficiaries through the end of the PHE mandated coverage without cost sharing of COVID-19 testing and treatment. In exchange, states received an extra 6.2 percent in medical FMAP through the end of the calendar quarter in which the PHE ends. Other measures existed and were triggered by the declaration of the PHE, including 1135 waivers. CMS encouraged states to examine all the flexibilities and temporary policies that were made available at the beginning of the pandemic and to decide whether they should be terminated early, terminated at the end of the PHE, or maintained on a temporary or permanent basis, if possible. Flexibilities that could be terminated early, CMS says, include exceptions to meeting federal timeliness standards for processing applications and redeterminations. The agency recommended returning to normal operations on applications and redeterminations as soon as possible to ensure that they are able to comply with timeliness standards when the PHE ends. On the other hand, CMS said that flexibilities such as allowing the use of telehealth in 1915(c) waiver populations could be extended through a state plan amendment (SPA) or a modified 1915(c) waiver. Such modifications to benefits could be permanently extended, though it would require state action