Health Policy Report (1/6)

The Week Ahead

Lawmakers are set to begin the second session of the 116th Congress this week, with the Senate returning this afternoon and the House reconvening tomorrow. While Senators await next steps in the impeachment process, the upper chamber is expected to resume consideration of pending presidential nominations. The Senate will resume consideration of Jovita Carranza's nomination to be Administrator of the Small Business Administration later today.

In the House, lawmakers will consider a bill that seeks to address controversial “forever chemicals.” The measure would require Environmental Protection Agency (EPA) to designate all perfluoroalkyl and polyfluoroalkyl substances (PFAS) as hazardous substances, while also setting up a grant program to award funding to communities with water supplies contaminated by the chemicals. During the fiscal year (FY) 2020 National Defense Authorization Act (NDAA) negotiations, House Democrats pushed for significant PFAS measures in the final bill, but many of the provisions were scaled back or removed prior to enactment. 

May Deadline for ‘Extenders’ will Drive Health Care Legislation in 2020

House Speaker Nancy Pelosi (D-CA) announced last week that Democrats will prioritize getting health care legislation signed into law when lawmakers return to Washington. She stated in a “Dear Colleague” letter that Democrats will “press the President and the GOP Senate to pass the Lower Drug Costs Now Act into law,” as well as prioritizing “ending the financial unfairness of surprise billing.” Although lawmakers believed last year that drug pricing legislation would need to be included in the year-end funding deal due to the difficulty of striking a deal in an election year, Senate Finance Chair Chuck Grassley (R-IA) and Speaker Pelosi necessitated a must-pass health package in 2020 by electing to only include five months of Medicare and Medicaid extenders in the year-end spending bill. Senior Democratic aides also indicated their belief that President Trump may feel additional pressure to deliver on promises to lower drug prices as his re-election approaches, allowing additional leverage for Democrats to convince the president to support an aggressive drug pricing bill.

President Trump has previously indicated support for a less ambitious drug pricing bill in the Senate due to Republican opposition to the inclusion of government price negotiation policies in the House bill. In an effort to turn up the heat, House Energy and Commerce Chair Frank Pallone noted that “the President said, when he ran and until relatively recently, that he would support negotiated prices, and I expect at some point he’ll come back to that, and we’re going to keep pushing the Senate to try to achieve that.”

Blue States Ask Supreme Court to Review ACA Decision Immediately

A group of 20 states led by California have filed a petition for a writ of certiorari to the Supreme Court, requesting that it take up an appeal of a suit challenging the constitutionality of the Affordable Care Act’s (ACA) individual mandate following last month’s Fifth Circuit Court decision to send the suit back to a district court. The Fifth Circuit directed the lower court to determine how much of the ACA is “severable” from the individual mandate, which it agreed is unconstitutional. In the petition filed today, California and its partners argue that the case is urgent and that the fate of the ACA should not be left in limbo, noting that insurers must decide how to structure their products and that the uncertainty brought by the case prevents them from doing so. Providers and patients also face uncertainty from the litigation, they add. They also argue that the decisions in the case thus far are wrong and should be reviewed by the Supreme Court. The House of Representatives, which has also argued to protect the law, will file its own petition asking for the Court to review the case this term.

Should the Supreme Court decide to hear the case, there would probably be a ruling in the summer of 2020 and the scope would likely be limited to the constitutionality of the individual mandate. The plaintiffs argue that “[t]here is no need to consider issues of severability at all because no plaintiff has established standing and, in any event, an unenforceable minimum coverage provision does not offend the Constitution.” Whether the Supreme Court takes the case is linked to the proximity of the Court’s work this term, as well as the amount of work that it has already agreed to undertake. If the appeal is accepted, the move would bypass months or years of litigation at the District Court level and then back to the Fifth Circuit before eventually landing back at the Supreme Court.

Trump Administration Calls for Ban of Flavored Vaping Products

Last Thursday, the Food and Drug Administration (FDA) ordered a ban on manufacturing, distributing, and selling all flavored vaping products except those containing tobacco or menthol flavors. Administration officials announced that the ban, which goes into effect early February, is aimed at stemming a surge in teen vaping by targeting the products that put teens at greatest risk. The announcement follows months of public back-and-forth from the President on how the handle the growing vaping public health issue and drew criticism from Democratic lawmakers and health organizations for not fulling banning vaping products. Department of Health and Human Services (HHS) Secretary Alex Azar said the administration’s action would “strike the right public health balance by maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco.” The ban exempts “open tank systems,” although they use flavored e-liquids, because they are not as popular with young people.