Health Policy Report (2/6)

February 6, 2023

Capitol Hill Update

Lawmakers will return to action this week, starting with the House later today and the Senate tomorrow. Committee work in the upper chamber will begin in earnest after the Senate adopted its organizing resolutions for the 118th Congress during last Thursday’s session. Senators will also resume their push to clear pending presidential nominations when they return tomorrow, starting with DeAndrea Benjamin’s nomination to be a Circuit Judge for the Fourth Circuit Court. Meanwhile, House Republican leadership has teed up legislation that seeks to terminate the Centers for Disease Control and Prevention’s (CDC) requirement for proof of COVID-19 vaccination for foreign travelers. The bill is expected to pass the House along party lines and meet resistance in the Democrat-controlled Senate.

Energy and Commerce Holds Hearing to Discuss Fentanyl, Substance Use Disorder, QALYs

The House Energy and Commerce Health Subcommittee held a broadly bipartisan hearing last week to address fentanyl scheduling and discuss banning the Quality Adjusted Life Year (QALY) measure in health care. Both Democrats and Republicans agreed that QALYs are a discriminatory measure that should be barred from use, but there was disagreement among advocates on the effects of a QALY ban for federal health care payers, as is included in the Protecting Health Care for All Patients Act (H.R. 485).

Regarding fentanyl, discussion centered on the class-wide scheduling of fentanyl as Schedule I and bolstering access to preventative treatment for substance use disorder (SUD). Members of the Committee agreed on the need for comprehensive care for individuals with an SUD, though Democrats and Republicans disagreed on whether class-wide scheduling would hinder medical research of fentanyl related substances (FRS). Some Republicans additionally shared concerns about the continued trafficking of FRSs into the U.S.

Key Senate Health Panel Taps Cassidy as Ranking Member

Sen. Bill Cassidy (R-LA) will officially be co-leading the Senate Committee on Health, Education, Labor, and Pensions (HELP) alongside Chair Bernie Sanders (I-VT). The formal decision to select Cassidy as Ranking Member will help to clear up some of the uncertainty surrounding the Committee’s projected priority list for the 118th Congress. Cassidy, the first medical doctor to serve as Ranking Member of HELP in recent history, plans to focus on Food and Drug Administration (FDA) oversight, health care cybersecurity, and antibiotic resistance. Notably, he is also interested in influencing telehealth regulations as the COVID-19 public health emergency (PHE) concludes this May. Cassidy has voiced his opinion that providers should be licensed in the states in which they practice and should be reimbursed less than their in-person counterparts.

CMS Releases Advance Notice of Methodological Changes For 2024 MA, Part D Payment Policies

Last week, the Centers for Medicare and Medicaid Services (CMS) released itsAdvanced Notice of Methodological Changes for Calendar year (CY) 2024 for Medicare Advantage (MA) Capitation Rates and Part C and Part D Payment Policies (fact sheet; press release). The Advance Notice builds on several policies included in CMS’ recent 2024 Parts C and D proposed rule that, once finalized, will comprise several important policy updates to MA and Part D payments. 

The Advanced Notice includes a 3.12 percent year-to-year reduction in plan payments as a result of proposed changes to the Risk Model. Despite this, CMS projects that plans will see a net 1.03 percent increase in payments overall in 2024. The notice additionally includes updates to key MA and Part D Star Ratings, potential new measure concepts, and certain existing quality measures as a means to align a set of core measures across federal programs and with private payers. Notably, included in these proposed policies are details about some of the changes to the Part D program resulting from the passage of the Inflation Reduction Act (IRA).

FTC Signals Scrutiny of Health Privacy Laws in Recent Action

Last week, the Federal Trade Commission (FTC) filed to fine GoodRx after the website shared consumer data with third-party platforms including Facebook and Google. This action represents the first time the FTC has sought to enforce the 2009 Health Breach NotificationRule. A federal court’s eventual decision regarding enforcement of the fine will set the tone for website owners’ business liability for selling user data to generate profits.

The 2009 regulation was crafted in collaboration with the Department of Health and Human Services (HHS) to fill in gaps in Health Insurance Portability and Accountability Act (HIPAA) standards. The FTC’s decision to address its concerns regarding GoodRx may signal what many policy experts view as the agency’s growing interest in protecting health data privacy. FTC Chair Linda Khan has publicly discussed keeping a close eye on online data sharing, especially in the health care realm, and the agency expects additional proposed rules to come out as soon as this year.

CMS Finalizes MA Risk Adjustment Data Validation Policies

The Centers for Medicare and Medicaid Services (CMS) issued a final rule (fact sheet) finalizing policies for the Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) program.  CMS is required to risk-adjust payments made to MA organizations based on the health status and characteristics of enrolled beneficiaries. RADV audits are CMS’ primary mechanisms for correcting overpayments to MA organizations. Notably, there has been political controversy around payment accuracy to MA plans, and some lawmakers have called on CMS to improve its payment processes.

CMS initially released the coordinating proposed rule in 2018, but finalization was delayed for several years due to the COVID-19 pandemic. Under the rule, CMS will begin extrapolating audit data beginning in plan year (PY) 2018 and collect overpayments made to MA organizations between 2011 and 2017. Additionally, the rule outlines the end of the fee-for-service (FFS) adjuster in RADV audits. The agency is not adopting a specific methodology for extrapolations at this time and will instead use existing methods.