Health Policy Report (3/9)

March 9, 2020

The Week in Review

The race for the 2020 Democratic presidential nomination took a dramatic shift last week following the “Super Tuesday” contests. Former Vice President Joe Biden turned in a surprisingly strong showing in last Tuesday’s primary elections, winning ten out of the 14 states up for grabs: TX, NC, VA, MA, AR, AL, ME, TN, OK, and MN. The former Vice President’s performance propelled him over Sen. Bernie Sanders (I-VT) — who won CA, VT, UT, and CO — on the delegate leaderboard, establishing himself as the clear Democratic frontrunner for the 2020 nomination.

Back in Washington, Senators began consideration of a massive, bipartisan package of energy-related bills. Sponsored by Sens. Lisa Murkowski (R-AK) and Joe Manchin (D-WV), the American Energy Innovation Act compiles more than 50 bills that were considered by the Senate Energy and Natural Resources Committee over the last year aimed at fostering more innovation in clean energy technologies. In particular, the 555-page measure includes provisions that focus on energy efficiency, emerging renewable energy sources, energy storage, carbon capture technology, and nuclear power.

In the lower chamber, lawmakers passed a bill that seeks to boost workers’ rights and provide Title 5 status for Transportation Security Administration (TSA) employees. Despite some bipartisan support for the bill, however, it is expected to be dead-on-arrival in the upper chamber after the Trump administration issued a veto threat last week. The House also cleared suspension bills out of the Financial Services and Foreign Affairs Committees.

The Week Ahead

Congress will reconvene for legislative business this afternoon. On the floor, Senators will push to wrap up work on a bipartisan package of energy-related legislation. A vote on final passage of the bill — which seeks to promote more innovation in clean energy technologies — will likely occur in the middle of next week. In the House, lawmakers are expected to take up: (1) legislation that would limit the Trump administration’s authority to suspend or restrict immigration from predominantly Muslim countries; (2) a bill that would make certain that those held or detained while attempting to enter the U.S. are guaranteed access to legal counsel; and (3) a Senate-passed “War Powers” resolution that seeks to restrict President Trump’s ability to engage in military action against Iran absent Congressional approval.

Meanwhile, the race for the 2020 Democratic presidential nomination will continue tomorrow as voters in six states — ID, MI, MS, MO, ND, and WA — will head to the polls. Former Vice President Joe Biden, Sen. Bernie Sanders (I-VT), and Rep. Tulsi Gabbard (D-HI) will battle it out for the rest of the primary following the departures of Sen. Elizabeth Warren (D-MA) and former New York City Mayor Michael Bloomberg last week. With 1,991 delegates needed to clinch the nomination, Vice President Biden currently leads the field with 664 delegates following his “Super Tuesday” performance, followed by Sen. Sanders (573).

President Trump Signs Coronavirus Supplemental

House and Senate leaders reached a deal last week on a supplemental spending package to address the outbreak of the novel coronavirus, COVID-19, and President Trump signed the package into law last Friday. The $8.3 billion package — three times what the administration initially asked for — combines new funding for treatments for COVID-19, public health agencies, and community preparedness. The bill stipulates that vaccines, therapeutics, and diagnostics developed using funds authorized by the package must be made available to government purchasers for a “fair and reasonable” price but does not reference pricing in the commercial market.

The package authorizes $7.8 billion in discretionary spending, split between several different agencies. It also permits the Secretary of Health and Human Services (HHS) to waive certain telehealth restrictions in Medicare while there is a public health emergency surrounding COVID-19. Medicare providers would be able to furnish telehealth services to beneficiaries regardless of geography for the duration of the outbreak. That waiver is expected to cost just under $500 million.

Lawmakers also included language to prohibit using the funds provided by the package for anything other than coronavirus response. In addition, the bill provides: $3.1 billion for vaccine, therapeutic, and diagnostic development and purchase through the Public Health and Social Services Emergency Fund; $300 million in contingency funding for vaccines, therapeutics, and diagnostics; $836 million for the National Institute of Allergy and Infectious Diseases to prevent, prepare for, and respond to coronavirus; $2.2 billion for the CDC to support federal, state, and local public agencies during the outbreak, including funding for CDC’s repatriation and quarantine efforts, surveillance, and epidemiological investigations; $1 billion for Small Business Administration loan subsidies for businesses affected by the outbreak (scored at costing $19 million over ten years); and $1.2 billion for the Department of State’s response to the outbreak and for global health and stability programs.

The supplemental package states that government purchases of coronavirus therapeutics, vaccinations, and diagnostics shall be made according to Federal Acquisition Regulation guidance on “fair and reasonable pricing.” Medicare Part B covers many vaccinations including the seasonal flu vaccine and H1N1, and it is likely that Part B rather than Part D would cover an eventual COVID-19 vaccine. Additionally, the bill clarifies that the HHS Secretary may act under currently available authorities to ensure that vaccines, therapeutics, and diagnostics developed using this funding package will be “affordable” in the commercial market.

Supreme Court to Hear Affordable Care Act Case

The Supreme Court announced last Monday that it will hear the case seeking to overturn the Affordable Care Act (ACA). The Supreme Court will hear the case in its next term, which starts in October, despite initially turning down an earlier request from Democrats to fast-track a ruling by June. Democrats applauded the highest court’s decision to hear the case, as the fate of the health law is likely to influence the presidential election in November. It is unclear when the court will hear arguments, but those could come in October, before the election. Former Vice President and Democratic presidential candidate Joe Biden noted that the case was “a reminder of how much is at stake this fall and what’s on the ballot right now,” and said Democrats must nominate the candidate whom they know can beat Trump…and can protect health care for generations to come.” Additionally, a spokesman for the Democratic Senatorial Campaign Committee called the lawsuit the “single most important issue in Senate battlegrounds across the country.” Although Health and Human Services (HHS) Secretary Alex Azar has maintained that the administration doesn’t need to release an alternative plan unless the Supreme Court rules against the ACA, the court’s looming review could put more pressure on Republicans to articulate how they would prevent massive disruption should the lawsuit ultimately succeed.

CMS Announces New HCPCS Code for COVID-19 Testing

Last Thursday, the Centers for Medicare and Medicaid Services (CMS) announced that it had developed a new Healthcare Common Procedure Coding System (HCPCS) code for billing certain diagnostic tests for the novel coronavirus, COVID-19. The new code for billing tests for COVID-19 will help with tracking new cases of the illness and provide for the billing of additional tests. Last month, CMS created a HCPCS code for billing COVID-19 diagnostic tests in Centers for Disease Control and Prevention (CDC) laboratories. The new code announced last week allows for the billing of non-CDC laboratory tests as testing advances and no longer needs to be completed by the CDC. For those interested, the CDC laboratory test code is U0001 and the new non-CDC test code is U0002. Prior to the development of the codes, providers would have used an “unspecified” code.

CMS Notifies States of Strengthened CHIP Behavior Health Coverage Requirements

Last Monday, the Centers for Medicare and Medicaid Services (CMS) sent a letter to state health officials explaining the implementation of a SUPPORT Act provision that requires CHIP coverage of mental health and substance use disorder (SUD) treatment. The letter, which was accompanied by a template for a state plan amendment (SPA) to implement the statute, notes that most states have elected to provide the required behavior health care coverage to their CHIP populations although some states may need to bolster their coverage. Under Section 5022 of the SUPPORT Act, states are required to provide coverage of a broad array of screenings and preventative coverage in accordance with recommendations from the American Academy of Pediatrics and the U.S. Preventative Services Task force. They must also provide medication-assisted treatment (MAT) for opioid use disorders and tobacco cessation as well as provide a complete array of behavioral health benefits to treat a broad range of conditions.

In order to demonstrate compliance, states must submit a SPA to CMS addressing the changes mandated by Section 5022 of the SUPPORT Act. The SPA must have an effective date of October 24, 2019, which means that each state must submit its SPA by the end of the state fiscal year that includes that date.