Health Policy Report (6/27)

June 27, 2022

President Joe Biden signed the Bipartisan Safer Communities Act into law over the weekend after both chambers reached a breakthrough on the package of gun safety and mental health policies last week. The bill enjoyed bipartisan support in both chambers as lawmakers faced increase pressure to act following several deadly mass shootings across the country earlier this month. The Senate now stands adjourned for the two-week Independence Day state work period and will return to Washington during the week of July 11.

In the House, lawmakers are not scheduled to vote this week but will instead meet for a series of hearings to close out the June work period. Notable committee work days include Energy and Commerce Subcommittee hearings on public health legislation and oversight of Medicare Advantage (MA) plans, as well as the full committee markup of the fiscal year (FY) 2023 spending bill for Labor-HHS-Education in the House Appropriations Committee.

New Bipartisan Gun Law Includes Key Behavioral Health Provisions

The Bipartisan Safer Communities Act (TRP summary) includes a myriad of mental and behavioral health provisions, including an expansion the Certified Community Behavioral Health Clinic (CCBHC) demonstration to allow all states to participate in the program. The legislation includes a number of mental health provisions that have been included in discussion drafts recently released by the Senate Finance Committee as part of their broader bipartisan mental health care initiative announced in February of 2022. Specifically, the Bipartisan Safer Communities Act contains a provision from the Senate Finance Committee discussion draft outlining their tele-mental health policies (TRP analysis), which would direct the Department of Health and Human Services (HHS) to issue guidance that intends to aid states in connecting Medicaid beneficiaries to telehealth services, including clarifications surrounding which flexibilities can be implemented without a waiver.

The legislation also includes two other provisions from the Senate Finance Committee discussion draft addressing youth mental health (TRP analysis) which would: (1) require HHS to issue guidance pertaining to students’ access to Medicaid services in schools; and (2) examine and dictate a report on state compliance with early and periodic screening, diagnostic, and treatment (EPSDT) services requirements. Additionally, the bill expands Pediatric Mental Health Care Access Program grants — along with additional funding for the 9-8-8 hotline, Project Advancing Wellness and Resiliency in Education (AWARE), and others — as well as continue the moratorium on the Trump-era rebate rule until 2027.

CMS Proposes CY 2023 ESRD Payment Updates

Last Tuesday, the Centers for Medicare and Medicaid Services (CMS) proposed its annual rule making updates to Medicare payments for renal dialysis services. The End-Stage Renal Disease (ESRD) Prospective Payment System (PPS)proposed rule (TRP analysis; fact sheet) would set payment rates for calendar year (CY) 2023 and would make changes to the ESRD Quality Incentive Program (QIP) to pause the use of specified measure data for both scoring and payment adjustment purposes. CMS says it expects to pay $8.2 billion for dialysis services in CY 2023 and is proposing to increase the PPS base rate to $264.09, an increase of $6.19 over CY 2022 rates. CMS estimates that ESRD facilities would see an increase of approximately $320 million in payments in CY 2023.

CMS updates its payment rates for the ESRD PPS each year. The ESRD Treatment Choices (ETC) Model is a mandatory payment model that tests the use of payment adjustments to encourage greater utilization of home dialysis and kidney transplants. It includes two payment adjustments, one to encourage home dialysis, and one based on a facility’s home dialysis rate and transplant rate among their patients. CMS will accept public comment on the proposed rule through August 29, 2022. Following the comment period, CMS will consider public input and will move to finalize the rule — possibly with modifications — in the Fall of 2022.

House VA Considers Veteran Health Care Legislation

Last week, the House Veterans’ Affairs Subcommittee on Health held ahearing (TRP summary) to consider six pieces of legislation that address the health needs of veterans. Conversations between members and witnesses from the Department of Veterans Affairs (VA) and veteran organizations (VO) focused primarily on access to reproductive health services in addition to mental health services and suicide prevention for veterans. The VA witnesses largely supported the intent and goals of the bills being considered, however, they provided technical changes and suggestions, claiming duplicity of VA initiatives and a lack of clarity within the legislative language. The third panel of witnesses from VOs voiced the need to reduce barriers to health care and promote equity and inclusion within all services for veterans.

During the hearing, Democrats supported bills that would expand access to reproductive health services for veterans, while Republicans raised opposition to these policies and further promoted legislation to reduce costs for the VA and modernize VA health care eligibility requirements. While the discussion around reproductive health services remained partisan, bipartisan agreement arose around the necessity to reduce veteran suicide rates.

CMS Proposes 2023 Home Health Payment Rule

Last week, the Centers for Medicare and Medicaid Services (CMS) proposed updates to the Medicare Home Health Prospective Payment System (HH PPS) for calendar year (CY) 2023 (TRP analysis; fact sheet). CMS issues payment rules for each of its prospective payment systems (PPS) on an annual basis. Payment rules update payment methodologies for each PPS, and the agency often packages major policy changes in along with the updates. Under the proposed rule, CMS estimates that Medicare payments to home health agencies in CY 2023 will decrease by 4.2 percent in the aggregate. Additionally, because the CPI-U for June 2022 is not yet available, the proposed rule does not include the final home infusion therapy payment amounts. 

As a means to “smooth” the impact of year-to-year changes in home health payments, CMS is proposing to establish a permanent mitigation policy that would impose a five percent cap on decreases in the HH PPS wage index for fiscal year (FY) 2023 and subsequent years. In addition, the proposed rule includes changes to the home health quality reporting program (QRP), to which CMS is proposing to end the suspension of non-Medicare/Medicaid Outcome and Assessment Information Set (OASIS) data collection for home health agency (HHA) patients. The proposed rule would additionally require HHAs to submit all-payer OASIS data for purposes of the HH QRP, beginning with the CY 2025 program year. The proposed rule is expected to be published in the Federal Register on June 23, 2022. Comments on the proposed rule must be submitted no later than August 16, 2022. 

Biden Administration Releases Spring 2022 Unified Agenda

 Earlier this month, the Office of Management and Budget (OMB) published the Spring 2022 Unified Agenda (TRP summary) outlining the forthcoming regulatory priorities of the Biden administration. Sam Berger, Senior Counselor to the Administration of the Office of Information and Regulatory Affairs at OMB, wrote that the new Unified Agenda details “additional actions Federal agencies are considering to help build on this progress over the coming months.” Further, he noted that the Department of Health and Human Services (HHS) “is considering regulatory action to better prevent disability discrimination in critical health and human services programs, including organ transplantation, life-sustaining care, and child welfare programs,” among other items.

The agenda includes several new items not previously published in the Fall 2021 Unified Agenda (TRP Summary). Notably, it contains proposed rules to implement changes to the Medicare Advantage (MA) (Part C) and prescription drug (Part D) programs for contract year (CY) 2024 and includes the HHS Notice of Benefit and Payment Parameters for 2024, which would set forth payment parameters and provisions related to the risk adjustment programs, cost-sharing parameters, and user fees for issuers offering plans on federally-facilitated Exchanges and State-based Exchanges using the federal platform. Regarding Medicaid, the agenda includes a rule proposing changes to the Medicaid managed care regulations, which would add parameters on states’ use of In Lieu of Services or Settings (ILOS) and state-directed payments under Medicaid managed care contracts, among other policy and reporting changes. Additionally, the Unified Agenda proposes to implement requirements set forth by section 203 of the Consolidated Appropriations Act, 2021 (CAA) related to Medicaid shortfall and third-party payments, as well as making technical changes to the disproportionate share hospital (DSH) program.