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Federal Focus

Infrastructure

In March, President Biden released his two-part, $3 trillion jobs and infrastructure proposal. The American Families Plan includes key Biden campaign priorities such as universal pre-K, childcare support, tax cuts for lower- and middle-income workers, free community college, and paid family leave. The American Jobs Plan would create jobs to repair and replace roads, bridges, and transit systems and expand broadband systems across the country. In the federal infrastructure plan, explicit health care priorities are not included; however, health care entities like the American Hospital Association are advocating for an investment of for least $58 billion to be included. The funds would support the health infrastructure – public health, hospitals, and health systems. Additionally, BJC joined the effort in advocating for $5 billion for hospital gun violence prevention programs to be included in the infrastructure package. The infrastructure proposal includes two pay-fors from health care: unused hospital relief funds and continued sequestration cuts for hospitals. Currently, Congressional leaders are negotiating the infrastructure package.

340B

In orders released on July 2, the Supreme Court of the United States agreed to hear a legal challenge to the ongoing payment reductions for prescription drugs purchased through the 340B Drug Pricing Program. The court agreed to hear the case brought by the American Hospital Association, the Association of American Medical Colleges, America's Essential Hospitals, and several individual hospitals challenging the decision made during the Trump administration to reduce Medicare reimbursement for 340B drugs from Average Sales Price (ASP) + 6 percent to ASP - 22.5 percent. Hospital groups have argued that the significant reduction made by CMS as a part of the annual Outpatient Prospective Payment System (OPPS) rule exceeded the agency’s authority. A federal district court agreed, ruling against the administration in late 2018, only for a federal appeals court to overturn the decision last summer finding that the cuts were within the agency’s authority. The arguments are expected to focus on the so-called “Chevron deference” which is a legal doctrine that provides latitude to federal agencies in how they may interpret statutes to implement laws and operate established programs. In this case, hospitals argue that CMS exceeded what is allowed under Chevron in making such significant reimbursement changes by implementing new cost-based rates without collecting or relying on hospital acquisition cost survey data as required by statute. Further, hospital groups argued that it was important for the court to hear the case because it had a multi-billion-dollar impact on 340B eligible hospitals, and as the administration is in the process of promulgating additional regulations, such as the CY 2022 OPPS rule, they may continue to overlook statutory requirements. Oral arguments before the Supreme Court have not yet been scheduled but are expected to be this fall.

BJC, along with UMPC, Yale New Haven, and Vanderbilt filed an amicus (friend of the court) brief in support of the underlying case brought by AHA with Henry Ford Health System as the lead plaintiff.  This has been a long road and we are all pleasantly surprised that the Supreme Court agreed to hear this case.

Telehealth

President Biden’s initial infrastructure bill and current bipartisan bill funds broadband expansion, a key component to provide telehealth services across communities. There are a number of other bills in Congress to expand telehealth access ranging from expanding the accessibility to certain telehealth services under the Medicare program to integrating telehealth models in maternity care. The bills differ in only applying to periods of declared of Public Health Emergency and permanent expansion.

Senators Roy Blunt and Chris Murphy and Representatives Debbie Dingell and Bob Latta co-sponsored the Temporary Reciprocity to Ensure Access to Treatment (TREAT) Act. It would temporarily give license reciprocity to health care professionals during and for up to 180 days following the current Public Health Emergency. It would also provide HHS the ability to expand license reciprocity during future major disasters or emergencies.

In the CMS CY 2022 Physician Fee Schedule proposed rules, there are provisions to expand Medicare coverage for telehealth services that address mental health and substance abuse issues and extending most COVID-19 waivers until the end of 2023. The Biden Administration expressed support for expanding telehealth to utilize it in greater ways. The Administration also supports broadband expansion for all communities, rural and urban, to allow telehealth services to be utilized by all Americans universally. At a minimum, BJC joins our colleagues in advocating for a two-year continuation of the telehealth waivers in effect currently due to the COVID-19 pandemic.

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Page updated 08/25/2021

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