As we near the end of the 118th Congress and head into a lame duck session postelection, policymakers are eyeing opportunities to reauthorize health programs that expire in December and also pass larger health reforms before the new Congress is sworn in.
Congress voted for a continuing resolution that extends fiscal year (FY) 2025 funding through Dec. 20, setting up a legislative vehicle for health care policies to ride on.
The end of the Congress sees the retirement of numerous health care leaders including House Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers (R-WA), House Energy and Commerce Health Subcommittee Ranking Member Anna Eshoo (D-CA) and Reps. Michael Burgess (R-TX), Brad Wenstrup (R-OH) and Larry Bucshon (R-IN). It is likely that these retiring members will have priorities they will lobby to include in an end-of-year package. For example, Chairwoman Rodgers has been a proponent of passing privacy legislation before her term ends, and Rep. Burgess has advocated for averting physician fee cuts and also repealing the physician-owned hospital ban.
This article discusses health care policies that could be included in an end-of-year package at the end of the 118th Congress.
Medicaid/Medicare Policies and Public Health Extenders
Funding for several popular health care programs are set to expire by Dec. 31, 2024, including funding for Community Health Centers (CHCs), the Special Diabetes Program, the National Health Service Corps, the No Surprises Act Implementation Fund and teaching health centers that operate graduate medical education (GME) programs. Other notable provisions that expire at the end of the year include Acute Hospital Care at Home waivers, work geographic adjustments under the Medicare physician fee schedule, Medicaid Disproportionate Share Hospital (DSH) allotment reduction delay, Medicare Inpatient Prospective Payment System (IPPS) adjustment for low-volume hospitals, the Medicare-dependent hospital (MDH) program and the revised phase-in of Medicare clinical laboratory test payment changes. Furthermore, Congress may want to avert cuts to the Medicare Physician Fee Schedule; however, many members have started working on Medicare payment reform but will not have enough time this Congress to implement a permanent policy change.
Medicare Telehealth Flexibilities
Telehealth flexibilities for individuals with Medicare are also set to expire on Dec. 31, 2024. These flexibilities were created during the COVID-19 pandemic and then were extended for two years post-pandemic. This includes reimbursement for telehealth services in any geographic area, allowing patients to remain in their homes for telehealth visits rather than requiring travel to a health care facility, and delivering telehealth using audio-only technology if a patient cannot use both audio and video, among other flexibilities. The use of telehealth to conduct face-to-face encounters before recertifying eligibility for hospice care during an emergency period is also set to expire. Multiple committees have already proposed bipartisan legislation to extend telehealth coverage for at least two years or make it permanent, such as the Telehealth Modernization Act (H.R. 7623), Preserving Telehealth, Hospital and Ambulance Access Act (H.R. 8261) and CONNECT for Health Act of 2023 (H.R. 4189/S.2016).
PBM Transparency
Key congressional committees have passed bipartisan legislation to increase transparency for pharmacy benefit managers (PBMs) to reduce overall health care costs. The House passed the Lower Costs, More Transparency Act (H.R. 5378) by a 320-71 vote under suspension of the rules in December. The bill would require PBMs to semiannually provide employer-sponsored health plans with data on prescription drug spending, ensure that PBMs contracting with Medicaid managed care organizations (MCOs) are prohibited from spread pricing, require Medicare Advantage (MA) organizations to report to the Department of Health and Human Services (HHS) information on providers, PBMs and pharmacies they share ownership with, require the Medicare Payment Advisory Committee (MedPAC) to study and report on vertical integration among PBMs and enhance requirements for PBMs to disclose their compensation to plan fiduciaries, among several other provisions.
On the Senate side, the Senate Finance Committee also advanced legislation focused on PBM transparency, passing the Better Mental Health Care, Lower-Cost Drugs, and Extenders Act (S. 3430) out of committee by a 26-0 vote. The package includes several PBM reforms by creating a new designation for essential retail pharmacies as well as a regulation that each contract between a Part D plan and a PBM would be required to include a written agreement specifying that the PBM reimburse the sponsor for any civil monetary penalties related to violations of certain provisions no later than Jan. 1, 2028.
Although there has been no reconciliation between chambers, PBM reform could be included in an end-of-year package as a pay-for to offset the cost of other policies.
340B Reform
The 340B program has been the topic of increasing congressional oversight, and policymakers have argued that the current program lacks transparency and fails to pass savings to patients. In February, the Senate 340B Bipartisan Working Group, which includes Sens. John Thune (R-SD), Debbie Stabenow (D-MI), Shelley Moore Capito (R-WV), Tammy Baldwin (D-WI), Jerry Moran (R-KS) and Ben Cardin (D-MD), released a legislative discussion draft, the SUSTAIN 340B Act, to reform the program. It aims to clarify the contract pharmacies that covered entities partner with to dispense 340B drugs, define “patient,” enhance program transparency, prevent duplicate discounts and impose a user fee from 340B savings.
On the House side there is competing 340B legislation. Reps. Larry Bucshon (R-IN), Buddy Carter (R-GA) and Diana Harshbarger (R-TN) introduced the 340B ACCESS Act (H.R. 8574), which aims to establish enforceable rules to enhance federal administration and oversight of the 340B program, such as setting clear criteria for 340B contract pharmacy arrangements. Rep. Doris Matsui (D-CA) introduced the 340B PATIENTS Act (H.R.7635), which codifies 340B providers’ ability to use contract pharmacies to dispense 340B discounted drugs and Sen. Peter Welch (D-VT) recently introduced the Senate companion bill. It is anticipated that this topic will continue to pick up traction as state legislators continue to pass their own 340B legislation. Given the varied proposals, and lack of movement in committee, it is unlikely 340B reform will gain traction this Congress.
Public Health Programs
There are a number of reauthorizations for public health programs that lapsed last year, which include the SUPPORT Act, the Pandemic and All-Hazards Preparedness (PAHPA) Program, the President’s Emergency Plan for AIDS Relief (PEPFAR) Program, and the Children’s Hospital Graduate Medical Education (CHGME) Program.
Many congressional members would like to include provisions from the SUPPORT Act and PAHPA in an end-of-year package. The SUPPORT ACT (H.R. 4531) passed out of the House in a bipartisan vote 386-37. The bill would reauthorize key programs for patients with substance use disorder and permanently extend required Medicaid coverage for medication-assisted treatments. The Senate HELP Committee advanced its own reauthorization bill (S.3393) out of committee at the end of last year with some slight differences than the House version such as not permanently extending required Medicaid coverage for medication-assisted treatments. Similarly, the House and Senate have different versions of PAHPA where House Republicans did not include drug shortage provisions in their version whereas the Senate HELP Committee passed a version that included drug shortage provisions. Both chambers will need to reconcile the differences between the bills to include in an end-of-year package.
There is still no clear path forward reauthorizing PEPFAR for five years as the House and Senate remain divided. Both chambers came to agreement in the FY24 funding package to reauthorize the program for one year, but similar arguments remain over how much should be dedicated to PEPFAR and whether it should include abortion-related riders. With Speaker Johnson being extremely anti-abortion, negotiations for reconciliation will remain difficult as Democrats strongly oppose destabilizing the program in any way.
The CHGME program continues to receive increases through appropriations funding, but there is no clear path forward to reauthorize due to House Republicans wanting to include limiting language on gender-affirming care and Senate Democrats view this type of language as a nonstarter.
PASTEUR, legislation that encourages innovative drug development to combat antimicrobial resistance (AMR), and the VALID Act, legislation that regulates in vitro clinical tests, are two pieces of legislation that members would like to address in an end- of-year package. Both bills have not gone through regular order in their respective committees and may not have gained enough traction for Congress to include in an end- of-year package. Next Congress, these pieces of legislation may see movement, especially if there is a shift in power dynamics.
On the Horizon
With Congress extending government funding until Dec. 20, the magnitude of an end-of-year bill may be determined by the outcome of the November election. The party that wins the White House may be incentivized to punt funding into next spring to potentially achieve a better deal on government spending levels, depending on the makeup of the new Congress. If there is split control of the chambers, then the parties may be inclined to negotiate a bipartisan deal that could include more health care policies.
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