Peter W. Thomas, J.D., Principal, and Joe Nahra, Director of Government Relations, Powers Law Firm

Joseph Biden has effectively become the President-elect of the United States in the wake of weeks of ambiguity following the 2020 elections. The transition between administrations has formally begun. The Democratic Party will maintain control of the House of Representatives, though with a slimmer majority than in the current Congress. As of this writing, Democrats hold 222 seats in the House to 205 seats for Republicans; 8 races remain uncalled. Control of the U.S. Senate is still undetermined, as both Georgia Senate seats are proceeding to runoff elections on January 5, 2021. Currently, Republicans will hold at least 50 seats and Democrats will hold 48 seats (including two Independent senators who caucus with the Democrats). Democrats will take control of the Senate only if they are able to pull off the unlikely task of winning both Georgia Senate seats, firmly held by Republicans in the recent past.

As Congress prepares to finalize legislative work for 2020 and move into the 117^th Congress, and as the Biden Administration prepares to transition into the White House, there are a number of healthcare priorities on the agenda for potential year-end passage and for 2021.

End of Session (“Lame Duck”) Preview

During the period prior to the transition to a new session on January 3 (the “lame duck” period), Congress must pass either a final Fiscal Year (FY) 2021 appropriations package or a “continuing resolution” to fund the government at current levels for a defined period of time. Currently, funding for federal government agencies and programs is set to expire on December 11; legislative action is required to prevent a government shutdown. This creates a must-pass legislative vehicle on which other bills can ride if there is sufficient bipartisan support. This includes short-term reauthorizations of healthcare provisions, known as “health extenders,” many of which AAPM&R has supported, which are also set to expire on December 11.

These reauthorizations include funding for community health centers; Graduate Medical Education (GME) funding; additional resources for outreach and assistance programs for low-income beneficiaries; extensions of the Money Follows the Person (MFP) program, Spousal Impoverishment and Community Mental Health Services demonstration programs; and further delays of payment reductions for Disproportionate Share Hospitals (DSH). Other priority Medicare and Medicaid proposals may able hitch a ride on this bill.

Additionally, Congress will likely continue negotiations for another COVID-19 stimulus deal, but it is unclear whether there is enough momentum to come to an agreement. Both Majority Leader Mitch McConnell and House Speaker Nancy Pelosi have said that they believe Congress could pass a bill before the end of the year. Though the pre-election sticking points remain in place on both sides, the election results may prompt an additional round of negotiations. Still, given the uncertain politics of the next several weeks, it is certainly possible that such legislation will not advance before 2021. Key issues to be discussed in a COVID-19 stimulus package include an extension of many of the COVID provisions in the “CARES” Act passed in April, with the possible inclusion of liability protections for businesses, state and local government assistance, and funding for COVID-19 testing, tracing, and vaccination efforts, to name a few.

Read this letter to Congressional leadership to learn about AAPM&R’s COVID-19 legislative priorities.

Finally, as some legislators prepare to leave Congress and others look to wrap up their 2020 agendas, there may be enthusiasm to attach bipartisan health policy bills to a larger package. Such bills could include some small-scale drug pricing reforms, surprise billing legislation, extension of expiring home infusion/home health programs, changes to the use of prior authorization in the Medicare Advantage program (AAPM&R has long been advocating for HR 3107), and other policy priorities that have long been championed by retiring members of Congress.

Healthcare Priorities for the 117^th Congress

In 2021 and beyond, there will be several healthcare policies on the Congressional agenda.

• Academy Priorities: AAPM&R will continue to press Congress on key policies impacting physiatrists and the patients we serve. At the Academy’s virtual Congressional Hill Day in early December, members will advocate for a permanent fix to the upcoming cuts in provider reimbursement under the 2021 Physician Fee Schedule in order to help ensure patient access; legislation to grant greater deference to physician judgment in determining the mix of skilled therapy services to be counted under the so-called “three-hour rule”; prior authorization reform for Medicare Advantage; a delay in the implementation timeline for a unified post-acute care payment proposal under the IMPACT Act; and other critical policies for rehabilitation patients and providers in any future COVID-19 stimulus package.
• Surprise Billing: Despite significant efforts in the 116^th Congress, House and Senate leaders were not able to come to an agreement to address reforms to “surprise” medical billing, which typically occurs when a privately insured patient receives out-of-network care under emergency circumstances. Several proposals on surprise billing were released in early 2020, and key committees are likely to revisit the discussions in the new Congress around how to limit surprise bills.
• Drug Pricing: Large-scale changes to drug pricing policies, such as those passed in 2019 by House Democrats in H.R. 3, are unlikely to proceed, but there may be room for bipartisan agreement on more marginal policies. Sen. Chuck Grassley will no longer lead the powerful Senate Finance Committee. However, his work with Ranking Member Ron Wyden on the Prescription Drug Pricing Reduction Act could form the basis for further bipartisan negotiations, including in such areas as an out-of-pocket cap for Medicare Part D drug costs, reduced cost-sharing for Medicare beneficiaries, and changes to the catastrophic phase of the benefit.
• Telehealth: Congress will also consider permanent extensions to new telehealth flexibilities provided during the COVID pandemic, which are set to expire when the declared public health emergency (PHE) comes to an end. The Centers for Medicare and Medicaid Services (CMS) has the authority to determine which services are eligible to be provided via telehealth; however, the existing geographic restrictions on which beneficiaries can receive telehealth and authorities for non-physician practitioners (including therapists) to provide telehealth will have to be statutorily expanded by Congress. There seems to be significant bipartisan agreement in both chambers that Congress should act to protect telehealth expansions after the PHE has ended; it is expected that many, if not all, of the policies comprising the new telehealth paradigm are here to stay in one form or another.

Key Biden Policy Goal: Controlling the COVID-19 Pandemic

President-elect Biden has stated that his top priority is controlling the COVID-19 pandemic. Among the key issues are mitigating spread of the virus, equitable and efficient distribution of safe and effective vaccines, and ensuring there are enough resources available to treat the expected rise in cases and hospitalizations. Below are some key areas the Biden team has identified for managing the pandemic.

• Ensure a Safe and Free COVID Vaccine: President-elect Biden has promised another $25 billion to ensure the rapid and safe development of a COVID-19 vaccine. As part of the vaccine development, the administration has also promised that the vaccine will be free for all Americans.
• Ensure COVID-19 Testing is Widely Available: President-elect Biden has pledged to make testing more widely available to every American at no cost through increased production of rapid at-home testing and the establishment of at least 10 drive-through testing sites per state.
• Implement Mask Requirements: The Biden Administration plans to work with Governors to implement expanded state mask requirements. President-elect Biden has said that he would consider a national mask mandate, although there are questions around his authority to do so.
• Tailored Lockdowns: The incoming administration is unlikely to implement a nation-wide lockdown; instead, they have indicated that they will tailor lockdowns and reopenings to the risk levels in individual communities.
• Increase Contact Tracing Efforts: President-elect Biden has promised to grow the current contact tracing workforce to 100,000, doubling the current workforce.
• Distribute More PPE and Ventilators: To increase the availability of personal protective equipment (PPE) and ventilators, President-elect Biden has said that he will more aggressively use the Defense Production Act, which requires manufacturers to prioritize the federal government’s supply chain needs.

Additional Biden Administration Priorities

Beyond the COVID pandemic response, one of the earliest healthcare priorities for a Biden administration will be shoring up the Affordable Care Act (“ACA”). The ACA is also facing a challenge in the Supreme Court, which could determine whether the law is upheld or struck down. If the latter occurs, an unlikely prospect, President-elect Biden and Democrats in Congress signaled that they would immediately seek to fill the gap in coverage for over 21 million Americans currently covered under the law. This would likely become the top priority for Democrats in Congress and the Biden administration. While large-scale legislative expansions of the ACA are unlikely, there are considerable opportunities for executive action to bolster the healthcare law.

• President-elect Biden is expected to reallocate funding to the ACA Navigator program for outreach and enrollment assistance, which was largely eliminated under the current administration.

• The ACA’s open enrollment periods could be extended, and the Biden Administration could also press forward with special enrollment periods during the COVID pandemic and future public health emergencies, options the currrent administration declined to offer.
• Democrats have opposed a long list of regulatory changes to the ACA’s operation and administration implemented during President Trump’s tenure, and many, if not all, of these regulations could be reversed by the Biden Administration, including regulatory adjustments to:
  • Short-term, limited-duration health plans;
  • The public charge rule, which impacts residency eligibility for low-income immigrants utilizing benefits like Medicaid; and
  • The ACA’s Section 1557 nondiscrimination provisions.

The Biden Administration has also signaled that it would seek to expand investment in community health centers, other rural providers, and the broader healthcare workforce; expand competitive bidding in the Medicare program; expand federal data collection and analysis to identify and help address health care disparities faced by racial and ethnic minorities and people with disabilities; combat healthcare marketplace consolidation; and advance demonstration programs to test innovative models and expand access to post-acute care and long-term services and supports.

There are also identifiable areas of overlap in terms of Biden and Trump Administration healthcare priorities, including: improving transparency on the pricing of healthcare costs, including drug pricing; and improving the healthcare supply chain and supporting “Buy American” policies. With a divided Congress likely, or a razor-thin Democrat-led Senate, many of the most sweeping proposals floated during the campaign are unlikely to reach the White House through the legislative process, including lowering Medicare eligibility to age 60, allowing government negotiation of drug prices in Medicare Part D, and creating a “public option” administered by CMS to increase competition and lower the price of private health insurance. In short, 2021 should be an extraordinarily busy year for healthcare policy and the impact it may have on physiatry and the patients we serve.