Washington Watch
Week of August 24, 2020

Carter L. Alleman, J.D.

House Returns to Focus on Postal Service
House Speaker Nancy Pelosi (D-Calif.) announced that she will call the chamber back this week to vote on legislation to prohibit the U.S. Postal Service from implementing any changes to the operations or levels of service it had in place on January 1, 2020. Previously, Majority Leader Steny Hoyer (D Md.) announced the September floor schedule for the House of Representatives. The September schedule will follow the same format as June and July. The first week of the month will be used for committee work. The House will be in session the following three weeks for votes on a range of bills, including to fund the federal government beyond the end of the month. The chamber will be on 24-hours’ notice to return for votes on COVID-related legislation.

Senate Recesses Without Deal on Next COVID-19 Relief Package
Senate Majority Leader Mitch McConnell (R-Ky.) decided to recess the Senate given the absence of a deal on the next coronavirus relief package. Negotiations between the administration and Congressional Democrats are deadlocked, with the two sides still at a disagreement on unemployment benefits, state and local aid, and liability protections. Each side also remains at odds on the total size of the relief package. Democrats in the House previously approved a $3 trillion bill and have offered to come down to $2 trillion. The White House is standing by the Senate’s $1 trillion proposal, although internal GOP divisions remain with some Senate Republicans standing in opposition to any additional funding. Talks officially collapsed on August 7, the last time key negotiators met in person. The Senate will continue to hold pro forma meetings through the end of the state work period and will formally reconvene on September 8. Senators will receive at least 24 hours’ notice to return if the stalemate is overcome and a vote is scheduled.

CMS Announces New Rural Health Models
The Centers for Medicare and Medicaid Services (CMS) announced an initiative last week containing new funding opportunities to increase access and improve quality in rural health care. The Community Health Access and Rural Transformation (CHART) Model is in line with the President’s recently issued Improving Rural Health and Telehealth Access executive order. The voluntary CHART Model will tie payment to value. Providers will have two options to participate: under the Community Transformation Track, up to 15 rural communities will have the opportunity to receive an upfront investment to implement care delivery reform, provide capitated payments, and take advantage of operational and regulatory flexibilities such as telehealth expansion. It would also allow participant hospitals to waive cost-sharing for certain Part B services and to provide transportation support and gift cards for chronic disease management. Under the Accountable Care Organization (ACO) Transformation Track, rural health care providers will receive upfront investments to enter into two-sided risk arrangements under the Medicare Shared Savings Program (MSSP) and will have access to all waivers available under that program. The model is designed to save an estimated $80 million in taxpayer money.

President Takes Executive Action as Stimulus Talks Break Down
In the wake of Democratic leaders and White House officials failing to reach a deal on a new coronavirus relief package, President Trump released a slate of new executive actions over the weekend. The moves include a payroll tax deferral for Americans making less than $100,000 a year from September through December, the provision of $400 a week in jobless benefits, an expansion of a congressionally approved eviction moratorium that expired in July, and relief for student borrowers.

The actions have been panned by congressional Democrats and some Republicans as an infringement on Congress’s power of the purse, and the moves will likely face legal changes. Many have also raised concerns about the negative impact the President’s actions could have on negotiations on the next stimulus bill. The Senate will remain in session this week to continue talks on the coronavirus relief package, cutting short the chamber’s August recess, which was scheduled to start last weekend.

President Signs Additional Executive Orders on Telehealth, Domestic Manufacturing
The President signed an executive order last week that aims to increase access to telehealth and support rural hospitals. The order proposes a permanent extension of certain telehealth policies instituted in response to the COVID-19 pandemic, such as the expansion of which services can be provided virtually. The order also proposes to retool the way that rural hospitals get paid, using optional pilot projects to test new financial incentives for providers who deliver higher quality care. The order requires a report examining policies to reduce maternal mortality, improve mental health care and health care outcomes in rural communities, and eliminate regulations that limit the availability of health care providers.

President Trump also signed an order to encourage the production of more drugs and medical supplies in the U.S. The order encourages buyers to purchase American-made products and loosens federal drug-safety and environmental regulations that the White House argues put domestic producers at a disadvantage. As directed by the order, the Food and Drug Administration (FDA) will determine the list of essential products used to respond to a public health crisis that will be covered by the executive order. The U.S. Department of Health and Human Services (HHS), Department of Defense, and Department of Veterans’ Affairs will be required to buy the U.S.-made treatments. Exceptions to the order would be made if it is in the public interest, the drug or device is not produced in sufficient quantities in the U.S., or if it raises prices. Senate Finance Committee Chair Chuck Grassley (R-Iowa) praised the action but also argued that Congress should act to further encourage domestic manufacturing.

CMS Proposes to Expand Telehealth Benefits
The Centers for Medicare and Medicaid Services (CMS) is proposing to expand certain telehealth benefits for Medicare beneficiaries beyond the COVID-19 public health emergency (PHE) The proposal follows an Executive Order on Improving Rural and Telehealth Access signed by President Trump last week and is in keeping with the agency’s Patients Over Paperwork initiative. CMS is proposing to permanently allow some of the 135 services that were added to the list of services that could be paid for when delivered by telehealth during the PHE and is requesting comment on other services to permanently add to the telehealth list. The agency also proposes to temporarily extend payment for other telehealth services through the calendar year in which the PHE ends.

CMS proposes to increase the value of services comparable to or including office/outpatient E/M visits in an effort to more appropriately recognize the value of care that requires face-to-face time with patients. CMS also proposes to make permanent certain changes to expand workforce capacity and bolster staffing levels in response to the pandemic. These changes include allowing nurse practitioners, clinical nurse specialists, physician assistants, and certified nurse-midwives (instead of only physicians) to supervise others performing diagnostic tests; clarifying that pharmacists can provide services as part of the professional services of a practitioner who bills Medicare; allowing physical and occupational therapy assistants (instead of only physical and occupational therapists) to provide maintenance therapy in outpatient settings; and allowing physical or occupational therapists, speech-language pathologists and other clinicians who directly bill Medicare to review and verify, rather than re-document, information already entered by other members of the clinical team into a patient’s medical record.

Public comments on the proposed rules are due by October 5, 2020. CMS Administrator Seema Verma has acknowledged that Congress would need to pass legislation to permanently change which providers can use telehealth and where patients can access it.