Legislative Update 1/16/2020

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Marilyn M. Singleton, MD, JD reviews the latest health policy news from Capitol Hill.

The House of Representatives has been embroiled in its impeachment (mis)adventure, but a few health bills have been introduced without any action. In the end it is the philosophical fight between government control or individual control over one’s medical care.

Lowering Prices of Prescription Medications

While there is much talk on lowering drug prices, an actual solution remains elusive. On the socialist end of the spectrum, we have Senator Elizabeth Warren proposing a federal drug manufacturing office to monitor and actually produce drugs. The Affordable Drug Manufacturing Act of 2020, S. 3162. https://www.govtrack.us/congress/bills/116/s3162/text

A companion bill, the Medical Innovation Act of 2020, S. 3163 would assess “supplemental payments” from certain drug manufacturers to “increase congressional investments in medical research.”  https://www.govtrack.us/congress/bills/116/s3163/text

Ex-presidential candidate Cory Booker proposed the Prescription Drug Affordability and Access Act, S. 3166, which would establish another federal agency to suck up our tax dollars: the Bureau of Prescription Drug Affordability and Access whose charge is to discuss how to “attain lower prescription drug costs for patients; decrease government expenditures on prescription drugs; and ensure access to prescription drugs.” https://www.govtrack.us/congress/bills/116/s3166/text

Nancy Pelosi’s Elijah E. Cummings Lower Drug Costs Now Act of 2019, H.R. 3, establishes several programs and requirements relating to the prices of prescription drugs. The bill requires the Centers for Medicare & Medicaid Services (CMS) to negotiate prices for certain drugs (current law prohibits the CMS from doing so). Specifically, the CMS must negotiate maximum prices for (1) insulin products; and (2) at least 25 single source, brand name drugs that do not have generic competition and that are among the 125 drugs that account for the greatest national spending or the 125 drugs that account for the greatest spending under the Medicare prescription drug benefit and Medicare Advantage (MA). The negotiated prices must be offered under Medicare and MA, and may also be offered under private health insurance unless the insurer opts out.

The negotiated maximum price may not exceed (1) 120% of the average price in Australia, Canada, France, Germany, Japan, and the United Kingdom; or (2) if such information is not available, 85% of the U.S. average manufacturer price. Drug manufacturers that fail to comply with the bill’s negotiation requirements are subject to civil and tax penalties.

The bill also makes a series of additional changes to Medicare prescription drug coverage and pricing. Among other things, the bill (1) requires drug manufacturers to issue rebates to the CMS for covered drugs that cost $100 or more and for which the average manufacturer price increases faster than inflation; and (2) reduces the annual out-of-pocket spending threshold, and eliminates beneficiary cost-sharing above this threshold, under the Medicare prescription drug benefit. https://www.govtrack.us/congress/bills/116/hr3/text

The Public Disclosure of Drug Discounts and Real-Time Beneficiary Drug Cost Act, H.R. 2115, requires the Centers for Medicare & Medicaid Services (CMS) to publish certain payment information, as reported by Pharmacy Benefits Managers (PBMs), relating to generic dispensing rates, drug discounts and rebates, and payments between PBMs, health plans, and pharmacies, in accordance with specified confidentiality requirements. The bill also provides statutory authority for certain provisions of the CMS rule titled “Modernizing Part D and Medicare Advantage to Lower Drug Prices and Reduce Out-of-Pocket Expenses,” published on May 23, 2019. The rule requires Medicare prescription drug plan sponsors to implement an electronic, real-time benefit tool that can provide prescribers with patient-specific, real-time formulary and benefit information, including information regarding cost-sharing, formulary alternatives, and utilization management requirements. The rule takes effect January 1, 2021.   https://www.govtrack.us/congress/bills/116/hr2115/text

The Affordable Medications Act, S. 1801 places duties on drug manufacturers to report multiple business costs, from their manufacturing costs to how much they spend on charitable care. Additionally, the bill proposes rules for importing drugs, caps on cost sharing in ACA plans, and negotiating Medicare prices, and penalties for delaying introduction of generics. https://www.govtrack.us/congress/bills/116/s1801/text


Universal Health Care: Government vs Private Solutions
Expansion of Medicare

The other push in health care arena is increasing affordability and access to medical care. One purported path is adding on more benefits to the current Medicare program such as vision services and dental services. The Medicare Vision Act of 2019, H.R. 4665, would include in regular Medicare routine eye examinations, including procedures performed during the course of such examination to determine the refractive state of the eyes, and contact lens fitting services. https://www.govtrack.us/congress/bills/116/hr4665/text

The Medicare Dental Act of 2019, H.R. 4650, would include in regular Medicare preventive and screening services, specifically oral exams, dental cleanings, dental x-rays, fluoride treatments. Medicare would also cover “basic and major treatments.” Basic treatments (which may include basic tooth restorations, basic periodontic services, tooth extractions, and oral disease management services); and major treatments (which may include major tooth restorations, major periodontic services, bridges, crowns, dental implants, and root canals). https://www.govtrack.us/congress/bills/116/hr4650/text

The Medicare Hearing Act of 2019, H.R. 4618, would pay for hearing exams and hearing aids. https://www.govtrack.us/congress/bills/116/hr4618/text

Ro Khanna (D-CA) (and of course co-sponsored by Rep. Ocasio-Cortez) introduced the State-Based Universal Health Care Act of 2019, H.R. 5010. This bill would allow Affordable Care Act waivers to provided federal support for state-based universal health care systems. https://www.govtrack.us/congress/bills/116/hr5010/text

On one hand, the government-centric folks have put forth many iterations of Medicare for All. Some bills have merely suggested a public option, such as the Medicare for America Act, H.R. 2452, https://www.govtrack.us/congress/bills/116/hr2452/text and the Choose Medicare Act, H.R. 2463, that adds Medicare Part E, an option to buy into Medicare. https://www.govtrack.us/congress/bills/116/hr2463/text

Freedom in Medicare

We can count on Sen. Rand Paul to look out for our freedoms. His Medicare Patient Empowerment Act of 2019, S. 2812 would allow Medicare beneficiaries to contract to receive medical services from providers of their choosing – whether or not they participate in the Medicare program. The contract cannot be made during an emergency or with someone who was excluded from the Medicare program. The patient is responsible for paying the professional and for submitting the bills to Medicare. State laws limiting charges for services are specifically preempted by this law. https://www.govtrack.us/congress/bills/116/s2812/text

Of note, Sen. Paul has also introduced the National Patient Identifier Repeal Act of 2019, S. 2538. In 1996, in response to the earliest nascent forms of electronic or digital health records, a portion of HIPAA mandated “unique patient health identifiers.” Similar to Social Security numbers, these were supposed to be numbers that tracked a specific patient across electronic health record systems in their dealings with doctors, physicians, and hospitals over the course of their life.

But starting in 1998, amid fears of government overreach or that the system would be misused, the annual Health and Human Services Department appropriations bill banned any federal funds from being used to develop the health identifier system. This ban was renewed every year between then and 2018, under both Republican and Democratic majorities.

But on June 12, 2019 the House voted 246-178 to “repeal the repeal” and federally fund patient identifiers after all, although the Senate later rejected this change. The vote was mostly along party lines, but not completely. Democrats voted 205–29 in favor (or 87% in favor), while Republicans voted 41–149 against (or 78% opposed).

Sen. Paul’s bill would indefinitely ban federal funding for patient identifiers. https://www.govtrack.us/congress/bills/116/s2538/text

 

Health Savings Accounts

The Increasing Health Coverage through HRAs Act, H.R. 5224, would codify the final rule (84 FR 28888) regarding Health Reimbursement Arrangements set forth on June 20, 2019 allowing HRAs funds to purchase private health insurance. https://www.govtrack.us/congress/bills/116/hr5224/text

Besides the obligatory new repeal the PPACA bill that clearly will go nowhere, HSA proposals are common sense freedom proposals but in today’s House of Representative have no chance of passing. There is a resistance to losing tax dollars (the tax free contributions to HSAs) that could be fed into Medicare. https://www.govtrack.us/congress/bills/116/hr2536/text

Free market inspired Health savings accounts (HSAs) have become more and more popular as a tool for paying for medical care. The number of Americans with an HSA has grown from 6.3 million in 2011 to more than 25 million in 2018. Price transparency becomes the watchword in medical care, direct payment through HSAs encourages cost-consciousness.

Bills allowing the expansion of health savings accounts have been proposed over the last few years without reaching the finish line. Pro-HSA congresspersons have tried chipping away at the restrictions, e.g., raising contribution limit, restrictions on eligibility, to no avail.

The Patient Fairness Act of 2020, H.R. 5566 would allow all individuals to contribute to an HSA. https://www.govtrack.us/congress/bills/116/hr5566/text

It seems Democrats are willing to hurt minorities to keep us from attaining more freedom in health care. The Native American Health Savings Improvement Act, H.R. 4530, would allow individuals who are eligible for a medical care program of the Indian Health Service or a tribal organization to participate in health savings accounts. https://www.govtrack.us/congress/bills/116/hr4530/text

The new comprehensive HSA bills are the Personalized Care Act put forth by Sen.Ted Cruz, S. 3112, and Rep. Chip Roy, H.R. 5596,. The bill would allow any person who has a group or individual health plan, health insurance coverage, including short term limited duration plans, a government plan (e.g., Medicare, Indian health Service, Medicaid, Children’s Health Insurance Plan), or participates in a health sharing ministry to contribute to HSAs.

The contribution limits are raised to $10,800 for individuals and $29,500 for families. HSA funds could be used to pay for insurance premiums as well as periodic fees in direct pay arrangements. Key for direct pay physicians, their arrangements will not be treated to be insurance and the fees will be treated as medical care. The bill also restores the purchase of over-the-counter drugs with HSA funds. https://www.govtrack.us/congress/bills/116/s3112, https://www.govtrack.us/congress/bills/116/hr5596/text

Things to Keep an Eye On

In January 2020, the Primary and Behavioral Health Care Access Act of 2020, H.R. 5575, was introduced to amend the Employee Retirement Income Security Act of 1974, title XXVII of the Public Health Service Act, and the Internal Revenue Code of 1986 to require group health plans and health insurance issuers offering group or individual health insurance coverage to provide for 3 primary care visits and 3 behavioral health care visits without application of any cost-sharing requirement. This could work to the detriment of direct primary care practices. https://www.govtrack.us/congress/bills/116/hr5575/text

 

While we would like to see the National Practitioner Data Back abolished, a bill was proposed to Permitting Medicare and Medicaid providers to access the National Practitioner Data Bank to conduct employee background checks. The bill is called the Promote Responsible Oversight and Targeted Employee background Check Transparency for Seniors Act or the PROTECTS Act, S. 2574. https://www.govtrack.us/congress/bills/116/s2574/text