What’s in the Surprise Billing Rule, and What Happens Next?

It’s the beginning of the end for surprise medical bills.  On July 1, the Biden-Harris Administration through the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (collectively known as the Departments), along with the Office of Personnel Management (OPM), released an interim final rule as a first step in implementing the No Surprises Act that was signed into law as part of the omnibus appropriations package in late 2020.  However, the regulations won’t go into effect until January 1, 2022, and stakeholders can provide comments by September 7.   

What’s In the Rule?

Below are the provisions in the interim final rule that establishes new protections from surprise billing and excessive cost-sharing for consumers receiving health care items and services.  

  • Surprise billing will be banned.  The interim final rule bans out-of-network charges for emergency services, regardless of location.  Providers are required to bill emergency services on an in-network basis without prior authorization. The rule also prohibits surprise billing for ancillary services at in-network facilities in all cases, including anesthesiology services. 
  • Patients must consent to waive balance-billing protections. The rule directs federal agencies to establish a process to allow patients to waive their balance-billing protections and consent to out-of-network charges.  Notably, providers are not allowed to request patient consent in three scenarios: (1) The provider provides an ancillary service not selected by the patients, such as a radiologist or anesthesiologist; (2) there are no in-network providers available at the facility; or (3) the service is urgent or arises from unforeseen circumstances.
  • Insurers have 30 days to issue an interim payment or notice of denial from insurers. The interim final rule requires health plans to make an initial payment or issue a notice of denial to providers in 30 days after it receives a clean claim. 
  • CMS must determine the qualifying payment amount. The rule calls on the Centers for Medicare and Medicaid Services (CMS) to define the qualifying payment amount (QPA), which will calculate patient cost-sharing and be used by an arbitrator in the independent dispute resolution process. The rule addresses several factors that will determine how the rates are set, including the type of contract, insurance market, geographic region, and rates for same or similar services. 
  • Insurers must provide more transparency.  The interim final rule requires health plans to take several steps to promote price transparency and by requiring them to provide an advanced explanation of benefits, transitional continuity of coverage when a provider leaves the network, and access to accurate provider network directories. 

What’s Next?

The interim final rule issued on July 1 is only the first step in a multipart regulatory process, as the Departments will need to issue two additional rules to fully enact the No Surprises Act. 

By October 1, the Departments are required to put forth a rule on an audit process to ensure that plans and insurers are complying with the QPA calculation and requirement.  The audit may be performed by federal or state officials, depending on who is enforcing the surprise bill.  Enforcement follows the same rules as the Affordable Care Act, with the federal government tasked with enforcing self-insured group health plans, while states may enforce rules over non-group health plans and fully insured employer-sponsored plans.  The rule expected by October 1 will contain details on how the auditing process will work as well as how federal agencies will address enforcement. 

By December 27, the Departments must outline through rulemaking the details of an independent dispute resolution (IDR) process that providers and health plans can opt for if they fail to reach an agreement on an out-of-network rate.  The IDR process is characterized as binding, baseball-style arbitration, meaning the arbitrator must select one party’s offer.  Federal regulators face the challenge of setting up an IDR process that’s considered fair but doesn’t cause providers and insurers to overuse the process and incur higher administrative costs.  The details of the IDR process have been debated repeatedly among stakeholders and are considered to be the most consequential part of the No Surprises Act.

What Are the Reactions?

Initial reactions to the interim final rule suggest the rule favors employers and insurers over hospitals.  The American Benefits Council, an organization who advocates for employer-sponsored plans, applauded the publication of the  interim final rule as it included many of the organization’s recommendations. However, the council noted that many key issues won’t be addressed until the release of the rule on the IDR process.  One fundamental issue the council cited is confirmation that either party participating in IDR can defer the QPA except in extenuating circumstances.  Similarly, the ERISA Industry Committee applauded the rule for “taking a firm stand” to protect Americans from surprise billing and address high health care costs.  In contrast, the California Medical Association said it has “serious concerns” about the new regulations, specifically as they pertain to the QPA, although the organization declined to specify its concerns.   

What Happened, What You Missed: June 28-July 2

Walensky: Vaxxed People Don’t Need to Mask Up for Delta

In a June 30 interview on Good Morning America, Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky said fully vaccinated people are safe from the Delta variant of COVID-19 and do not need to wear masks.  Walensky’s comments follow recommendations issued by the World Health Organization (WHO) on June 25 that urge even fully vaccinated people to wear masks and practice social distancing.  According to former Senior Advisor to the COVID-19 Response Coordinator Andy Slavitt, the differences between the WHO and CDC guidance can be attributed to the fact that the former concerns the entire globe, where vaccination rates in most countries are rather low, while the latter concerns the US, where vaccination rates are relatively higher.  Still, some jurisdictions are adding their own recommendations on top of the CDC’s.  On June 28, Los Angeles public health authorities recommended that all residents wear masks indoor regardless of vaccination status out of concern for the more transmissible Delta variant.  Similarly, Illinois Governor J. B. Pritzker suggested on June 29 that Illinois vaccinated residents consider masking up if they enter a “very crowded area.”  However, neither jurisdiction has officially reinstated a mask mandate. 

Researcher Say It’s Okay to Mix COVID-19 Vaccines

A study from Oxford University released on June 29 found mixing doses of Pfizer’s mRNA vaccine and AstraZeneca’s viral vector vaccine yielded a strong immune response against COVID-19.  According to the study, a dose of AstraZeneca and a dose of Pfizer administered four weeks apart regardless of order generated higher T-cells and antibodies than the standard two-dose AstraZeneca regimen.  The study’s findings come as more and more public health experts say a booster shot of Pfizer or Moderna’s mRNA vaccine may be needed to augment the protection offered from Johnson & Johnson’s single-dose vaccine, which is also based on viral vector technology. 

Biden Administration Announces New Proposals to Boost ACA Enrollment

On June 28, the Centers for Medicare and Medicaid Services (CMS) announced several plans to bolster the Affordable Care Act (ACA) in its proposed rule, which sets forth the proposed revised 2022 user fees for insurers offering plans on the ACA exchanges.  Among the changes the Administration is proposing includes extending open enrollment season by 30 days, eliminating the sign-up window for Americans who earn under 150% of the federal poverty level, and providing navigators $80 million for the next enrollment season by increasing insurers’ user fees by half a percentage point.  CMS is also notably proposing to reverse a policy finalized earlier this year by the previous Administration that would have allowed states to turn their insurance marketplaces over to private brokers and agents. 

ICER: New Alzheimer’s Drug Not Effective Enough to Justify High Price

The Institute for Clinical and Economic Review (ICER) issued a revised evidence report on June 30 saying that Biogen’s recently approved Alzheimer’s drug, Aduhelm (aducanumab), isn’t effective enough to legitimize its $56,000 price tag.  Instead, the group says the drug should be valued at $3,000 to $8,400 per year for patients with early-stage Alzheimer’s disease.  The group also found that Aduhelm’s “harms outweigh any potential benefits” for patients with more severe Alzheimer’s.  Aduhelm has come under increased scrutiny after the Food and Drug Administration (FDA) approved the drug despite the fact that one of the Aduhelm’s two phase 3 clinical trials failed to show positive efficacy. 

Pew: Suburban Voters, White Men, and Independents Helped Biden Win

A new analysis of the 2020 president election by Pew Research Center found  that a larger share of suburban voters, white men, and independents helped deliver a victory to Joe Biden, while Republicans gained the support of more Hispanic voters.  Pew’s report is considered more accurate than exit polls because it matches survey data with state voter records. 

ICYMI: Intelligence Officials Can’t Explain UFOs

On June 25, the Office of the Director of National Intelligence released a highly-anticipated report on UFOs, or unidentified ariel phenomena (UAP) in the military’s parlance.  Out of 144 UAP sightings listed, the report was only able to come up with an explanation for one, which was ultimately identified as a “large, deflating balloon.”  According to the report, the other 143 unexplained sightings fall into one of five categories: airborne clutter, natural atmospheric phenomena, US government developmental programs, foreign adversary systems, and a “catchall ‘other’ bin.”  The report notably states that UAPs may pose a challenge to national security, and the number of incidents may be under-reported due to the stigma associated with UFOs.

What Happened, What You Missed: June 21-25

President, Senators Reach Tentative Deal on Infrastructure

On June 24, President Joe Biden and a bipartisan group of 21 Senators reached an agreement on a sweeping $1.2 trillion infrastructure package that includes $579 billion in spending on physician infrastructure projects to improve roads, rail, broadband internet, and utilities.  With the backing of 11 moderate Republican Senators and 10 Democratic Senators, the proposal could presumably pass the Senate with the 60 votes needed to overcome a filibuster, provided all Democratic Senators support the measure.  However, Biden announced will only sign a physical infrastructure bill if a “human infrastructure” bill that support investments in childcare, paid leave, and caregiving is advanced in tandem.  The latter proposal contains policies popular with Democrats that can only likely pass the Senate through budget reconciliation. 

White House Projects It Will Miss July 4th Vaccination Goal

On June 22, the White House Coronavirus Response Coordinator Jeff Zeints said the US is unlikely to meet its goal of at least partially vaccinating 70% of adults by July 4th.  In recent weeks, the pace of vaccinations has slowed, particularly in the South and Midwest and among Americans aged 19-26.  At the moment, 70% of Americans aged 30 and up have received at least one dose.  Public health officials are urging all Americans to get vaccinated as the more contagious Delta variant spreads. 

Senate Republicans Block Voting Rights Bill

Senate Republicans invoked the filibuster to block Democrats’ For the People Act, a sweeping voting rights package that aimed to create national standards for early voting, ban partisan gerrymandering of congressional districts, and create a new public campaign financing system.   According to Senate GOP leaders, the bill represents a “power grab” that would undermine states’ abilities to oversee elections and pave the way for permanent Democratic control of Congress.  While Democrats contend their efforts on voting reform are far from over, there does not appear to be a strategy to realistically advance voting rights legislation so as long as the filibuster remains in place.

CDC ACIP Says Heart Inflammation an “Extremely Rare Side Effect”

On June 23, members of the Center for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices (ACIP) determined cases of heart inflammation in adolescents and young adults are likely related to mRNA COVID-19 vaccines produced by Pfizer and Moderna.  According to the CDC, there have been 1,226 reports of heart inflammation following the administration of roughly 300 million mRNA vaccine doses.  Fortunately, the cases were reported to be mild and resolved quickly.  Based on this information, ACIP members concluded that the side effects are “extremely rare” and urged all eligible people to continue to be vaccinated.

ICYMI: Star Wars X-Wing Fighter Getting Prepped for Smithsonian Appearance

An X-Wing starfighter prop used in production of the Star Wars sequel trilogy (2015-2019) is currently undergoing conservation at the Restoration Hangar of the Smithsonian’s Steven F. Udvar-Hazy Center in preparation to be displayed in the National Air and Space Museum in late 2022.  While the National Air and Space Museum is closed to visitors until July 31, Star Wars aficionados can purchase timed tickets to view the X-Wing at the Udvar-Hazy Center.  The X-Wing is on loan to the Smithsonian from Lucasfilm indefinitely. 

What the Rulemaking Process Means for Surprise Billing

The battle among healthcare stakeholders over how to address the issue of surprise medical bills isn’t over.  The FY 2021 omnibus appropriations bill passed at the end of last year included the No Suprises Act, language designed to alleviate financial burdens on patients that can result largely when patients see out-of-network providers.  The next step will be the Department of Health and Human Services’s (HHS) release of a rule to implement the new federal law that sets up guardrails for providers and insurers alike.    Patient groups and health care stakeholders have been working with the agency  to try shape the law in their favor.  What can we expect?

Timeline

With the first part of the interim final rule due July 1, 2021, it looks like the government is likely to meet its statutory deadline. The Centers for Medicare and Medicaid Services (CMS) sent the draft to the Office of Management and Budget for review on June 8.  By law, the ban on surprise billing is scheduled to go into effect on January 1, 2022. 

Surprise Billing Part One

The law sets up a multi-part regulatory process — the July 1st rule is expected to contain details on how plans will calculate the qualifying amount to determine a patient’s cost-sharing obligation for out-of-network medical bills.  The rule is also anticipated to include guidance regarding notice and consent requirements that government how an out-of-network providers should obtain a patient’s consent before treating the patient.  Two additional deadlines for agency rulemaking this year are: 1) October 1, to establish a process to audit health plans for compliance; and 2) December 27, creating an independent dispute resolution (IDR) process.

Questions for the Rulemaking Process

Many provisions of the new law will depend on regulatory interpretation and guidance, leaving the agency to  fill in the details. Two key policy areas stakeholders are closely watching including how rates will be calculated and patient consent to treat by out-of-network providers will be obtained.   

Rates.  CMS will determine how insurers should calculate the initial payment to out-of-network providers before either party agrees on a final cost.  Determining this rate will be no easy feat, as provider payment rates for health care services are the result of negotiations between insurers and providers and can vary plan by plan and provider by provider.  Providers may favor leverage gained in these negotiations under the new law that could result in higher payments.

Dispute Resolution Process.  If a provider and a health plan fail to reach an agreement on an out-of-network rate, either party can opt for a binding, baseball-style IDR process whereby the arbitrator must select one party’s offer.  During the IDR process, the arbitrator may consider several kinds of information, including median in-network rates, case mix, and the complexity of the service. The HHS, Labor and Treasury departments face the challenge of setting up an IDR process that is considered fair but doesn’t drive providers and insurers to overuse the process.  Based on experiences with New York state’s IDR process, some experts fear an overreliance on arbitration could lead to higher health care costs.     

Consent.  Out-of-network providers must obtain consent from patients seeking treatment for non-emergency services before treatment can begin.  Exceptions apply to anesthesiologists, pathologists, radiologists and other specialists that are among the largest sources of surprise bills.  There is concern about the potential for loopholes that might still allow patients to receive surprise bills, especially in the case where an out-of-network provider must obtain consent from a patient before treatment.  While requiring patients to provide consent may be well-intended, the US Public Interest Research Group points out that requiring consent essentially puts the patient back in the middle, counter to the goals of thelaw.

Other areas of regulatory interpretation are expected to include how to monitor and punish providers who violate the ban, and how to address situations where patients cannot meaningfully consent to out-of-network care, such as emergency care.

What Stakeholders Are Saying

From the beginning of the year, health care stakeholders have shifted their lobbying efforts from the Hill to federal agencies.  Since March, HHS has been holding calls with stakeholder organizations to obtain feedback.  Additionally, several organizations have written to HHS with their recommendations for implementation.  Below are some key requests from organizations that have written to the Department. 

The American Association of Orthopaedic Surgeons (AAOS) voiced support for using an in-network median rate based on the rate for all local health plans and not simply the products of the insurer during the IDR process.  AAOS also suggested creating specific criteria for determining what constitutes “good faith” to show that physicians have adequately engaged in the IDR process.

The Association of American Medical Colleges (AAMC) asked that HHS provide language or a template that out-of-network providers may use when obtaining permission from patients to provide medical services, as well as allow providers and health plans a minimum 30 days to kick off the IDR process and 30 days to submit their offer.  Notably, AAMC also recommended that HHS delay implementation of the surprise billing ban by at least one year due to the complexity of the law. 

A group of 30 patient and disease organizations including the American Cancer Society and the American Heart Association recommend that states and HHS engage in enforcement action when cost estimates provided to a patient in advance of a medical procedures differ significantly from the billed charges.  The organizations also argue  that states should be required to report enforcement activities related to the law to the federal government.

Insurers are equally concerned about the implementation of the law.  A recent survey of 100 executives representing 85 different health payers found 64% are concerned about the timeline of implementation, echoing AAMC’s concerns.  Additionally, 95% expressed concern about the health care system’s ability to achieve compliance by the January 1, 2022 deadline.

All Eyes on the Administration

With critical rulemaking expected to begin to come out this year, , the fight over surprise billing is far from overHospitals and insurers are directing their attention at regulators and top agency officials to shape the new surprise billing law in their favor and will likely call upon Capitol Hill for help resolving any ongoing concerns.  This means the conversation in Washington on surprise billing is sure to continue even beyond the implementation of thenew law, as stakeholders continue to scrutinize it and the Administration releases guidance related to the law.  The outcome of the Administration’s rulemaking is also important because it will send a signal about how aggressively the Administration plans to regulate the health care industry.

All About OMB

The Office of Management and Budget (OMB) may not get as much attention as other Cabinet-level agencies like the Departments of Defense and the Treasury, but that doesn’t mean OMB is any less important.  In fact, OMB plays a critical role in managing the operations of the federal government and the budget process.  More so, OMB is responsible for reviewing regulations that shape Americans’ daily lives.  So, how does OMB do this?

The History of OMB

OMB’s origins date back to 1921, when the Budget and Accounting Act of 2021 established the Bureau of the Budget at the Department of the Treasury.  The bureau was eventually moved to the Executive office of the President in 1939, where it was reorganized into the Office of Management and Budget in 1970. 

OMB Today

Comprised of nearly 500 career staff, The mission of OMB is to “assist the President in meeting policy, budget, management, and regulatory objectives and to fulfill the agency’s statutory responsibilities.”  OMB mainly carries out this mission through 5 main functions:

  1. Preparing a budget proposal to Congress;
  2. Supervising executive branch agencies;
  3. Reviewing all rulemaking and regulatory actions;
  4. Reviewing agency testimony, legislative proposals, and other communications with Congress; and
  5. Clearing Presidential Executive Orders.

Current Leadership

The organization is led by three-Senate confirmed positions: Director, the Deputy Director, the Deputy Director for Management.  The current Acting Director of OMB is Shalanda Young, who was confirmed as Deputy Director in March 2021.  The Biden Administration’s latest nominee for OMB Director is Kiran Ahuja, who previously served as Chief of Staff of the Office of Personnel Management and Executive Director of the White House Initiative on Asian Americans and Pacific Islanders during the Obama Administration.   While Ahuja, was favorably reported by the Senate Homeland Security and Governmental Affairs Committee, the Senate has yet to schedule a floor vote to consider her nomination. 

Extension of the President with Congress

OMB play 3 key roles for the President as the Administration interacts with Congress:  the budget, statements on legislation, and the Congressional Review Act. 

Budget.  While the Presidential budget submission to Congress typically happens around February each year, OMB is active long before the annual tome hits the streets.  OMB works on average six months prior by sending budget instructions to agencies and later reviewing and analyzing agencies’ formal budget proposals.  Additionally and throughout the year, OMB provides guidance on a range of budgetary topics, including government shutdowns, continuing resolutions, and agencies use of discretion with mandatory spending. 

SAPs.   OMB prepares Statements of Administration Policy (SAPs) on any pending legislative proposals that are not related to appropriations that communicate the President’s position on the affected legislation.  SAPs typically serve as a strong indicator of whether the President will veto or sign a bill into law.  OMB also reviews and clears congressional testimony, congressional correspondence, and draft bills from the agencies to ensure the documents are aligned with the Administration’s agenda. 

              Congressional Review Act.  The Congressional Review Act (CRA) is an oversight tool Congress can use to overturn a rule by a federal agency or department.  OMB is tasked with determining whether a rule is considered a “major rule” under the CRA.  In the case of major rules, Congress can pass a joint resolution of disapproval, which would veto the rule if signed into law by the President or approved by two-thirds of both chambers of Congress.

Role in Rulemaking

OMB plays a pivotal role in rulemaking, primarily through the Office of Information and Regulatory Affairs (OIRA).  Like its parent agency, OIRA is currently without a permanent leader; former National Labor Relations Board member Sharon Block has been serving as OIRA’s Acting Administrator since April 2021.  Under the current framework, OIRA is charged with reviewing all regulatory actions and determining whether the regulations are “significant” or “economically significant,” meaning they have an annual effect on the economy of $100 million or more.  For rules deemed significant and economically significant, however, agencies must submit several documents, including the draft text of the rule, an explanation of how the rulemaking will address a particular need, the potential costs and benefits of the rule, and in the case of rules considered economically significant, a regulatory impact analysis.

After receiving all necessary documents from agencies on significant rules, OIRA has 90 calendar days to review, with the option of extending the review period for one time by up to 30 days.  OIRA then proceeds to review the agency’s documents and return the rule to the agency in one of three ways:

  1. Consistent without change.  This means OIRA did not alter the proposed rule.
  2. Consistent with change.  This means OIRA generally agrees with the intent of the rule but made some substantive changes. This is the most common type of action OIRA takes.
  3. Returned.  This means OIRA has serious concerns with the agency’s proposed rule and does not approve the publication of a Notice of Proposed Rulemaking (NPRM). Returned rules are always accompanied by a return letter which is posted on OIRA’s online docket.   An example of a returned letter is a 2002 letter to the Office of Personnel Management rejecting proposed changes to the Federal Employee Health Benefits Program due to concerns over cost measurement and accounting principles.

Once OIRA has completed its review process, the proposed rule is published in the Federal Register in the form of a NPRM. The rule is opened to a public comment period generally lasting 60 days.  When the public comment period concludes, the agency makes any changes to the rule and resubmits it to OIRA for another round of review. Again, OIRA has 90 days to conducts its review process. When OIRA completes its final review, the agency may set a date for promulgation of the rule and publish the final rule in the Federal Register.  Members of the public can track rules under the review of OIRA at www.reginfo.gov.

Does OMB Matter?

Absolutely.  Even if OMB may not be mentioned as frequently as other agencies, its power cannot be understated.  OMB oversees a number of multi-trillion-dollar budgets that impact every aspect of American life, and OMB’s role in supervising federal agencies means it’s more or less in charge of 4.3 million federal employees.  Based on the goals of the Administration, OMB is an important partner with Congresson how much will be spent on health, defense, housing, and other key areas. 

Furthermore, OMB’s role in coordinating and reviewing regulatory action makes it a key player in the day-to-day actions in government.  Whether it pertains to Medicare reimbursement, FDA user fees, price transparency, or otherwise, all rulemaking and regulatory action is subject to OMB’s review.  Despite a lack of attention, OMB’s impact is far-reaching.

Did You Know?

Did you know that you can meet with OMB?  OIRA has an open door policy, which means the office takes meetings with outside stakeholders on regulations under review.  Meeting participants and materials are publicly disclosed and provide an interesting window into additional input the agency receives beyond formal written comments on the rule.  This month’s hot topic appears to be the physician fee schedule, among other health care related ruled. 

All About Executive Orders

A hallmark of President Joe Biden’s first 100 days in office were 52 executive orders aimed at reversing the previous Administration’s actions and addressing the COVID-19 pandemic.   In comparison, Donald Trump had issued 39 executive orders in his first 100 days, while Barack Obama and George W. Bush respectively clocked in at 34 and 13.  Given this trend for new Administrations to issue more and more executive orders, it’s no surprise why people are asking just what executive orders are and why they matter.

What Is an Executive Order?

An executive order is an official, legally binding mandate passed down from the President to agencies under the executive branch that gives agencies instructions on how to interpret and carry out federal law.  Executive orders are printed and numbered consecutively in the Federal Register, alongside other federal regulatory actions.  Additionally, executive orders have the force and effective of law, so as long as the order is based on power vested in the President by the US Constitution or delegated to the President by Congress. 

While the Constitution does not contain the term “executive order,” it does provide broad authority for the President to issue executive directives.  This authority derives from the “vesting clause” of the Constitution, which grants the President “executive power,” which has come to refer to the administrative actions of running the federal government.

Notably, executive orders are not legislation, and they do not require approval from Congress.  However, Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding necessary to implement the order.  Congress can also pass legislation to override an executive order, although this legislation would be subject to a presidential veto.  Only a sitting US President has the authority to overturn an existing executive order by issuing another executive order.

Important Examples of Executive Orders

Many impactful executive orders have been issued of the years – here are a handful of them:

  • Abraham Lincoln suspended the writ of habeas corpus during the Civil War via executive order in 1861.  Lincoln cited his authority to issue the executive order under the powers under the Constitution’s Suspension Clause, which states, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.”  Later, Lincoln issued two executive orders that comprised the Emancipation Proclamation, which he justified under wartime powers. 
  • Franklin Roosevelt established internment camps during World War II via an executive order.  He also used an executive order to create the Works Progress Administration.
  • Harry Truman signed an executive order in 1948 to end segregation in the armed forces.
  • Dwight Eisenhower used an executive order to put the Arkansas National Guard under federal control and to enforce desegregation in Little Rock, Arkansas in 1957.

Biden’s Executive Orders on Health Care to Date

President Biden’s executive orders so far have focused on the COVID-19 pandemic, including creating a response coordinator and requiring masks in airports.  Additionally, he established an additional special enrollment period via healthcare.gov, and set up a health equity task force to address the needs of communities of colors and underserved populations.

So, Do Executive Orders Really Matter?

The answer is…it depends.  Historically, most executive orders have been for administrative purposes, such as requesting reports or forming task forces.  Beyond that, the impact of an executive order is limited to both the power of the President and the law.  For instance, President Donald Trump’s executive order to construct a border wall along the US southern border was technically meaningless because only Congress has the power to appropriate funds for border wall construction. 

In practice, however, the impact of executive orders can be profound.  Even if executive orders do not change federal law, they serve as indicators of how the Executive Branch can be reshaped to carry out federal law in a way that reflects an Administration’s priorities.  While the Trump Administration’s executive order on the border wall did not immediately spark new construction on the southern border, it did represent a shift in how the executive branch carries out immigration law that Biden Administration has had a tough time reversing.  For instance, many federal agencies began to view legal immigration as something to restrict, contributing to a slowdown in legal immigration and changes personnel policies within relevant agencies.

The Week in Review: April 26-30

Biden Makes Sweeping Health Care Proclamations in Address to Congress

President Biden declared “health care should be a right, not a privilege” in his April 28 address to Congress, where he formally unveiled the American Families Plan.  This proposal would make $2 trillion in investments to education, childcare, and paid leave, as well as make permanent the American Rescue Plan’s two-year increase in Affordable Care Act (ACA) premium tax credits.  During the address, the President also voiced a commitment to allow Medicare to directly negotiate with drug manufacturers on prices, which is not included in the American Families Plan.  Biden said the savings accrued by empowering Medicare to negotiate on drug prices could be used to strengthen the ACA and expand Medicare coverage, hinting at previous calls to lower the Medicare eligibility age to 60 and create a public option. 

CDC Loosens Guidance on Wearing Masks Outdoors

On April 27, the CDC updated its guidance to say vaccinated Americans do not need to wear masks when outdoors, except when in large crowds.  Masks are still recommended for vaccinated people in indoor public spaces, however.  The updated guidance comes after the US reached a milestone of 50% of adults at least partially vaccinated on April 18 as well as calls from public health experts to remove outdoor mask mandates.  On April 28, National Institute of Allergy and Infectious Diseases Director Anthony Fauci said “more liberal guidelines” could be down the pike as vaccinations continue and infection levels drop.

CMS Proposes FY22 IPPS, Boost Residency Slots

CMS proposed a 2.8% rate increase in the agency’s Fiscal Year 2022 Inpatient Prospective Payment System (IPPS) rule on April 27.  The proposal would also add 1,000 physician residency slots in accordance with last year’s Consolidated Appropriations Act.  To advance health equity, the proposal seeks comment on ways CMS can improve reporting of health disparities and develop a health equity score measure.  Hospital stakeholders including the American Hospital Association reacted positively to a provision that would strike a requirement for hospitals to report their median payer-specific charges negotiated with Medicare Advantage plans.

GOP Lawmakers Come Together for Vaccine Ad

A group of Republican members of Congress who are also health care practitioners released a video on April 27 urging the public to get vaccinated against COVID-19.   Among the 10 Republicans featured in the video are Sen. John Barrasso (WY), a physician, Rep. Buddy Carter (GA), a pharmacist, and Rep. Brian Babin (TX), a dentist.  In the video, the lawmakers emphasized the vaccines’ safety and effectiveness, and they framed vaccinations as a step towards returning to normal life.  The video’s release follows numerous reports of high levels vaccine hesitancy among Republican men, which some public health officials fear could be a major obstacle to achieving herd immunity.

New Census Data Give GOP Upper Hand in Redrawing Districts

The latest data from the US Census Bureau shows a continuation in migration patterns towards the South and the West.  States in the Northeast and Midwest including New York, Pennsylvania, Ohio, Michigan, and Illinois, will each lost one House seat, while Oregon, Colorado, Montana, North Carolina, and Florida will each gain one seat.  The census data comes as many states across the country prepare to draw new congressional districts.  Many of the states that have gained a House seat are under Republican control, meaning the GOP will determine the redrawing of a plurality of new congressional districts. 

ICYMI: DC Has a New Underground Tunnel

It’s not just the US Capitol Complex and Metrorail system that have underground tunnels in the Washington, DC.  DC Water just completed work on a 5-mile long, 23-foot-wide tunnel under the city that will help prevent sewage overflows in the Anacostia River and stop flooding that has plagued neighborhoods like Bloomingdale and Le Droit Park in recent years.  The tunnel was constructed by an over 360-foot boring machine called “Chris.”  DC Water hopes the tunnel will help make the Anacostia River open to swimming and fishing in the future.