The “Committees of Jurisdiction” That Shape Health Care Policy in Congress

Congressional committees help Congress with the important work of reviewing, debating, and passing legislation.  As Congress considers legislative action on drug pricing, paid leave, and other key health care policies, it’s important to understand a committee’s “jurisdiction,” or its area of responsibility.  The jurisdiction of each Senate committee is specified in Senate Rule XXV, while each House committee draws from House Rule X.  The following list contains each congressional committee that has  jurisdiction over health policy, along with a brief description of each committee’s role, issues that each committee covers, and the recent activities of each committee.  

Senate Finance Committee

This committee, in addition to various issues related to taxation and trade, oversees health programs under the Social Security Act, such as Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), Temporary Assistance to Needy Families (TANF), and other programs financed by a certain tax or trust fund.  The committee also shares or has sole jurisdiction over numerous departments and agencies, including the Department of Health and Human Services (HHS), which includes the Centers for Medicare and Medicaid Services (CMS) and the Administration for Children and Families, and the Social Security Administration.  The committee is additionally tasked with reviewing nominations for the HHS Secretary, the CMS Administrator, and other high-ranking appointed positions with HHS and other departments under its jurisdiction.  Furthermore, the committee oversees employer-sponsored insurance per the Employee Retirement Income Security Act of 1974. 

Recent Activity: Separately, leaders of the Senate Finance Committee are working on legislation to address drug prices.  In June, Chairman Ron Wyden (D-OR) released a set of principles on legislation to lower drug prices that includes allowing for government negotiation of drug prices and changes to the Medicare drug benefit design.  Additionally, Ranking Member Mike Crapo (R-ID) and Sen. Richard Burr (R-NC) recently reintroduced the Lower Costs, More Cures Act, which does not provide for government negotiation of  drug prices but also include benefit design.

Senate Health, Education, Labor, and Pensions Committee

Commonly abbreviated as “HELP,” this committee has wide jurisdiction over health care, education, labor and retirement policies, and public welfare.  Broadly speaking, the issues it deals with entail biomedical research and development, public health, and occupational health.  The HELP Committee also has jurisdiction over matters within the Food, Drug, and Cosmetics Act, and the Commissioner of Food and Drugs is subject to the committee’s nomination process.

Recent Activity: The HELP Committee has spent much of this year focusing on the response to the COVID-19 pandemic with regards to vaccinations, behavioral health, and preparing for the next public health crisis.   Its next hearing on the COVID-19 response is currently scheduled for July 20

Senate and House Judiciary Committees

Broadly, these committees consider legislation related to the judicial system and play a critical role in providing oversight of the Department of Justice (DOJ) and the agencies under the Department’s jurisdiction, including the Federal Bureau of Investigation (FBI), and the Department of Homeland Security (DHS).  In particular, the Senate Judiciary Committee considers executive nominations for positions in the DOJ, FBI, and DHS.  The Senate committee also reviews all judiciary nominations, including Supreme Court, appellate court, and district court nominees.  Specific to health care, both committees review matters relating to antitrust law, such as the merger and acquisition of health providers.  The committees also review patent law issues as they apply to drug and medical device manufacturers. 

Recent Activity: The Senate Judiciary Committee has focused much of its work in July on reviewing and voting on the Administration’s judicial nominees.  Other issues of note have focused on anti-competitive behavior among health care providers, particularly as it relates to drug pricing and hospital consolidation.  Meanwhile, the House Judiciary Committee recently advanced several antitrust bills and has held similar hearings on anti-competitive behavior in health care as well as voting rights and immigration.

Senate and House Appropriations Committees

These committees are responsible for the appropriation of revenue for the support of the government.  Appropriations is divided into 12 accounts, with two having the most influence on health care: Labor, Health and Human Service, Education, and Related Agencies (LHHS); and Agriculture, Rural Development, Food and Drug Administration, and Related Agencies (Ag-FDA).  LHHS dictates funding for all major components of HHS except for the Food and Drug Administration (FDA), which is covered under Ag-FDA. 

Recent Activity: The House Appropriation subcommittees have kicked off the process of reviewing and marking up spending bills for Fiscal Year (FY) 2022, whereas the Senate Appropriation subcommittees have not started.  The full House Appropriations is scheduled to vote this week on spending bills for several accounts, which includes LHHS and Ag-FDA..  As government funding runs out in 78 days, lawmakers may have to pass a stopgap measure, known as a Continuing Resolution (CR) to keep the government running if both chambers cannot agree on top line numbers and pass a long-term spending bill for FY 2022. 

Senate and House Budget Committees

These committees focus on the details of the federal budget, drafting of the budget resolution, and compiling and reconciling legislation for all areas including health care. These committees also oversee the Congressional Budget Office (CBO), which “scores” bills according to how much they would cost once enacted.  The Senate Budget Committee specifically reviews the nominee for the Director of the Office of Management and Budget.

Recent Activity: The Senate Budget Committee is working to finalize a budget resolution, which will include reconciliation instructions, to allow Democrats to advance a multitrillion-dollar package later this year.  Meanwhile, both the Senate and House Budget committees have held hearings to review the Administration’s FY 2022 budget request.

House Ways and Means Committee

This committee’s jurisdiction is very similar to that of the Senate Finance Committee in that it also oversees health programs under the Social Security Act, such as Medicare, Social Security, and TANF.  However, the committee does not have jurisdiction over Medicaid.  The committee is considered particularly impactful among congressional members because of its authority on tax issues. 

Recent Activity: The Ways and Means Committee has recently conducted oversight hearings on improving access to housing and expanding access to education.

House Energy and Commerce Committee

In addition to being the oldest standing committee in the House of Representatives, this committee has the broadest jurisdiction of any House committee.  On health care, it oversees a variety of issues, including Medicare (except Medicare Part A), Medicaid, health insurance (except for employer-sponsored plans), biomedical research and development, drug and device safety, and public health issues.  The health-related departments and agencies it oversees are HHS, FDA, the Centers for Disease Control and Prevention, and the National Institutes of Health.

Recent Activity: The House Energy and Commerce Committee has been working on a number of areas within its health care jurisdiction to advance legislation on expanding access to health care coverage, improving maternal health, enhancing behavioral health, addressing social determinants of health, lowering drug costs, and addressing health equity.

House Education and Labor Committee

This committee has jurisdiction over education and labor issues.   This includes all employment-related health and retirement security issues, including employer-sponsored health plans.  The committee is also interested in health care workforce issues. 

Recent Activity: Two subcommittees on the House Education and Labor Committee are set to review issues affecting the direct care workforce in a hearing on July 20.

Will August Recess Be Canceled This Year?

Summer has arrived, and once again, some members of Congress are calling for August recess to be scrapped.  Does this mean lawmakers will be working through the summer on infrastructure and other high-priority legislative items, or are calls to keep members of Congress in Washington throughout August nothing but noise? 

The History of August Recess 

The practice of lawmakers leaving town in August goes back to 1970, when Congress enacted the Legislative Restoration Act.  The law created a mandatory five-week break for lawmakers beginning in the first week of August and concluding after Labor Day, partly in response to the growing length of legislative sessions.  From the late 19th Century to the 1930s, Congress convened only five or six months out of the year.  By the 1950s, however, Senators and Representatives found themselves in Washington most of the year, prompting calls to “modernize Congress” and give lawmakers a break.  At the time the Legislative Restoration Act was passed, Congress had many younger members with children who sought a more predictable legislative schedule with time set aside to spend with family.

August Recess Isn’t Really Recess

Just because Representatives and Senators aren’t in Washington to convene hearings or cast votes doesn’t meaning August is essentially a month-long vacation.  What’s commonly referred to as “recess” is really a “district work period” according to the House and a “state work period” in the Senate.  It should be noted that state and district work periods are not limited to August and occur throughout the year, although in shorter durations and scheduled closer to federal holidays.  While members are Congress do take advantage of August for some R&R, most of their month is spent engaged in the following activities:

  • Meeting with constituents.  Members of Congress consider connecting with voters to be the most important way to spend their time when outside of Washington.  Specific activities include having meetings in in their local offices; visiting schools, hospitals, and businesses; hosting townhalls; and taking interviews with local media.  Representatives and Senators also use work periods to reconnect with state and district staff who facilitate valuable constituent services.
  • CODELs.  Shorthand for “Congressional Delegation,” CODELs are privately funded trips that members take in their official capacities as lawmakers, often overseas. 
  • Campaigning and fundraising.  The month of August is often used by members to connect face-to-face with donors and supporters.  But these activities are conducted on their own time since political activities are not allowed under congressional rules.  

The Push for Canceling the August State/District Work Period in 2021

This year, some Senate Democrats including Sens. Chris Van Hollen (MD), Jeff Merkley (OR), Ed Markey (MA), and Richard Blumenthal (CT) are leading the charge for continuing legislative business through at least part of August.  Their justification for shortening or eliminating this year’s August state/district work period is to provide more time for Democratic lawmakers to advance their legislative goals.  With August less than a month away, congressional Democrats are already behind on several priorities, including passing a bipartisan infrastructure bill, a reconciliation package, police reform, immigration reform, and gun violence legislation.  Regardless, prospects for even cutting back the month-long break from Washington appear dim at this point.  Some members of the Senate Democratic leadership don’t seem keen on the idea, with Majority Whip Dick Durbin (D-IL) publicly throwing cold water on the idea.  However, Durbin did acknowledge that Senate Democrats have a lot of unfinished legislative business to attend to.   

Pros and Cons

Canceling or at least reducing recess has some legislative benefits for Democrats, as it would give members more time to work on bills, offer amendments, and debate.  Outside of legislative goals, working through August in Washington would provide Senate Democrats more time to confirm the Biden Administration’s executive and judicial nominees.  But there are plenty of reasons to keep the month-long state and district work period in 2021, too. 

As discussed, this period provides valuable opportunities for members to connect in-person with constituents through meetings, town halls, and other events.  This is especially valuable for members who live far away from Washington, DC and are limited in how they can utilize their weekends due to travel times.  And given that midterm elections tend to be unfavorable to the party that won the White House two years prior, Democrats would be wise to use August 2021 to connect with voters.

August Recess Has Been Canceled Before…

If Senate Democratic leadership opt to cancel August’s state work period this year, it wouldn’t be the first time Congress eschewed its month-long summer break from Washington. 

…But It’s Still Rare for Recess to Be Canceled

However, instances of lawmakers actually canceling or drawing back on August state/district work periods appear to be the exception, not the rule.  Nearly every year, at least one lawmaker appears to make the case for Representatives and/or Senators to continue working through the eighth month of the year in Washington.

When Congress does cut short its month-long summer break, it’s generally to deal with a major crisis, such as a global pandemic or a natural disaster.  In most cases, calls to waive August recess are mostly forgotten, mainly because a one-month stretch to connect with voters is simply too valuable for Representatives and Senators to forgo.  While Senate Democrats might find themselves under pressure to make progress on various legislative goals this summer, they’re most likely to find themselves outside of Washington come next month.

What You Need to Know about Medicare Insolvency

Medicare is in trouble.  The Hospital Insurance (HI) trust fund, which finances Medicare Part A, already spends more than it brings in, and without help from Congress, the trust fund is projected to become insolvent in just a few years.  Unfortunately, the HI trust fund has been down this road before, requiring Congress to take action to stave off insolvency and extend the lifespan of the trust fund at several points in the past.  What exactly does insolvency mean for Medicare, and how can lawmakers put the program on solid financial footing?

The State of the Trust Fund

Concerns over Medicare insolvency aren’t exactly new.  Since the program’s creation in 1965, Medicare has faced insolvency on a fairly regular basis.  Even before the start of the COVID-19 pandemic, the HI Trust Fund was projected to hit insolvency by 2030.  However, the pandemic has exacerbated the trust fund’s financial outlook considerably.  Since payroll taxes are the chief source of revenue for the trust fund, job losses from COVID-19 have resulted in less incoming revenue for Part A.  Another factor which hastened the fund’s depletion is the fact that $60 billion of funding provided to the Provider Relief Fund under the CARES Act came from the HI trust fund.

What Does Insolvency Actually Mean?

Contrary to what many believe, insolvency wouldn’t mean the HI trust fund had completely run out of money or would be unable to pay out claims.  Rather, it would mean the trust fund would no longer have any assets.  Once the trust fund depletes, the Congressional Budget Office (CBO) projects annual program revenues from payroll taxes will only cover about 92% of annual program outlays.  Absent any congressional action, insolvency would mean Medicare payments to providers would be reduced to levels that could only be covered by incoming tax revenues.  This could affect providers through one of two scenarios.  In the first scenario, the Centers for Medicare and Medicaid Services (CMS) would reimburse claims as revenue comes into the trust fund, but as tax revenues come in at a slower rate than provider claims, the amount of time between the filling of claims and reimbursement would grow, resulting in delayed payments for providers.  Under the second scenario, CMS would pay a decreased rate for all Part A care.  According to a CBO report from September 2020, Part A would only have enough tax revenue to pay 83 cents for each dollar billed upon the trust fund reaching insolvency.  This means that for every $100 owed to providers for Part A-covered services, CMS would only be able to reimburse $83. 

It should also be noted that the HI trust fund’s exact date of insolvency is unknown.  In September 2020, CBO initially projected the trust fund would become insolvent by 2024.  However, improved estimates for job growth and the employment rate in a February 2021 report from CBO prompted many analysts to push the anticipated date on insolvency back two years.  

Déjà Vu All Over Again

Lawmakers have come to Medicare’s rescue in the past when the program faced similar financial problems, only to take back or delay some of the financial pain the laws inflicted on providers.  When Medicare approached insolvency in the 1990s, Congress ushered in major changes to the program via the Balanced Budget Act (BBA) of 1997, which increased cost sharing for beneficiaries, reduced the growth of payments to providers, and expanded prospective payments to post-acute care facilities.  In 2002, Congress began a 13-year run of delaying the resulting cuts to physicians and other Part B providers through legislative efforts commonly known as the “doc fix.”  Congress once again took action in 2009 to shore up the trust fund via the Affordable Care Act (ACA). Under the landmark health law, a growth in payroll taxes for high-income Americans and a Medicare net investment income tax increased the program’s solvency to a total of 19 years.  However, Congress ended up repealing many of the ACA’s revenue-generating policies like the “Cadillac Tax” and medical device tax, as well as the hugely unpopular Independent Payment Advisory Board, meaning the trust fund was once again facing hard times.  The Budget Control Act of 2011 ushered in an era of automatic Medicare payment cuts, which Congress continues to suspend, doing so through December 31, 2021 in the most recent COVID-19 relief law. 

How to Address Medicare’s Finances

There is no shortage of proposals to delay Part A’s insolvency, most of which revolve around either reducing spending or increasing revenue.  Many of these ideas would require statutory changes.  Below are some key proposals summarized.

  • Raise Medicare Taxes.  Congress could consider raising payroll taxes by 0.38% each on employees and employers to stave off insolvency.  However, such a move would be politically unpopular and inopportune as the economy continues to recover from the pandemic.  As an alternative, Congress could consider using the proceeds of the net investment income tax to finance the HI Trust Fund.  Under the Affordable Care Act (ACA), high-income Americans have a 3.8% net investment income tax, and bumping this up to 4% would provide the trust fund $490 billion in additional revenue over 10 years.
  • Build an Integrated Benefit and Trust Fund Structure.  Instead of having two separate insurance plans for Medicare – one for inpatient services (Part A) and one for ambulatory care (Part B) – Congress could integrate benefits covering inpatient and outpatient care with a simplified cost-sharing structure for patients.  Revenue sources would remain the same, although general fund payments to cover Medicare’s costs would be indexed in future years to a measure of economic growth or another measure not tied to Medicare’s costs.
  • Turn Medicare into a Premium Support Program. Beneficiaries would choose a plan each year, with the federal contribution determined by the second-lowest bid for all plans.  Instead of defining benchmarks by spending growth in the fee-for-service program, benchmarks would be defined by the second-lowest bid.  Competition among plans to be the second-lowest bidder would incentivize plans to keep premiums low.
  • Advance Health Equity.  Health inequities cost the US $83 billion each year and contribute to poor health outcomes for Medicare beneficiaries, subsequently driving greater spending.  Medicare could utilize telehealth, implicit bias training, regular screening for social and nonmedical needs, and enhanced data on beneficiaries to reduce chronic conditions and improve beneficiaries’ health.
  • Expand Promising Alternative Payment Models.  Alternative payment models create incentives for providers to collaborate to provide high-value care.  Since most alternative payment models have failed to produce noticeable savings, CMS could double down on the most promising models and encourage long-term investment in them. 

Medicare is very popular among beneficiaries, and lawmakers have repeatedly vowed to ensure the program has a future.  With potentially only a few years until the program faces a financial reckoning, Congress may yet take up the mantle to make changes to Medicare to ensure its long-term sustainability.  What those changes may be – and whether Congress can stick to its plan – are far from certain.

Should Hill Staffers Be Paid More?

On June 29, House appropriators signed off on a report to look into whether Members of Congress deserve a pay raise.   Does that mean their staff should get a pay raise, too? 

In Washington, DC, the median rent for a one-bedroom apartment is $1,630.  That’s a tough pill to swallow if you’re a young congressional staffer barely making over $30,000 a year.  The cost of living in the Washington, DC metropolitan area has soared in recent years while salaries for Hill staffers have barely budged, contributing to what some have observed as high turnover and low diversity among congressional staff. 

How Staff Are Paid

Each Member of the House of Representatives receives a Members’ Representational Allowance (MRA), which supports Representatives in their official duties.  The MRA is funded through the House “Salaries and Expenses” account in the annual Legislative Branch appropriations bill.  It is calculated into three components: personnel, official office expenses, and official (franked) mail.  Each component is combined into a single MRA reauthorization that can be used to pay for any type of expense, such as staff or travel.  While the personnel amount is the same for each member, official office and franked mail expenses vary depending on the distance between the Representative’s district and Washington, DC.  Each Representative may use the MRA to employ no more than 18 permanent employees, an amount that been unchanged since 1975.   Members are permitted to distribute staff salaries as they see fit and usually  interns and entry-level staff receive the lowest compensation, while senior staff receive higher salaries.  For many House staffers, maximum salaries have been unchanged since 2009.

Similar to their counterparts in the House, Members of the Senate receive a Senators’ Official Personnel and Office Expense Account (SOPOEA) to assist in official duties that is funded through the “Contingent Expenses of the Senate” account in the annual Legislative Branch appropriations bill.  The SOPOEA also consists of three categories (administrative and clerical assistance, legislative assistance, and official office expense) that are combined and may be used for any official expense, including staff salaries.  Typically, salaries for Senate staffers are higher than those for House staffers.  The SOPOEA saw a decrease in funding from FY 2010 to FY 2014 and remained the same from FY 2014 to FY 2017 before seeing a small increase in FY 2018.

Below is a chart listing average salaries for key House and Senate staff positions.

PositionHouseSenate
Chief of Staff$153,302$170,278
Press Secretary$62,515$75,842
Scheduler$56,270$78,420
Legislative Director$89,589$141,886
Legislative Counsel$70,871$95,611
Legislative Assistant$56,741$80,594
Legislative Correspondent$45,457$49,221
Staff Assistant$41,961$42,814

Again, these figures are averages, and actual salaries can vary widely between congressional offices.  In the House, for example, staff assistants surveyed made between $29,000 and $67,333 per year as of 2019.  Additionally, not all House and Senate staffers receive their salaries from MRAs and SOPOEAs respectively, as the Legislative Branch appropriations bill provides separate funding accounts for both leadership and committee staff.  In the House and Senate, leadership offices are funded as individual line items, such as the Office of the Speaker and the Offices of the [Senate] Majority and Minority Leaders.  Additionally, House committees are funded under a “Committee Employees” account, while the Senate has separate accounts for the Appropriations Committee, Conference Committees, and Policy Committees. 

The Impact on Staffers

While salaries for congressional staff have barely changed over the past decade, financial pressures on Hill staffers have grown considerably.  In addition to the National Capital Region’s skyrocketing housing costs, many staffers are seeing more and more of their hard-earned dollars go towards paying off student loan debt to cover rising college tuition.  High childcare costs in the Washington, DC area are an additional financial burden on staffers who are parents of young children.

All these pressures have implications for the congressional workforce, including:

  • High turnover.  Many staffers find salaries on Capitol Hill to be unsustainably low, leaving them to seek out better paying positions in the private sector, especially with lobbying firms, law firms, consulting firms, and trade associations.  Many staffers also seek higher paying positions in the executive branch.  High turnover also limits the ability of congressional offices to retain institutional knowledge, as staffers who gain expertise in a particular policy take what they’ve learned off the Hill.
  • Lack of diversity.  Staffers from more affluent backgrounds are better able to afford the Washington, DC area’s high cost of living, while staffers from lower-income backgrounds may eschew continued service on Capitol Hill out of economic necessity.   

Despite salary concerns, staff may find that there are certain benefits to working on the Hill. For instance, staff may have access to a student loan repayment program that provides up to $10,000 in assistance per year, similar to a program for executive branch employees.  The loan repayment program comes with a number of caveats, however,  only federal student loans are applicable, and staffers participating in the program must stay in their offices for at least a year.  Additionally, individual offices may have their own policies on loan repayment, like giving all staff members a set amount of money or using a sliding scale based on tenure or income.  Furthermore, the more staff an office has, the fewer dollars it is able individually offer for loan repayment.

Staff also have access to childcare centers affiliated with the House, Senate, Library of Congress, and Government Accountability Office.  However, these childcare centers have very long waitlists.

It should be noted that people do not pursue jobs on Capitol Hill only because of the pay.  Being a congressional staffer is highly desirable due to the unique experience the position offers, and it’s not uncommon for vacancies for entry- and junior-level positions in the House or Senate to attract dozens or hundreds of qualified applicants.  Working on the Hill can be seen as a steppingstone to a more lucrative positions in the private sector or the Executive Branch.  Despite the strong desirability of congressional jobs, low salaries are still likely to contribute to high turnover, as the average tenure for a Capitol Hill staffer is just over three years.

What’s Being Done?

Fortunately, concerns over staff salaries have yielded some changes.  By 2019, paid internships once again became a reality for many House and Senate offices after cuts to MRAs and SOPOEAs in 2011 forced offices to make many internships unpaid  as a cost-cutting measure.  Thanks to the  FY 2019 Legislative Branch appropriations bill, each individual House office has a pool of $20,000 it can spend on intern compensation annually, while the amount offered to Senate offices depends on state size.  The reintroduction of paid internships to Capitol Hill was part of a multi-year effort to allow individuals from a more diverse range of socioeconomic backgrounds to be introduced to a career in public service.   However, workforce diversity issues remain a concern.  According to a report issued in May 2021, most interns on Capitol Hill were white and had attended private universities. 

Some Members have taken it upon themselves to pay staff more.  In 2019, then-freshman Rep. Alexandra Ocasio-Cortez (D-NY) announced that all of her staff would be a paid a minimum of $52,000 to handle high living expenses in the Washington, DC area.  To make this high minimum salary possible, Ocasio-Cortez capped salaries for senior positions in her office at $80,000.  Other House offices have yet to adopt Ocasio-Cortez’s compensation model, possibly out of concern that lower salaries for senior positions could make it more challenging to attract top talent.  However, the New York Congresswoman may be in a better position to attract high-quality senior staff due to her status has a high-profile Representative.

Recently, House Democratic leaders have been making a more substantive push to boost staff salaries.  In April 2021, House Majority Leader Steny Hoyer (D-MD) and House Democratic Caucus Chair Hakeem Jeffries (D-NY) sent a letter to top Democrats on the House Appropriations Committee requesting a 20% increase in the MRA.  In their letter, Hoyer and Jeffries say higher salaries would allow House offices to compete with better-paying private sector employers for top talent and allow current staff a better shot at achieving economic security in the Washington, DC metropolitan area. 

Additionally, in May 2021, Hoyer and Jeffries teamed up with House Administration Committee Chair Zoe Lofgren (D-CA) to study whether expanded benefits should be included in the FY 2022 Legislative Branch appropriations bill to further boost staff recruitment and retention efforts. Some of the benefits under consideration include reimbursement for adoption or fertility treatment, first-time homebuyer assistance, and a 529 college savings plan.

What Will Happen Next?

It seems that calls to increase staffer pay are finally being heard, at least in the House.  On June 29, the House Appropriations Legislative Branch Subcommittee favorably report its  FY 2022 appropriations bill, which contains a 21% increase to the MRA, as well as a boost to the paid internship program.  This might prove to be the first step in ushering in higher pay for Hill staffers.  On the Senate side, there doesn’t appear to be much momentum to increase staff salaries, which are still somewhat higher than they are in the House.  Some members may be concerned about the optics of raising the MRA, as it could lead to criticism that congressional staffers are getting a pay boost at the expense of taxpayers.  Still, if a desire to address the high cost-of-living in the DC area and increase diversity was enough to provide funding for interns, it might be enough to provide a much-needed pay raise for Hill staffers.

Can Democrats Scrap the Filibuster?

The filibuster is a time-honored tradition in the Senate that allows any Senator to prolong debate and delay or prevent a vote on a bill.  Currently, 60 votes are needed in the Senate to end debate and pass most pieces of legislation, a threshold that requires Democrats to have the support of at least 10 Republicans to advance bills through the 50-50 Senate.  It has been difficult thus far for Senate Democrats to win over enough Republicans which is severely limiting what Democrats can accomplish legislatively.  This begs the question: why don’t Democrats simply scrap the filibuster?

Changing the Rules

Rules are made to broken, right?  Well, it’s not that simple.

There are 2 options to end the filibuster rule.  One option is to move forward to change Senate Rule 22, the rule that requires 60 votes to end debate.  BUT, Senate Democrats need a super-majority – 67 votes – to change the rule.  The other option is to create a new precedent in the Senate.  Changing the precedent, also known as the “nuclear option,” would require only a simple majority.

Not Enough Democratic Support

While Senate Democrats only need 50 votes to create a new precedent on the filibuster, the biggest hurdle is that not all 50 Senate Democrats are on board.  The most vocal supporters of the filibuster are Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), who have repeatedly voiced their opposition to removing the filibuster since Democrats narrowly regained control of the Senate in January 2021. 

Manchin most recently affirmed his filibuster support on June 6 when he wrote, “I will not vote to weaken or eliminate the filibuster” in an op-ed in the Charleston Gazette-Mail.  In his op-ed, Manchin pointed out that Senate Democrats were quick to defend the filibuster when then-President Donald Trump called for the tactic to be thrown out in 2017 when the GOP controlled both chambers of Congress and the White House.  Similarly, Sinema declared on June 2 that the filibuster “protects the democracy of our nation rather than allowing our country to ricochet wildly every two to four years.”  More so, Sinema has expressed support for restoring the 60-vote threshold to advance nominations. 

Other Senate Democrats have conveyed some hesitancy to remove the filibuster.  When asked in January 2021 if he supported keeping the filibuster, Sen. Mark Kelly (D-AZ) declined to answer specifically and instead stated that he supports bipartisanship.  Additionally, Sen. Mark Warner (D-VA) also said in January that “it would take an awful, awful lot for me to end the filibuster.”

What About Reforming the Filibuster?

Between keeping or throwing away the filibuster, reforming the filibuster as we know it could be a third option and a compromise for Manchin and Sinema to consider.  On March 7, Manchin did state that he supports making the filibuster more “painful” if senators want to use it.  The scenario Manchin referred to is the “talking filibuster,” whereby members of the minority party can filibuster only as long as they are on the floor.  Once a senator relents, there would be a simple majority threshold.  The talking filibuster used to be the norm in the Senate until it was scrapped in 1975 because senators thought it was too time-consuming.

There is more recent precedent for reforming the filibuster.  In 2013, then-Majority Leader Harry Reid (D-NV) led the way to allow all nominees except for Supreme Court justices to advance in the Senate with a simple majority.  It should be noted that Reid accomplished this following a strong 2012 midterm election that saw the number of Democratic Senators grow from 53 to 55, while then-President Barack Obama publicly admonished Senate Republicans for consistently blocking his agenda.  In 2017, Republicans expanded on this when then-Majority Leader Mitch McConnell (R-KY) permitted Supreme Court nominees to also be approved with a simple majority.  McConnell proceeded to strike the filibuster in this scenario after Senate Democrats blocked the confirmation of Supreme Court nominee Judge Neil Gorsuch.

However, it’s unclear to what extent Manchin and Sinema would be open to even reforming the filibuster.  Manchin’s June 6 op-ed clearly states an opposition to “weakening” the filibuster, while Sinema’s comments on restoring the 60-vote requirement to advance all nominees suggests an unwillingness to change.

What Does Biden Say?

Over the course of his long career in Washington, President Joe Biden has evolved from being a staunch supporter of the filibuster to embracing calls for reform.  In the wake of the Sandy Hook mass shooting, then-Vice President Biden referred to the filibuster as a “perverted” rule after the Senate failed to advance gun violence legislation in 2013.  More recently, Biden expressed support for restoring the talking filibuster in an April 2021 interview.    

On June 2, Biden took a rare move to say “two members of the Senate who voted more with my Republican friends” when asked why progress on a voting rights bill has stalled.  Biden was of course referring to Manchin and Sinema, who still technically vote with Democrats more often than not.  Biden’s move to publicly call out the two suggests a willingness to use the power of the bully pulpit to condemn Democrats opposed to changing the filibuster, especially if his agenda continues to face staunch GOP opposition.

What Happens Next?

So far, the filibuster hasn’t totally derailed the Biden Administration’s agenda.  The Administration and congressional Democrats have already scored a policy victory by advancing the American Rescue Plan Act, and most of the Senate’s business has focused on nominations.  However, if Senate Republicans continue to oppose key Democratic proposals on voting rights, infrastructure, and other issues, Biden and other top Democrats could turn up the pressure on Manchin, Sinema, and other Senate Democrats to support changes to the filibuster.  Whether the President or Senate Majority Leader Chuck Schumer (D-NY) are willing to do that remains to be seen.

The Week in Review: May 24-28

Moderna Says Its COVID-19 Vaccine Is 100% Effective in Teens

On May 25, Moderna announced that its COVID-19 vaccine is 93% effective in children aged 12-17 after the first dose and 100% effective after the second.  Additionally, data from the company’s phase 2/3 clinical trial consisting of 3,700 adolescents identified no serious side effects.  Moderna plans to ask the Food and Drug Administration “in early June” to amend its emergency use authorization to allow individual as young as 12 to receive the vaccine.  Currently, only Pfizer’s COVID-19 vaccine is authorized for use in teens.  If approved, Moderna’s COVID-19 vaccine would greatly increase the supply of shots available to middle and high school students ahead of the next school year. 

“Lab Leak” Theory on Virus’s Origin Gains Steam

Following growing concerns that COVID-19 may have originally escaped from a laboratory, President Biden directed the intelligence community to “redouble” its efforts to investigate the origins of the COVID-19 pandemic.  These concerns are fueled by reports that three employees at China’s Wuhan Institute of Virology were hospitalized with symptoms consistent with COVID-19 and “common seasonal illness” in November 2019.  However, hard evidence that COVID-19 originated in a lab has yet to be found, and NIAID Director Anthony Fauci told a Senate committee on May 26 that he still believes the “most likely scenario is that [COVID-19] was a natural occurrence.”  The intelligence community is expected to report its findings to the President in 90 days.

Senators Take Action on Public Option, Rural Health Care Workforce

On May 25, top Democrats on bicameral health committees issued a request for information (RFI) to gather feedback on a proposal to create a government-run public health insurance option.  Among the issues the RFI seeks feedback on are the criteria used for determining prices, the role of states, and how a public option would interact with Medicare and Medicaid.  While President Biden campaigned on creating a public option, the proposal faces an uphill battle from Republicans and health care stakeholders who are strongly opposed.   In other congressional news, four bipartisan senators reintroduced legislation on May 27 to extend a program that allows international doctors to remain in the US upon completing their residency, so as long as they practice in rural areas that are suffering from physician shortages.  Notably, the bill would expand the number of physicians who can participate in the program and would open participation to physicians’ spouses.

Former Virginia Sen. John Warner Dies at Age 94

On May 25, former Virginia Senator John Warner died of heart failure in his Alexandria home at 94 years old.  Warner, who represented Virginia in the Senate from 1979 to 2009, was a moderate Republican who occasionally broke ranks with his party on high-profile issues.  For instance, Warner opposed Robert Bork’s nomination to the Supreme Court and supported several gun control bills.  Warner, a veteran of both World War II and the Korean War, chaired the Rules and Armed Services committees for several years each in the Senate.  In his post-Senate career, Warner worked as a Senior Advisor for the Washington, DC law firm Hogan Lovells.

CMS Delays Medicaid “Best Price” Policy for 6 Months

On May 26, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to delay the effective date of a rule requiring drug manufacturers to include discounts they offer to patients when calculating the “best price” for drugs under Medicaid’s drug rebate program.  According to CMS, the delay is intended to provide the agency, states, and drug makers time to address concerns over patient access and make changes necessary to implement the new requirements.  The rule, which was initially set to go into effect on January 1, 2022, received mixed feedback from stakeholders.

ICMYI: Congress Set to Review Intelligence Report on UFOs

US intelligence agencies are expected to deliver a report to Congress next month on UFOs, or “unidentified ariel phenomena” (UAPs) in the military’s parlance.  The report is a result of the FY 2021 omnibus appropriations bill that was signed into law in December 2021. Interest in UFOs has grown among both the general public and lawmakers after the Department of Defense declassified videos taken by the US Navy of strange objects flying near warships and aircraft.  Pentagon officials say they’re studying UAPs to determine whether the objects represent a threat to national security.  It remains to be seen to what extent the report will contain newly declassified information.

The PHE Was Just Extended. What Does That Mean?

So, what exactly happens to those regulatory flexibilities and emergency measures when the pandemic ends?  On April 15, the Department of Health and Human Services (HHS) extended the PHE for a 90-day period beginning on April 21 and ending on July 19.  HHS won’t keep doing this forever – so what happens when the PHE is no longer renewed? 

The PHE So Far

HHS first declared the COVID-19 PHE on January 27, 2020, and HHS has since renewed the PHE four times, each for 90 days.  When Acting Health and Human Services Secretary Norris Cochran  sent a letter to state governors on January 21, 2021 estimating  the PHE will likely remain in place for the entirety of 2021,” many thought the current extension would run through the calendar year, but Secretary Xavier Becerra extended the PHE through July 19, following the pattern of 90-day renewals as stipulated by the Public Health Service Act.  The January 2021 letter indicated that when HHS decides to terminate the declaration and/or let the PHE expire, the Department will provide states with 60 days’ notice. 

When Will the PHE End?

Do you remember when President George W. Bush relayed the message that the war in Iraq was over during his famed aircraft carrier speech on May 1, 2003, and then the war continued for many years?  Is that what will happen with the PHE?

As it goes, there isn’t a requirement that  HHS outline any specific criteria to be met for the PHE to end.  The Health and Human Services Secretary has the option of declaring the PHE over, or he may simply not extend the current emergency.  For their part,  the American Health Care Association offered one suggestion – that the  PHE be lifted if roughly 70% of the population has been vaccinated, or less than 500 COVID-19 deaths have occurred for 14 consecutive days . 

Key Measures Linked to the PHE

Both Congress and the Administration have advanced key COVID-19 relief measures whose expiration dates are linked to the termination of the PHE.  Below is a list of pivotal relief measures and their central provisions.

  • Certain measures included in COVID-19 relief legislation.  Many policies tied to the PHE are included in the Families First Coronavirus Response Act, enacted March 18, 2020, the CARES Act, enacted March 27, 2020, and the American Rescue Plan Act, enacted March 11, 2021.  Some of these measures expire at the conclusion of the PHE, while others have a specific end date beyond the PHE, such as the one year or one calendar quarter after the termination of the PHE.  Key provisions include:
    • Enhanced coverage and no cost-sharing for COVID-19 testing and vaccines under Medicare, Medicare Advantage, Medicaid, CHIP, and TRICARE.
    • Waived or modified Medicare requirements for telehealth, such as the restriction on use of a telephone and the requirement for face-to-face visits between home dialysis patients and physicians.
    • Increased Medicaid federal match rate to 6.2%.
    • Waived site-neutral payment rate provisions for long-term care hospitals.
    • Continued payments to providers via the Medicare Hospital Accelerated Payment Program.
    • Recalculated Medicaid disproportionate share hospital allotment.
  • Temporary regulatory flexibilities under CMS.  In interim final rules published on March 31, May 8, September 2, and November 2, 2020, the Centers for Medicare and Medicaid Services (CMS) has relaxed numerous Medicare and Medicaid rules for the duration of the PHE.  Examples include testing and reporting requirements for long-term care facilities, enhanced Medicare reimbursement for certain COVID-19 treatments, and price transparency requirements for COVID-19 tests.  The interim final rules also include a number of telehealth provisions, with notable examples including:
    • Waived requirements on the types of practitioners that can furnish Medicare telehealth services to include all practitioners eligible for Medicare reimbursement, including physical therapists, occupational therapists, and speech language pathologists.   
    • Modified reporting requirements for remote physiological monitoring services.
    • Payment parity for audio-only telephone services.
    • Allowing hospitals to bill for services provided remotely by hospital-based practitioners to Medicare beneficiaries registered as outpatients.
    • Allowing teaching physicians to review services provided by resident physicians remotely via audio-visual communications technology.
  • Section 1135 Waivers.  Since the start of the pandemic, CMS has invoked Section 1135 waiver authority to issue a blanket waiver and a series of state-specific waivers that expand telehealth coverage, allow clinicians to practice across state lines, and suspend some reporting requirements.  All of these waivers are set to expire at the conclusion of the PHE.
  • HIPAA Enforcement.  The HHS Office of Civil Rights has relaxed certain HIPAA privacy rules for the duration of the PHE that apply to telehealth technologies, testing sites, and web-based scheduling platforms for COVID-19 vaccination appointments.  
  • Stark and Anti-Kickback Statute.  The HHS Office of the Inspector General has issued guidance discouraging enforcement of pandemic response activities until the end of the PHE that could be viewed as problematic under the anti-kickback statute and the Stark Laws. 
  • Controlled Substances. Both the Substance Abuse and Mental Health Services Administration and the Drug Enforcement Administration have issued guidance allowing more flexibility for providers and opioid treatment programs to prescribe controlled substances during the PHE.

Previewing a Post-PHE World

As vaccinations increase and jurisdictions gradually reopen, the fate of temporary policies that expire at the end of the PHE remains unclear.  Fortunately, recent actions by federal officials offer clues as to how some of temporary policies may be retained, particularly those relating to telehealth.  As expressed by then-CMS Administrator Seema Verma in December 2020, congressional action will be essential to ensuring expanded telehealth coverage and other flexibilities can be made permanent.  Since then, policymakers have been providing suggestions to lawmakers on what to do with telehealth after the PHE ends.  In its March 15, 2021 report to Congress, for example, the Medicare Payment Advisory Commission recommended continuing some telehealth flexibilities one to two years following the end of the PHE to evaluate whether the temporary policies should be adopted permanently.  The report also provided the following recommendations to Congress:

  • Continue Medicare coverage for telehealth services, regardless of a beneficiary’s location.
  • Discontinue allowing providers to reduce or waive cost-sharing for telehealth.
  • Continue coverage of audio-only services if there is a clinical benefit.

Additionally, members of Congress have put forth their own proposals to permanently expand telehealth.  Key legislation introduced so far includes:

  • H.R. 366, the “Protecting Access to Post-COVID–19 Telehealth Act of 2021,” introduced by Rep. Mike Thompson (D-CA), which would eliminate most geographic and originating site restrictions on the use of telehealth in Medicare and authorize CMS to continue reimbursement for telehealth for 90 days beyond the end of the PHE.
  • H.R. 787, the “Expanding Student Access to Mental Health Services Act,” introduced by Rep. Rick Allen (R-GA), which would permanently expand telehealth services for students.
  • H.R. 937, the “Tech to Save Moms Act,” introduced by Rep. Eddie Bernie Johnson (D-TX), which would integrate telehealth models into maternity care services.

While the federal government may not yet have a specific plan on how it intends to handle temporary regulatory flexibilities once the pandemic expires, recent action from legislators and policymakers suggest a desire to keep at least some policies around permanently. 

PAYGO Cuts Face Uncertainty in Congress

While members of both parties agree the pending Medicare sequester needs to be extended, Republicans don’t seem favorable to waiving PAYGO budget rules to allow additional cuts to be averted.  The result is continued uncertainty for health care providers and a likely sign of spending fights to come in Congress.

Medicare is currently facing two automatic budget cuts.  Under the first cut, Congress was initially set to reduce 2% of the Medicare budget, or $18 billion, in Fiscal Year 2020 due to a process known as sequestration that provides an automatic spending reduction to enforce certain budgetary goals.  However, Congress opted to delay the 2% cut to April 1, 2021 due to the pandemic’s financial impact on health care providers.  The American Rescue Plan Act of 2021 (H.R. 1318) is scheduled to trigger a second cut to Medicare to the tune of 4%, or $36 billion.  This second cut is a requirement of the Pay-As-You-Go (PAYGO) budget rule, which says legislation that fails to offset spending increases must be offset by cuts to mandatory programs such as Medicare.  Unlike the sequester, PAYGO cuts would not go into effect until the beginning of 2022. 

Health care stakeholders are adamantly opposed to the cuts.  In letters sent to congressional leadership on March 11 and March 17 respectively, the American Hospital Association and American Medical Association (AMA) requested lawmakers find a bipartisan solution to avoid the both the sequester and PAYGO-triggered spending reductions.   In particular, AMA urged Congress to avoid legislation that would again induce PAYGO cuts to avoid creating further uncertainty in the health care system.

The House is set to take up a bill on March 19 that would waive PAYGO for the American Rescue Plan and delay Medicare sequestration through the end of the 2021(H.R. 1868). While both Democrats and Republicans agree the sequester needs to be delayed again, Republicans do not seem favorable to waiving PAYGO.  In a March 16 hearing on H.R. 1868 by the House Rules Committee, Ranking Member Tom Cole (R-OK) implied the American Rescue Plan was too large due to lack of bipartisan cooperation, and that a smaller COVID-19 relief bill could have passed Congress without triggering PAYGO cuts.  Additionally, many Republicans may be unwilling to waive a budgetary rule that was directly triggered by a massive bill that passed without a single GOP vote.

Likewise, it is unclear what the Senate will do with the measure once it is sent over from the House.  Introduced by Jeanne Shaheen (D-NH) and Susan Collins (R-ME), S. 748 would extend the sequester moratorium through the end of the COVID-19 health emergency but did not address the broader PAYGO issue.  The bill pays for the limited extension by extending the time period for sequestration by one year, through Fiscal Year 2031.

Given the political dynamics of the overall PAYGO issue and with Democrats controlling the Senate by just one vote, it is unclear at this time whether the Senate would take up the House measure or the Shaheen/Collins bill.  Adding to the uncertainty is the upcoming congressional recess period where both chambers will be out of session starting March 29 until April 13.  At this point, there hasn’t been any signal yet that the Senate will take action next week to avoid the current March 31 sequestration relief expiration from taking effect.  However, we would anticipate action at some point, even if it would have to be made retroactive, given the overall bipartisanship that remains generally for giving providers relief from the projected cuts.