Several committees took steps around enhancing mental and behavioral health services, with the Senate Finance Committee releasing a discussion draft focused on the workforce and the House Ways and Means Committee passing a series of bills around coverage and access. Negotiations continued on the content of a stopgap funding bill, known as a continuing resolution (CR), that Congress needs to approve before the current fiscal year ends on September 30, with a reported deal on including a five-year FDA user fee reauthorization. As discussions continued, the Senate took procedural steps to begin consideration of the CR. The recent statement by President Biden that “the pandemic is over” during a 60 Minutes interview resulted in assurances from his administration that they remain committed to providing 60 days’ notice before ending the public health emergency (PHE).
CR Negotiations Continue with One Week Remaining in the Fiscal Year. Congress now has just one week to avert a government shutdown. Lawmakers continue to seek an agreement on a short-term CR to keep programs funded when the new fiscal year begins on October 1, in the absence of the completion of traditional FY 2023 appropriations bills.
As we reported last week, both parties appear to be in agreement on the duration of the CR through December 16, and this week reports indicate that Republicans and Democrats are making progress on additional funding and policy measures, such as support for the ongoing war in Ukraine and recent national disasters, and short-term extensions of Medicare programs that are set to expire on October 1 without congressional action.
Another sticking point has been related to the reauthorization of the US Food and Drug Administration (FDA) user fee authorization programs (known as the UFAs). It has been reported that the Senate Health, Education, Labor & Pensions Committee, along with the House Energy and Commerce Committee, have reached a tentative deal to include a clean, five-year reauthorization of the UFAs. The committees were engaged in months-long negotiations on the content and length of the UFAs, as well as the inclusion of additional policy riders such as those contained in the Verifying Accurate Leading-edge IVCT Development (VALID) Act, dietary supplements and cosmetic reform. The UFAs reauthorization needs to be passed before September 30, 2022, or the FDA may have issue pink slips to staff. With this agreement in place, this should be included in the CR or passed as a standalone before September 30.
The resolution of one of the CR’s biggest sticking points—the energy permitting reform provision that Senate Majority Leader Schumer (D-NY) promised to Senator Manchin (D-WV) as a condition for his support for the Inflation Reduction Act—remains unclear. On September 21, Senator Manchin unveiled his long-awaited legislative proposal, though it is not yet known if the provision can garner the support more than10 Republicans, which will be necessary given that the CR requires 60 votes for passage and the Senate is divided 50-50 and that Democratic Senator Bernie Sanders has been clear that he will oppose the CR if the energy permitting provision is included.
In addition, President Biden’s recent statement about the end of the COVID-19 pandemic places new challenges on his multibillion-dollar supplemental request for additional COVID-19 funding in the CR.
On September 22, Leader Schumer took procedural steps to tee up the still-unfinished CR for votes early next week. It remains to be seen whether the inclusion of the Manchin bill in the CR will be able to meet the 60-vote threshold, or whether it will need to be stripped from the package—a step that would require additional time in the Senate and would bring Congress dangerously close to the September 30 deadline. The House will still need to act after the Senate does, and House Speaker Pelosi (D-CA) will need to keep most of the progressive wing of her caucus in line in order to advance a Senate-passed CR, before sending the bill to the president’s desk to avert a government shutdown. Congressional leaders have already warned legislators to cancel their plans the weekend of October 1, as weekend votes may be necessary.
House Ways and Means Committee Unveils and Advances Mental Health Bills. On September 20, the House Ways and Means Committee released legislative text for five mental health proposals, along with a bill to reauthorize the Maternal, Infant, and Early Childhood Home Visiting (MIECHV) program, named after Jackie Walorski, the late congresswoman from Indiana who died in a car accident in August.
The bipartisan bills are focused on:
The next day, the committee met to consider the six bills, advancing each of the mental health-focused committee prints by voice vote, and advancing H.R. 8876 by a unanimous recorded vote. The goal of such swift committee consideration is for the bills to be well-positioned for inclusion in a year-end legislative package during the lame-duck session. The committee is open to feedback on these efforts, and additional revisions may be made before further advancement occurs.
Senate Finance Committee Unveils New Mental Health Discussion Draft. On September 22, Senate Finance Committee leaders released the committee’s third discussion draft to address mental health policy challenges.
Earlier this year, Chairman Wyden (D-OR) and Ranking Member Crapo (R-ID) announced five key areas that the committee would be addressing—improving access for children and young people, furthering the use of telehealth, ensuring parity, strengthening the workforce, and increasing integration, coordination and access—and the bipartisan duos of committee members that are leading each initiative. The telehealth discussion draft was released in May and the children/youth discussion draft was released in June.
The latest discussion draft—led by Senators Stabenow (D-MI) and Daines (R-MT)—is focused on strengthening the mental health workforce. Similar to the Ways and Means Committee proposal discussed above, it would provide for coverage of marriage and family therapist services and mental health counselor services under Medicare Part B. To further address mental health workforce shortages, the draft would also support new Medicare-funded residency slots to train psychiatrists, would expand Medicare’s Health Professional Shortage Area Physician Bonus Program, and would allow hospitals and other entities to provide evidenced-based programs for physicians to improve their mental health and reduce burnout. With respect to Medicaid, the draft would increase the capacity and number of mental health care providers under the Medicaid program and would require the Department of Health and Human Services (HHS) to issue strategic guidance to increase mental health and substance use provider education, recruitment and retention, and improve workforce capacity in rural and underserved areas. A full summary of the discussion draft’s provisions can be found here.
The final two discussion drafts, focused on ensuring parity and increasing integration, could be released in the coming weeks, and further action on a comprehensive Finance Committee mental health package—along with the related efforts of other key congressional committees—appears increasingly likely during the lame duck session.
President’s Pandemic Statement Raises Questions on Continuation of PHE. During his recent 60 Minutes interview, President Biden’s off-the-cuff comment that “the pandemic is over” had instant ramifications in Washington, DC.
Key administration officials sought to walk back the president’s definitive words, stressing that he also stated during his interview that “we still have a problem with COVID; we’re still doing a lot of work on it.” In addition, HHS, in a tweet, reaffirmed the administration’s commitment to providing at least 60 days’ notice before ending the PHE.
The most recent PHE extension runs through mid-October and, given that we are well within that 60-day window, another extension is expected. The next presumed three-month extension would run through mid-January 2023, but November 15 is the deadline for the 60-days’ notice commitment with regard to whether it will extend beyond mid-January.
Given the number of flexibilities that are currently tied to the COVID-19 PHE and the implications of changes in such policies on healthcare stakeholders, we continue to follow this issue closely and will provide additional updates in the coming weeks and months.
The clock ticks down on the end of FY 2022, and Congress works to finalize a CR before the new fiscal year begins on October 1. Weekend votes are possible.
For more information, contact Debra Curtis, Kristen O’Brien or Erica Stocker.
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