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The Health 202

A newsletter briefing on the health-care policy debate in Washington.

Medicaid got a lot of attention in the year-end spending bill

The Health 202

A newsletter briefing on the health-care policy debate in Washington.

Happy Tuesday morning, where a classic D.C.-metro area fight held up text of the government funding package for hours last night. Send any nuggets we missed in the 4,155-page bill to

Today’s edition: A major effort is needed to remove illegal vaping products from the market, according to an independent review of the Food and Drug Administration’s tobacco regulators. The chief justice keeps pandemic-era border policies in place for now. But first … 

There are Medicaid changes, pandemic preparedness and more in the big spending bill

The omnibus is (finally) here. 

Both Democrats and Republicans scored major health policy wins in the sweeping package to fund the government through the end of September. Congressional negotiators dropped the bill around 2 a.m. after many on Capitol Hill expressed hope the text was imminent for hours yesterday, and both chambers are rushing to pass the measure before the week’s end.

The quick snapshot: Congress clinched a longer-term deal to avert a lapse in critical Medicaid dollars for the U.S. territories, which The Health 202 first reported. The massive legislation also includes other big-ticket Medicaid items, contains the bulk of a sweeping pandemic preparedness bill, partially staves off cuts for providers and extends pandemic-era telehealth measures.

Here’s what made the cut, according to the bill text and five people familiar with the legislation. 

Medicaid for the territories

Lawmakers brokered a deal to bring more funding certainty to the U.S. territories’ Medicaid programs. 

The safety net program is funded differently in the states than it is in U.S. territories, meaning Congress must periodically re-up certain dollars the federal government provides to their Medicaid programs. Failing to pass a deal this year could lead to severe cash flow problems for the territories' programs, raising the specter of cuts to optional benefits and reduced payments to hospitals.

The details: The agreement continues the 76 percent rate the federal government has been paying to match Puerto Rico’s Medicaid dollars for five years, as well as the higher limit on the money the federal government can put toward the island’s safety net program. For the rest of the territories, it permanently extends the federal match rate at 83 percent. 

To pay for the change, lawmakers got rid of a controversial Biden administration move, according to one congressional aide. The Biden administration last year interpreted language from recent laws to mean the federal government could give at least $2.9 billion per year to Puerto Rico’s fragile safety net program. 

  • The Government Accountability Office has said that interpretation was wrong. Republicans had been pushing to get rid of it, and killing the permanent increase in the funding cap — though still continuing the higher amount of dollars for at least another five years — appears to count as a cost saver. 
More Medicaid policies

It’s the beginning of the end for pandemic-era Medicaid rules, which have prevented states from kicking people off their coverage.

The spending package would allow states to begin reevaluating who is still eligible for the safety net program beginning in April — a key priority for Republicans — with guardrails over how they can do so, such as requiring states to attempt to contact beneficiaries before they disenroll them from the program. The legislation gradually phases out the 6.2 percent funding bump states received for not touching their Medicaid rolls amid the pandemic.  

In exchange, Democrats also won some victories on long-sought priorities. The legislation allows states to permanently extend Medicaid coverage for new moms for 12 months and prohibits children from getting kicked off Medicaid or the Children’s Health Insurance Program for a continuous 12 months, even if their family’s income changes.

Pandemic preparedness

The bulk of a sweeping pandemic preparedness bill also made the cut, though without the creation of an independent task force to probe the pandemic.

Getting the bipartisan pandemic legislation across the finish line was important to its co-authors, Sens. Patty Murray (D-Wash.) and Richard Burr (R-N.C.). 

In January, the pair released the plan to overhaul the country’s pandemic strategy, which included measures aimed at improving disease data collection, bolstering oversight of health agencies and establishing a government panel modeled after the 9/11 Commission to probe the origins of covid-19 and the resulting pandemic response. The bill also includes a measure requiring the Senate to confirm the director of the Centers for Disease Control and Prevention. 

Many measures appear retained in the government funding bill, but there’s at least one notable exclusion. The legislation doesn’t establish an independent task force amid a slew of partisan investigations in both chambers. That will likely anger public health advocates who have long pushed for an independent probe — and had won the support of unlikely allies, such as Sen. Roger Marshall (R-Kan.), who told The Health 202 yesterday that he was “disappointed” about its exclusion. 

Medicare pay cuts

Even before the text was official, the American Medical Association was out with a blistering statement. The major physician’s lobby said it was “extremely disappointed and dismayed” that Congress didn’t fully stop the Medicare cuts to their reimbursement from going into effect. 

Here’s how Congress handled the cuts: The package partly fends off a nearly 4.5 percent cut to doctors’ Medicare reimbursement with the cut growing larger over the next two years. The AMA had lobbied Congress hard to avert the cuts in their entirety.

Additionally, Congress extended the ability to qualify for a bonus payment for providers to participate in new ways of testing how Medicare pays for care for one year. However, lawmakers reduced the amount of the incentive from 5 percent to 3.5 percent. 

Extending telehealth

Emergency powers during the pandemic allowed telehealth to boom. But such policies were slated to go away roughly five months after the public health emergency for the coronavirus ends. Lawmakers are extending those Medicare telehealth flexibilities through 2024.

Here’s the bill text. l Here’s the fact sheet on how much money the health agencies are getting.

Agency alert

Major effort needed to remove illegal vaping products, review finds

An independent review of the Food and Drug Administration’s tobacco regulators found they are overwhelmed, reactive and fatigued by an oppressive workload involving e-cigarettes, which has stymied the agency’s ability to regulate vaping products under its oversight, The Post’s Laurie McGinley reports.

The Reagan-Udall Foundation report faulted the FDA for failing to remove millions of illegal products from the U.S. market, but also acknowledged that certain enforcement powers rest with other agencies, such as the Justice Department. The review group recommended that the Biden administration establish “an interagency task force to make enforcement of the tobacco laws a government-wide priority, particularly to address the marketing of illegal products and the risks of youth use.”  

The panel, headed by Lauren Silvis, chief of staff to former FDA commissioner Scott Gottlieb, also called on the FDA to lay out a road map of its priorities and provide clarity on how it will tackle them, including the standard the agency uses for authorizing e-cigarettes. The group suggested that people with varying views were dissatisfied.

The response: FDA Commissioner Robert Califf, who commissioned the review following criticism of the FDA’s handling of e-cigarette issues, said the agency would review the report and provide an update on future action by early February.

The report won praise from both sides of the vaping battle, but for different reasons. Anti-tobacco groups liked the emphasis on enforcement and compliance, while the pro-vaping groups said the report validated their view that the center was not working effectively, Laurie writes.

American Vapor Manufacturers:

Meanwhile …

Medicare Part B spending on lab tests jumped 17 percent to $9.3 billion last year, driven in part by a rising volume of coronavirus tests, according to a report released yesterday by the Department of Health and Human Services’s Office of Inspector General.

The $1.3 billion increase was the biggest change in spending since the government watchdog started monitoring payments in 2014.

In the courts

Title 42 will remain in place — for now

Supreme Court Chief Justice John G. Roberts Jr. put a temporary hold on the termination of a pandemic-era policy that allows the government to quickly expel migrants from the U.S. border that was set to expire Wednesday, The Post’s Ann E. Marimow and Maria Sacchetti report. 

The administrative stay from Roberts will allow the court to consider an emergency application from Republican officials who want Title 42 to remain in place while litigation continues. 

What we’re watching: Roberts gave the Department of Homeland Security and immigrant advocates until 5 p.m. today to respond to the request from Republican state officials, which was submitted yesterday. The call for responses typically means that the full court will be involved in deciding the matter, our colleagues note. 

Remember when? In April, bipartisan backlash over the Biden administration’s decision to end the controversial policy held up an effort to swiftly pass new coronavirus funding — something that Congress has failed to take action on since. 

Rep. Tony Gonzales (R-Tex.):

In other news from the courts: 

  • The Biden administration missed the 60-day deadline to appeal an October ruling by a Texas judge who found that the federal government erred when it issued guidance earlier this year saying that the Affordable Care Act protects transgender patients’ access to gender-affirming care, the Dallas Morning News reports. 
  • The Massachusetts Supreme Court ruled unanimously that the state’s Constitution doesn’t protect the right to physician-assisted suicide, but the issue instead lies with the legislature, the Boston Globe reports.  


Appeals court blocks Biden’s federal contractor vaccine requirement

A U.S. appeals court ruled yesterday that the White House cannot require federal contractors in three states to vaccinate their entire workforce against the coronavirus to win government contracts, Reuters reports. 

The details: A panel of the U.S. Court of Appeals for the 5th Circuit declined to vacate a lower court’s decision that blocked President Biden’s vaccine mandate for companies that do business with the federal government in Louisiana, Indiana and Mississippi.

The majority opinion found that Biden overstepped his authority when he issued the order in September 2021. The judges wrote that a broad interpretation of the law could give the president “nearly unlimited authority to introduce requirements into federal contracts.”

The Justice Department defended the mandate in a court filing, saying Biden’s order was justified under the Procurement Act.

Another one bites the dust: The decision marks the latest in a string of legal losses hampering the Biden administration’s sweeping effort to boost coronavirus vaccination rates. The federal government in October had directed agencies not to implement or enforce the mandate while litigation against it works its way through the courts. 

Louisiana Attorney General Jeff Landry (R): 

Health reads

‘THE central issue’: How the fall of Roe v. Wade shook the 2022 election (By Elena Schneider and Holly Otterbein | Politico)

A Montana Addiction Clinic Wants to Motivate People With Rewards. Then Came a Medicaid Fraud Probe. (By Katheryn Houghton | Kaiser Health News)

They Created a Drug for Susannah. What About Millions of Other Patients? (By Erika Check Hayden | The New York Times)

Coached until she collapsed, an aspiring bodybuilder is now on life support (By Jenn Abelson)

Sugar rush

Thanks for reading! See y'all tomorrow.