Xavier Becerra.

Questions for HHS Secretary Nominee Xavier Becerra

By Abe Sutton

With the 2020 election in the rearview mirror, the Senate has turned its attention to vetting President-elect Biden’s cabinet nominees. As Senators on the Finance and HELP committees prepare their questions for California AG Xavier Becerra, the nominee for Health and Human Services (HHS) Secretary, they should consider probing in three areas to understand his health policy priorities.

In this post, I suggest Senators consider asking the nominee about his plans for the future of the Center for Medicare and Medicaid Innovation (CMMI), as well as how he aims to encourage healthcare competition and foster innovation.

His answers may be illuminative about his potential tenure as secretary, and should factor into Senators’ decisions on whether to vote for confirmation amid questions regarding his qualifications. Senators may also wish to weigh the nominee’s moral and human services priorities, topics not discussed in this post.

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Adult and child holding kidney shaped paper on textured blue background.

New Regulation Aims at Accountability for Organ Procurement Organizations

By James W. Lytle and Abe Sutton

Facing a looming deadline for the adoption of pending proposed rules, the Trump Administration finalized a host of healthcare regulations, including highly anticipated regulations addressing drug pricing and Stark Law/anti-kickback rules. Within this flurry of regulatory activity, the Centers for Medicare & Medicaid Services (CMS) also finalized an important, but not as widely discussed, proposal that seeks to hold Organ Procurement Organizations (OPOs) more accountable for their performance.

While some of these last-minute actions by the outgoing administration may ultimately be reversed or revised by the Biden Administration, this rule was associated with a well-regarded Advancing American Kidney Health initiative that has been “widely hailed by health care groups, patient advocacy organizations and Democrats,” making it “the most broadly popular health initiative of Trump’s presidency.” While its fate is not entirely certain, the recently issued final rule may be one of the few last-minute legacies of the Trump Administration likely to be more warmly received by its successor.

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a pill in place of a model globe

Issuing the Most Favored Nation Interim Final Rule Was a Mistake

By Abe Sutton

While the Most Favored Nation (MFN) Interim Final Rule (IFR) advances a well-calibrated policy to standardize pharmaceutical prices across developed nations, procedurally, its issuance was a mistake.

The Trump administration would have been wiser to issue a Notice of Proposed Rulemaking (NPRM) for two reasons: first, an NPRM would have circumvented some of the procedural vulnerabilities of the IFR. And second, had the Trump administration issued an NPRM, President-Elect Biden’s team would have faced significant pressure to finalize the policy.

In this post, I touch on what MFN is, examine why the interim final rule is legally vulnerable, explore why the Biden team likely would have adopted the policy had an NPRM been issued, and explain how industry should think about this situation.

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Close-up Of Stethoscope On Us Currency And American Flag.

Short-Term, Limited-Duration Insurance May Be Here to Stay

By Abe Sutton

Short-term, limited-duration insurance (STLDI) may be here to stay despite legal attacks, poor branding, and a potential Democratic victory in the upcoming Presidential election.

Though the Obama administration curtailed STLDI, it is now likely to endure due to black letter administrative law and changes in circumstance since 2016.

In light of this, a potential Biden administration should package legislation codifying the current regulations with legislation increasing individual market subsidies. A package along these lines could appeal to both sides of the aisle.

In this post, I provide an overview of what STLDI is, explain why administrative law precedents complicate the reversal of current regulations, and propose a path forward for a potential Biden administration. Read More

a stethoscope tied around a dollar bill, with a bottle of pills nearby

Can We Expect Legislation on Surprise Medical Billing? I’d Be Surprised

By Abe Sutton

Surprise medical billing has emerged as a top political priority amid a torrent of complaints about expensive balance billing.

Despite leaders such as President Trump, former Vice President Biden, and members of the 116th Congress pledging to address surprise medical billing, federal legislation is unlikely, due to powerful health associations’ divergent interests. To shake legislation loose, the President would need to publicly take a side and expend political capital on a creative solution.

In this piece, I walk through why federal legislative action has been stymied to date, and what it would take to get surprise medical billing legislation over the line.

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Illustration of a family and large clipboard with items in a list checked off. All are underneath a large blue umbrella

Third Time’s a Charm: Georgia’s 1332 Waiver Application

By Abe Sutton

The Georgia Access Model

Georgia's waiver presents a pathway for other states
Other states can follow Georgia’s lead in pursuing innovative 1332 waivers to encourage choice and competition. “A Pathway to Heaven” by ^riza^ is licensed under CC BY 2.0.

In December 2019, Georgia applied for a state relief and empowerment waiver available under Section 1332 of the Affordable Care Act (ACA).

Section 1332 lets states alter select ACA requirements to find the approach that is right for their state and encourage insurance coverage innovation. Georgia has released two prior versions of this waiver proposal; the state’s most recent revision to its 1332 waiver application offers a new vision for the individual market and a potential roadmap for other states. The innovation, the Georgia Access Model, accompanies the now-traditional reinsurance component included in prior 1332 waivers.

The Georgia Access Model shifts Georgia off of healthcare.gov. It instead opts for a decentralized enrollment system that makes plans available through the commercial market. Georgia argues this will increase individual market enrollment and reduce premiums. In this piece, I address some criticisms of the model and present an argument for approving Georgia’s waiver.

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