Health Law & Policy
| Sep 15 2022

Hill Health Care Agenda Stalls as Midterm Elections Loom

Geoff Manville
Partner, Mercer’s Law & Policy Group

Congress is fully back in action this week and focused on avoiding a government shutdown at the end of the month, but a short-term funding fix set to run to December probably won’t include proposals to extend temporary telehealth flexibilities for employers, improve mental health care and provide more COVID-19 aid. With lawmakers set to leave the capital in October to campaign, action on these issues now isn’t likely until late this year in a crowded lame-duck session, complicating the outlook for final passage.

Telehealth. Lawmakers of both parties have their sights set on extending the availability of telehealth in employer plans. Earlier this year, Congress extended from April through December of this year the 2021 CARES Act provision allowing employers to offer pre-deductible coverage of telehealth and remote care services in high-deductible plans. Bipartisan bills would make this relief permanent (HR 5981) – though lawmakers could opt for a temporary extension – and would extend the temporary Public Health Emergency relief that treats stand-alone telehealth benefits for certain workers like an ERISA-excepted benefit (HR 7353).

The House passed legislation in July (HR 4040) to extend certain Medicare telehealth flexibilities, but Republican efforts to add employer-focused extensions to the measure were voted down amid concerns about raising overall health care spending. In early June, the House Republican Healthy Future Taskforce, charged with crafting a health care agenda should Republicans regain control of the House, unveiled a plan to continue telehealth access beyond the pandemic and to encourage employer-sponsored telehealth coverage through the use of HSAs.

Immediate Senate action on the House-passed bill is unlikely given the few legislative days on the calendar before the midterm elections, but the measure could be a vehicle for extending employer telehealth flexibilities in December.

Mental health. Congress had plans of passing a comprehensive mental health package sometime this year, but the legislative time crunch is making that goal increasingly difficult. Lawmakers had hoped to pass a bill before the July 16 implementation of the three-digit national suicide hotline known as 988, but that effort fell short when the focus turned to enacting a bipartisan gun violence and mental health law.

The House passed a bill (HR 7666) in June to reauthorize a number of expiring federal mental health programs and improve the nation’s mental health and substance abuse care system. While the measure doesn’t directly affect employers’ behavioral health programs, it would require self-funded, non-federal government plans to comply with mental health parity laws. The bill also omits earlier proposal from Democrats to give the Department of Labor (DOL) authority to levy new fines to enforce mental health parity laws.

A separate section of the bill would require pharmacy benefit managers (PBMs) to annually report a broad swath of data to all plan sponsors and the government about their business practices, including how they determine rebates and discounts and what they pay for drugs.  

The Senate, meanwhile, has not taken up the House bill or released a counterpart, though Senate committees continue to work on the issue and may strike a deal with the House on language that could be tucked into an end-of-year package. Employer groups hope to convince Congress to keep the House bill’s PBM reforms and to continue to reject proposals to create new DOL civil monetary penalties for noncompliance with parity laws.

COVID aid funding. The Biden administration is asking Congress to add $22.4 billion to the stopgap government funding bill for continued COVID-19 response efforts, though that appears unlikely with Republicans opposed to another infusion of new money. (The government funding bill will need 60 votes to pass in the 50-50 Senate.) The White House says the funding would allow it to wait longer before turning over much of the cost of COVID-19 testing, vaccines and treatments to the commercial health care market. Office of Management and Budget Director Shalanda Young said in a recent blog post that the new funds are needed to restart a suspended program that provided free at-home COVID testing kits and help prepare for a "potential fall surge" in cases.

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