How sausage shapes strategy
Early Feb. 9, Congress approved and the President signed into law the 652-page Bipartisan Budget Act of 2018 keeping Uncle Sam open until March 23 and setting the broad outlines of a two-year federal budget. By weight alone (377 pages) it amounts to one of the more consequential health care laws since the Affordable Care Act of 2010.
A closer look provides industry stakeholders four strategic lessons for developing and enacting future policy change.
The bill’s provisions fall into five rough categories:
· Continued amendments to the Affordable Care Act that have some bipartisan support. For example, Sec. 52001 repeals the unloved Independent Payment Advisory Board (IPAB). Separate legislation repealing IPAB had passed the Republican-majority House on numerous occasions, most recently last November. As a stand-alone measure it had 270 House cosponsors (225 R, 45 D) and 37 Senate cosponsors (all Republican).
· Straight or modified extensions of expired or expiring health policy. Straight extensions included a two-year extension of the Medicare hospital work GPCI floor (Sec. 50201). A significant modification is the bill’s therapy caps provision (Sec. 50202). Annual modifications to the Medicare therapy cap had been adopted for years. Following multiple cycles of legislative negotiations, a bipartisan agreement among legislators and advocates inked in October 2017 drew the support of physical therapists and occupational therapists.
· Policy that had moved as stand-alone legislation. Several health care provisions had previously cleared key House or Senate committees, or the House floor, separately on other occasions. For example, three provisions expanding payment eligibility for telehealth services, a home dialysis therapy authorization, and promoting care coordination in accountable care organizations (ACOs) had all drawn support as separate bills moved through the House Energy and Commerce Committee.
· New policy that had not previously moved in Congress. One section titled Closing the Donut Hole for Seniors (Sec. 53116) amends a provision of the Affordable Care Act and was added in the Senate at the very end of the legislative process. Early accounts vary on the level of industry dismay over the provision.
· Technical corrections. Implementation of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) has been rocky, drawing heavy criticism from the government’s independent Medicare advisory. The bill includes an extensive MACRA technical correction, lengthening implementation deadlines, delaying imposition of “professional improvement activities” measures affecting Medicare payment, and making other important changes (Sec. 51003, Amendments to Public Law 114-10).
These findings deliver four lessons for organizations seriously pursuing a policy agenda in Washington:
1. Health care policy in modern times rarely moves as modest, stand-alone legislation. If it is a federal legislative issue – distinct from a federal regulatory matter or a state issue – be aware that even popular small bills are not easy to move. They are legislative vehicles for amendment more likely than not to fail for too much attention from others and their aspirations. Increasingly, even modest bills move as part of must-pass legislation such as budget or spending packages. Several are products of years of work. In this case, the elements of this major health legislation were assembled behind closed doors into a must-pass package that came together in less than a week. Set your expectations and make your plans accordingly.
2. Each provision had a champion either in congressional leadership or on a major health care committee. Many if not all had bipartisan support. Issues cleared by one party only (see the Affordable Care Act, notwithstanding any merits) come under the gun when the other party wins at the polls. As a rule, even decent ideas whose primary sponsors were neither leadership nor health committee members did not get enough support to be included in this package to be made law. Why should a legislator carry your water? What does it do for the legislator’s constituents?
3. Most provisions lacked a visible, energized opponent. For many health policy interests, the chief foe is simple inertia or scarcity. Advocates for interests having a more energetic opponent should expect to be asked to work out differences in advance or expect the provision to remain an idea and not become a law. What coalition supports your provision? Who opposes it? What are you willing to do about it – or not?
4. Enacted provisions are only a step in the process. The executive branch must carry out programmatic and regulatory provisions. What further work is necessary? Implementation guidance? Notice-and-comment rulemaking? By whom? And whose voices beyond the sponsors of the provision will matter in this next crucial step? And then there’s funding. Other than defense which this bill funded, Congress has until March 23 to complete the rest of its overdue 2017 appropriations legislation. Who on the Appropriations Committee supports your interests and why? Is there support on the majority and minority sides?
Frank Talk is a product of Cardinal Waypoint LLC, a new consultancy for health policy and leadership. Contact me here.
 HR 1892, 115th Congress, Bipartisan Budget Act of 2018. https://www.appropriations.senate.gov/imo/media/doc/Bipartisan%20Budget%20Act%20of%202018.pdf. Retrieved 2/9/2018. Senate Vote 31, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00031. House Vote 69, http://clerk.house.gov/evs/2018/roll069.xml.
 HR 849, 115th Congress, Protecting Seniors Access to Medicare Act. S 260, 115th Congress, Protecting Seniors Access to Medicare Act.
 News release. Bipartisan framework reached to repeal Medicare therapy caps. U.S. House Committees on Ways and Means and on Energy and Commerce, Oct. 26, 2017. https://waysandmeans.house.gov/bipartisan-framework-reached-repeal-medicare-therapy-caps/. Retrieved 2/9/2018.
 News release. Walden on passage of Bipartisan Budget Act of 2018. U.S. House Committee on Energy and Commerce, Feb. 9, 2018. https://energycommerce.house.gov/news/press-release/walden-passage-bipartisan-budget-act-2018/. Retrieved 2/12/2018.
 Owens C and Herman B. Pharma’s week of whiplash. Axios, Feb. 12, 2018. https://energycommerce.house.gov/news/press-release/walden-passage-bipartisan-budget-act-2018/. Retrieved 2/12/2018. Also White J. Just signed into law, Bipartisan Budget Act could destabilize Part D. On behalf of Horizon
Government Affairs, Feb. 9, 2018. https://www.linkedin.com/pulse/just-signed-law-bipartisan-budget-act-could-part-d-joel-white/. Retrieved 2/12/2018.
 MEDPAC. Redesigning the Merit-based Incentive Payment System and strengthening advanced alternative payment models. Report to Congress, June 2017. http://www.medpac.gov/docs/default-source/reports/jun17_ch5.pdf?sfvrsn=0. Retrieved 2/9/2018.