A ‘lamer-than-usual’ lame duck?

Nov 13, 2024

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By Ben Leonard and Chelsea Cirruzzo

Presented by The Campaign for Sustainable Rx Pricing

With Robert King and Sophie Gardner

Driving The Day

The U.S. Capitol building is seen in Washington.

A GOP sweep in Congress will dim prospects for a year-end health care deal. | Francis Chung/POLITICO

A LAME LAME DUCK? The likely GOP sweep of the House, Senate and White House has dampened expectations for health care policy riding in a lame-duck package.

Since Democrats control the Senate until early January, Republicans could be incentivized to push significant legislation until the next Congress, when they would likely have full control of both chambers. Democrats could also attempt to force Republicans to deal with a health care package in the next Congress with a slim majority.

Lawmakers face a Dec. 20 deadline to avert a government shutdown, but what else could ride on that package remains an open question, as well as whether they’ll punt on a fiscal 2025 spending deal again.

House Appropriations Chair Tom Cole (R-Okla.) told Pulse before the election that while he’d prefer to wrap up Congress’ remaining business this calendar year, that call will be left up to the president-elect. House Speaker Mike Johnson made similar comments Tuesday.

“It’s massively up in the air right now,” one of five health care industry lobbyists granted anonymity to discuss the situation told Pulse. “Policy could get lost in the political jockeying. … There is less incentive than normal for both sides to play nice because both popular and unpopular policy choices land on Republicans in 2025.”

A second health care industry lobbyist told Pulse they expect a short-term extension so the GOP gets the credit, even if the package is similar to what would have happened in other electoral outcomes.

“It has been eerily quiet post-election,” a third industry lobbyist told Pulse. “They must be waiting for smoke signals from Mar-a-Lago. My bet is on a lamer-than-usual lame duck.”

Congress typically acts on deadline, and several health care policies expire at the end of the year.

“There is a very good chance that this Congress will do at least a few health care extenders as part of a government spending bill,” a fourth lobbyist told Pulse.

Telehealth: Lawmakers are widely expected to extend pandemic-era rules that run out at the end of the year allowing broader telehealth access in the Medicare program.

Doctor pay: CMS finalized a nearly 3 percent Medicare payment cut in 2025 for doctors, who are pushing hard for relief.

Hospital at home: A five-year extension for about-to-expire pandemic-era rules allowing patients to receive hospital care in their homes has had broad bipartisan support.

Community health centers: A major form of funding for community health centers expires at the end of the year. Health center advocates are pushing for another payment bump after receiving one earlier this year.

How to pay for all the time-sensitive policies also is an open question. They could include PBM reforms or Senate-passed drug patent changes from Senate majority leader candidate John Cornyn (R-Texas).

“Does the incoming Trump administration want this Congress to pay for these provisions now or punt into next year when they are also likely needing to close out FY 25 and prepare for a budget reconciliation process?” a fifth industry lobbyist told Pulse.

WELCOME TO WEDNESDAY PULSE. We want to hear more of your lame-duck thoughts. Send your tips, scoops and feedback to bleonard@politico.com and ccirruzzo@politico.com and follow along @_BenLeonard_ and @ChelseaCirruzzo.

A message from The Campaign for Sustainable Rx Pricing:

Big Pharma games the system to keep prescription drug prices high. Brand name drug companies build blockades of patents to extend monopolies and block competition from more affordable alternatives – costing patients, taxpayers and the U.S. health care system billions of dollars each year. Market-based solutions to hold Big Pharma accountable for their egregious anti-competitive tactics, especially patent thickets, have broad bipartisan support. Congress must pass these solutions into law. Learn more.

In Congress

Sen. Bernie Sanders walks through a Capitol doorway

Senate HELP Chair Bernie Sanders remains noncommittal about his future on the committee. | Francis Chung/POLITICO

BERNIE’S FUTURE — Senate HELP Chair Bernie Sanders (I-Vt.) is playing his cards close to his vest about his future on the committee as the chamber’s leadership shifts to GOP control.

Asked if he would stay on as ranking member of the Health, Education, Labor and Pensions Committee, Sanders told Pulse he’s “trying to work through” the situation.

SEATS TO FILL — Democrats on a key Senate committee with health care jurisdiction will have several positions to fill with members losing races or not seeking reelection.

The Senate Finance Committee will lose Sens. Debbie Stabenow (D-Mich.), Tom Carper (D-Del.), Ben Cardin (D-Md.) and George Helmy (D-N.J.) — who aren’t seeking reelection — and Sens. Sherrod Brown (D-Ohio) and Bob Casey (D-Pa.), who lost reelection bids. Casey has not yet conceded.

It’s a significant shuffling of members on a committee with major power over health care, including Affordable Care Act premium subsidies set to expire at the end of next year.

How they’ll be filled: The Democratic Steering Committee, chaired by Sen. Amy Klobuchar (D-Minn.), recommends how to fill committee seats, subject to the Democratic Conference’s approval.

The steering committee considers seniority, members’ preferences and prior committee service and can’t recommend two members from the same state without a waiver. Party rules say the appointments should “reflect, to the extent possible, the diversity of the Conference, in all its forms.”

The Finance Committee is considered an “exclusive” committee, along with the Appropriations and Armed Services committees. Members can serve on only one of those panels without a waiver until every member is on at least one.

Finance Committee Chair Ron Wyden (D-Ore.) declined to name any members he’d like to add. He said he has a “lot of thoughtful colleagues who are interested.”

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In the Courts

J&J GOES TO COURT — Johnson & Johnson is taking on the Biden administration for preventing it from charging certain hospitals full price for two drugs the company previously sold at a discount in the 340B program, POLITICO’s David Lim reports.

J&J’s lawsuit, filed in federal court in Washington, is the latest in the saga over the 340B program, which provides hospitals that serve low-income patients steep discounts on drugs.

J&J told hospitals this summer that they’d need to pay full price upfront for the plaque psoriasis treatment Stelara and the blood thinner Xarelto before they can apply for discounts.

The Health Resources and Services Administration said the move ran afoul of the law if the HHS secretary didn’t approve it. J&J ultimately backed off its plans.

The suit argues that HRSA is misinterpreting the law and the rebate model allows it to comply with an Inflation Reduction Act requirement that drugs subject to Medicare negotiations not receive duplicative discounts.

HRSA declined to comment.

OPIOID EPIDEMIC DAMAGES — A civil jury awarded the city of Baltimore more than $274 million in damages in its case against major drug distribution companies for their role in the opioid epidemic, according to documents obtained by Pulse.

The two major companies, McKesson and the former AmerisourceBergen — now called Cencora — were found liable in a public nuisance lawsuit that began six years ago, Sophie reports.

The jury assigned 70 percent of the responsibility for the public nuisance to McKesson and 27 percent to Cencora — and the remaining 3 percent to “all other actors combined.”

“Justice was done,” Bill Carmody of Susman Godfrey, who represents the city in the case, told Pulse. “There’s no city in America that’s been harder hit by the opioid epidemic than Baltimore.”

The decision was first reported by the Baltimore Banner on Tuesday.

What’s next: Another phase of the case — a shorter bench trial — is set for Dec. 11, when a judge will determine how much abatement money the companies must pay the city on top of the damages. That money will go toward developing programs to help rectify opioid addiction in Baltimore.

“We respect but disagree with the jury’s verdict, which fundamentally misunderstands McKesson’s limited role as a pharmaceutical distributor,” a McKesson spokesperson told Pulse.

“We are disappointed with the jury’s verdict, which we believe does not reflect the facts of the case,” a spokesperson for Cencora said in a statement. “Today’s verdict further frays the legal and ethical tightrope the company is being asked to walk between providing access to necessary medications and acting to prevent diversion of controlled substances.”

The companies are expected to challenge the verdict.

A message from The Campaign for Sustainable Rx Pricing:

In Memoriam

INCOMING NAACOS CEO DIES — Jeff Micklos, the incoming CEO of the National Association of Accountable Care Organizations, died unexpectedly on Sunday.

Micklos previously served as executive director of the Health Care Transformation Task Force, an industry consortium that advocates for value-based care payment arrangements, Robert reports. He was also former vice president of management, compliance and general counsel for the hospital industry group Federation of American Hospitals and a lawyer for HHS.

“Jeff contributed greatly to healthcare as a distinguished leader, collaborator, and advocate. Jeff was consistently passionate and kind, and a friend to so many,” NAACOS’ board said in a statement obtained by POLITICO.

Policy change is coming—be the pro who saw it first. Access POLITICO Pro’s Issue Analysis series on what the transition means for agriculture, defense, health care, tech, and more. Strengthen your strategy.

Names in the News

Dr. Myechia Minter-Jordan will be the next CEO of AARP. She was previously CEO of the CareQuest Institute for Oral Health.

Frank Jennings is joining Pelago as president. He was previously at Castlight Health.

WHAT WE'RE READING

STAT reports that OpenAI wasn’t built for health care but is used in hospitals, pharma and cancer care.

Healthcare Dive reports that the Justice Department sued on Tuesday to block UnitedHealth's acquisition of home health firm Amedisys.

A message from The Campaign for Sustainable Rx Pricing:

Big Pharma's abuse of the patent system is designed to maintain monopolies over their biggest money-makers, boosting brand name drug makers’ profits at the expense of American patients and taxpayers. One of their anti-competitive tactics involves filing dozens, sometimes hundreds, of patents on blockbuster products to build extensive “patent thickets,” completely disconnected from any true innovation. An economic analysis found Big Pharma’s patent thickets on just five drugs cost American patients and the U.S. health care system more than $16 billion in a single year.

The Congressional Budget Office has confirmed bipartisan, market-based solutions to hold Big Pharma accountable for patent abuse will lower drug prices and the U.S. Senate unanimously passed one solution, Cornyn-Blumenthal (S.150), earlier this year. Now is the time for Congress to finish the job – and pass solutions to lower drug prices by cracking down on patent abuse and promoting competition. Learn more.