Legislative Update 2/15/2021: COVID-19, Drug Pricing Program, Nebraska State Legislature

This is the legislative update for February 15, 2021. View all updates here.

• The House Energy and Commerce (E&C) Committee approved a package of COVID-19-related legislative proposals, including funding for pediatric behavioral health services and a specific Medicaid FMAP increase.

• The Senate failed to convict President Donald Trump at his second impeachment trial.

• Judge Rogers held a hearing regarding the 340B Drug Pricing Program lawsuit against Health and Human Services.

• This week’s theme in the Nebraska State Legislature is COVID-19 liability immunity for organizations and healthcare providers.

The February 15, 2021 legislative update includes highlights from both federal and state legislatures.

Federal Updates

Congress

COVID-19 Relief

The House Energy and Commerce (E&C) Committee approved a package of legislative proposals that will be included in a larger COVID-19 relief package.

As expected, this legislation tracks closely with President Biden’s American Rescue Plan (ARP) — it does not include additional provider relief funding (PRF) or a general increase to Medicaid FMAP.

The bill does include:

• Funding for behavioral health services, with a small amount specifically for programs that impact kids, such as:
  • Child Traumatic Stress Network
  • Project AWARE
  • The Behavioral Health Workforce Education and Training Program
  • Youth suicide prevention
• A specific Medicaid FMAP increase to incentivize states to cover:
  • Mobile crisis intervention services for people experiencing mental health or substance abuse crises
  • Vaccine administration
  • Home- and community-based Medicaid services
• A provision allowing states to extend postpartum coverage to 12 months under Medicaid and the Children’s Health Insurance Program (CHIP).

House leaders hope to have a final vote on the bill by the end of February.

Impeachment

Over the weekend, seven Republican Senators — including Nebraska’s Sen. Ben Sasse — voted to impeach President Donald Trump for a second time. With a 57-43 vote, the Senate failed to reach the two-thirds majority (57-43) that is needed to convict. President Trump was acquitted once again, but the discussion is likely to continue.

Later this month, the Senate Rules Committee will host multiple hearings to further investigate the deadly attack on the Capitol that took place on January 6, as well as to consider creating an independent commission like the one that investigated the September 11 attacks. However, legislation may be required to form such a committee.

Hearings on Capitol Hill this week include:

340B Drug Pricing Program

The 340B Drug Pricing Program provides financial assistance to hospitals that serve vulnerable communities, in order to manage the rising costs of prescription drugs. The program requires pharmaceutical manufacturers that participate in Medicaid to sell outpatient drugs at discounted prices to healthcare organizations — including children’s hospitals — that provide care for many low-income and uninsured patients.

Learn more about the 340B Drug Pricing Program.

At the end of 2020, the Children’s Hospital Association (CHA) joined the American Hospital Association (AHA) and other hospital organizations to file a lawsuit against Health and Human Services (HHS). The suit cited a lack of enforcement to Pharmacy Benefit Managers (PBMs) and pharmacies that have been refusing to participate in 340B drug discounts to providers.

On February 9, Judge Rogers held a hearing on the lawsuit. The administration argued that since HHS had finalized the Administrative Dispute Resolution (ADR) Regulation (TRANSLATION: A set of processes to resolve disputes without a trial), all disputes between 340B providers and drug companies must be resolved through the ADR process — not in the courts.

The hospital associations countered, arguing that since the complaint is against HHS’ failure to enforce the requirements of the 340B program — and not against the drug companies — the ADR process cannot provide the necessary relief.

The court is reviewing the motion, but did not set a timeline for its decision.

Meanwhile, a Dear Colleague letter is being circulated on the Hill this week urging HHS Secretary Becerra to protect the 340B program.

State Updates

Nebraska Legislature

The Legislature’s hearing schedules have daily or weekly themes. This is intentional, as it allows testifiers and senators who are subject matter experts to dive deep into the matter while already in town.

This week’s theme is COVID-19 liability immunity.

Tuesday, Feb. 16 is the annual “University of Nebraska Day” before the Appropriations Committee, as all new funding requests are heard the same afternoon before committee members.

LB139

On Thursday, February 18, the Judiciary Committee of the Nebraska Legislature will hear testimony on LB139. This bill provides targeted and limited COVID-19 exposure liability protections against meritless lawsuits. It is a product of the Nebraska Chamber, following requests from more than 50 organizations — including healthcare facilities, schools, local governments, churches, nonprofits, and businesses — asking for temporary legislation.

Among the many provisions, LB139 shields healthcare providers from liability for civil damages that cause or contribute, either directly or indirectly, to the death or injury of someone as a result of the provider’s acts or omissions while providing or arranging care in support of COVID-19. This means that if a provider is acting in accordance with guidelines recommended by public health officials — such as cancelling an elective procedure or accidentally exposing a patient to COVID-19 when they were acting correctly — they won’t have a lawsuit brought against them.

Despite attempts to make the provisions of the legislation retroactive, these attempts failed for being unconstitutional.

Senator Tom Breise’s (R-Dist. 41, Albion) bill would sunset on the earlier of December 31, 2022 or one year after the end of the COVID-19 state of emergency.

LB52

Also on Thursday, February 18, Senator Steve Lathrop (D-Dist. 12, Ralston), chairman of the Judiciary Committee, will prevent his COVID-19 liability bill, LB52. This bill is different from the LB139 bill, as it creates a civil liability exemption relating to injury or death resulting from an alleged exposure to COVID-19. There have already been 8,200 complaints related to COVID-19 that have been filed against US organizations.

This week’s hearings include, but are not limited to:

If you personally are aware of a bill and would like to add your expertise, feedback, or questions, please contact Liz Lyons at llyons@childrensomaha.org.

Key Dates

Child Health Champion Advocacy Team

Please join the Children’s Child Health Champion Advocacy Team every Thursday at 7:30 a.m. for a 30-minute call.

Advocating for children is extremely important at all stages. This internal group of stakeholders — comprised of providers and experts across the continuum of care at Children’s — meets weekly to ensure we are leading the discussion on child advocacy in the region.

Learn more about our advocacy and legislative work in our community.

Advocacy & Outreach

If you are interested in joining the movement, contact Liz Lyons at llyons@childrensomaha.org for more information.

Sources: CHA, AHA, The Hill, HHS, Peetz & Co., Nebraska Legislature, OWH, US Department of Labor