February 2017

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Health Care Legislative Roundup

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Legislation to Repeal HSA, FSA Restrictions on OTC Drug Purchases Introduced in Congress

Consumers would be able to use health savings accounts (HSAs) and flexible spending accounts (FSAs) to purchase over-the-counter medications under bipartisan legislation recently introduced by U.S. Rep. Lynn Jenkins (R-KS) and U.S. Rep. Ron Kind (D-WI).

Individuals who want to use their HSAs or FSAs to pay for such medications must present a prescription at the time of purchase. The Restoring Access to Medication Act would repeal a provision of the Affordable Care Act (ACA) prohibiting OTC medication purchases with tax-advantaged medical savings accounts.

Senators Pat Roberts (R-KS) and Heidi Heitkamp (D-ND) introduced companion legislation in the Senate.

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ConnectYourCare Goes to Washington

With HSAs poised to be a central component of any ACA replacement plan, ConnectYourCare spent time on Capitol Hill educating Congressional Members and staff about the important benefits these accounts provide to employers and employees.

ConnectYourCare met with key Congressional leaders to discuss not only the benefits of HSAs, FSAs and other tax-advantaged spending accounts, but also to promote reform measures to encourage the expansion and adoption of HSAs.

Pictured below, Harrison Stone, Julie Cowley, and Meredith Cipriano meet with Congressman Dutch Ruppersberger (D-MD) in his Washington, D.C. office on February 1. ConnectYourCare’s Hunt Valley, MD headquarters are located within Congressman’s Ruppersberger’s Congressional District.

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Senate Committee Advances the Confirmation of HHS Secretary, but not without Resistance

On Wednesday, February 1, the Senate Finance Committee advanced the nomination of Rep. Tom Price (R-GA) to serve as Secretary of Health and Human Services. Although the Committee was scheduled to vote on Secretary-Nominee Price’s confirmation on Tuesday, Democrats mounted a boycott of the committee hearing, effectively delaying the committee vote.

Democrats stayed away from the meeting for a second day running, which under the committee's rules normally would have prevented the votes from taking place. But Republicans on Wednesday voted to suspend the rule that had required at least one Democrat to be present for business to be conducted.

Republican members of the committee, who were all present, then approved the nominee14-0. Next up, the Secretary-Nominee’s confirmation will go to the full Senate for a vote in the coming weeks.

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January Deadline for ACA Repeal Measure Missed, Republicans Now Looking to March-April

Congressional Republicans are using the budget reconciliation process to repeal significant parts of the ACA. Weeks ago, both the House and Senate adopted a resolution charging certain Congressional committees to produce a repeal measure for consideration by January 27. However, January 27 came and went without such a measure being advanced, and now, Republicans estimate a repeal measure to be considered in March or April.

Technically, the January deadline is not binding in any meaningful sense. Legislation produced after January 27 is still eligible for expedited consideration in the Senate as long as it complies with the reconciliation instructions included in the fiscal year 2017 budget resolution.

Republicans remain committed to pushing forward a repeal package, despite the lack of a concrete replacement plan. Leaders of the caucus continue to emphasize the need to wrap up the health care reform work quickly, but in a manner that is likely to consist of a step-by-step approach of smaller bills, rather than one large bill, which they say would repeat the mistakes of the ACA.

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Affordable Care Act Repeal Bill

On January 23, four Republican Senators – Senators Bill Cassidy (R-LA), Susan Collins (R-MN), Shelley Moore Capito (R-WV), and Johnny Isakson (R-GA) – introduced the Patient Freedom Act of 2017 under which the ACA would be partially repealed and replaced and each state could choose between three vastly different options:     • Option 1 – A state could elect to keep in place Title I of the ACA, and

continue to receive federal premium tax credits, cost-sharing subsidies, and Medicaid dollars, to the extent that those subsidies do not exceed the contributions that would have been made under Option 2.

• Option 2 – A state could elect a new “market-based system” under which the state could receive funding equal to 95% of federal premium tax credits and cost-sharing subsidies, as well as the federal match for Medicaid expansion.  An electing state could choose to receive funds in the form of per beneficiary grants or advanceable, refundable tax credits, with the funds in both cases deposited directly in a “Roth Health Savings Account” that would be coupled with a high deductible health plan and a basic pharmacy plan. 

• Option 3 – A state could design an alternative solution and regulate insurance market rules without any federal assistance.

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Affordable Care Act Repeal Bill, continuedFor Options 2 and 3, the proposal would generally repeal the insurance market reforms in Title I of the ACA, except for the following provisions: Prohibitions on annual and lifetime limits; Dependent coverage to age 26; Prohibition of pre-existing condition exclusions; Prohibitions on discrimination based on health status; Preventive service coverage requirements; ACA section 1557 non-discrimination in health care provisions; and Coverage of mental health services and substance use disorders and applicability of mental

health parity rules.On January 24, Senator Rand Paul (R-KY) also introduced the Obamacare Replacement Act. The bill does not have any cosponsors, and it is unclear at this point whether it will move forward, although it does contain many of the elements long called for by Republicans in the area of health care reform. Senator Paul has touted the bill as being ready for an immediate vote after the ACA is repealed. The Obamacare Replacement Act has three main objects: (i) increasing consumer choice by permitting less comprehensive coverage; (ii) permitting unlimited amounts to be saved in HSAs and allowing increased options for using those funds; (iii) expanding Association Health Plans (“AHPs”); and (iv) encouraging the sale of insurance across state lines. Among other aspects, the legislation proposes to expand HSAs by authorizing a tax credit (up to $5,000 per taxpayer) for individuals and families that contribute to HSAs; removing the annual cap on HSAs so individuals can make unlimited contributions; and allowing HSA funds to be used to purchase insurance, cover premiums, and OTC drugs, dietary supplements, nutrition and physical exercise expenses, and direct primary care.

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No Action by President Trump to Halt the DOL’s Fiduciary Rule, Yet

Nearly two weeks after President Trump was sworn into office, the Department of Justice continues to defend the Department of Labor’s Fiduciary Rules in a lawsuit filed in a Texas federal court. While many in the investment or financial services industry have speculated that a Trump Administration would abandon the Rule in court, and eventually repeal the regulation, President Trump has yet to indicate his posture on the Rule which has an April 2017 deadline for compliance.

But across the Mall, some Republicans are not waiting on the White House to take action. Congressman Joe Wilson (R-SC) introduced the Protecting American Families’ Retirement Advice Act which would provide a two-year delay of the Fiduciary Rule. Rep. Wilson noted that his legislation would “delay the implementation of this job-destroying rule, giving Congress and President-elect Donald Trump adequate time to re-evaluate this harmful regulation.”

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Series of Executive Orders Impose Regulatory Uncertainties

President Trump on January 30, 2017, signed an executive order that will seek to dramatically pare back federal regulations. The executive order includes a provision that requires agencies to cut two existing regulations for every new regulation introduced.  On January 20, the White House issued a memorandum to the heads of executive departments and agencies describing a “regulatory freeze” process under which, subject to limited exceptions, no regulations are to be submitted to the Office of the Federal Register until they have been reviewed and approved by an appointee or designee of President Trump. The memo also orders certain regulations that have been filed with OFR, but not yet published, to be withdrawn.

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Attend Our Webinar for the Latest News

Join Harrison Stone, ConnectYourCare’s Chief Counsel, on Thursday, February 23, 2017 at 1PM EST for the first informative webinar in our Legislative Landscape 2017 Series, in which he'll highlight the key health care legislative updates you need to watch for in 2017.

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