What's New In Washington - January 2020

Author:Mr G. Hunter Bates, Brian A. Pomper and Hal S. Shapiro
Profession:Akin Gump Strauss Hauer & Feld LLP
 
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The 116th Congress has officially reached the halfway point as members return this month after a productive December. For the first time since Fiscal Year (FY) 2016, Congress completed all 12 appropriations bills prior to the holiday recess, while racking up a number of other wins in the two minibuses, from the Setting Every Community Up for Retirement Enhancement (SECURE) Act to full repeal of several Affordable Care Act taxes. With a relatively clean slate, Congress now will turn to what is expected to be a somewhat less frantic legislative period given the presidential election year.

While the Senate had planned to start last week on the impeachment trial, Speaker Nancy Pelosi (D-CA) decided to hold onto the House-passed articles of impeachment while Senate Majority Leader Mitch McConnell (R-KY) and Senate Minority Leader Chuck Schumer (D-NY) continue to negotiate the initial process and procedure for the Senate trial. Ultimately, Speaker Pelosi and Sen. Schumer are demanding that certain documents and witnesses be included as part of the Senate trial, while Sen. McConnell argues that the Senate should follow the precedent of the Clinton impeachment trial and consider the question of potential witnesses and documents after the initial presentation by House managers and President Trump's defense team. However, the Senate is now likely to start the trial next week after the House appoints managers and transmits the articles of impeachment, which is expected to happen in the next day or two.

Thanks to a delay on impeachment proceedings, the Senate had the time to move ahead with a Senate Finance Committee markup of the House-passed United States-Mexico-Canada Agreement (USMCA). On January 7, the Committee favorably reported the legislation by a 25-3 vote. Senate Leadership is currently pushing to approve USMCA by Thursday of this week before the impeachment articles arrive from the House.

Once impeachment and USMCA are finished, Congress is likely to focus the spring months on the start of the FY 2021 budget and appropriations cycle (President Trump will submit his request on February 10) as well as the May 22, 2020, expiration of a number of health programs. That deadline was set by the FY 2020 minibus package with the intention of driving bipartisan, bicameral compromise on the issues of prescription drug pricing and surprise medical billing. Other deadlines for must-pass legislation this year center around the FY end date of September 30, 2020, with authorization of the FAST Act, National Flood Insurance Program, and a number of immigration programs set to expire at the same time as funding for the federal government.

In this issue

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Health Care Outlook for 2020

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Trade Policy in 2020: Battles and Deals Ahead

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2020 Congressional Privacy Outlook

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Financial Services Update

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Tax Update

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"OnAir Podcast Episode": Spotlight on Privacy Legislation

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2020 Congressional Calendar

Health Care Outlook for 2020

Health Care Outlook for 2020

Recent months have seen a flurry of activity in Congress to address rising consumer health care costs, including surprise medical bills and prescription drug prices. Legislative action on both issues stalled in late 2019 but is expected to resume this year, although the timing and outcome remain uncertain given the impeachment process and looming election.

None of the competing surprise billing or comprehensive drug pricing proposals crossed the finish line as part of the year-end packages to wrap up FY 2020 spending. However, the legislation did establish a new deadline of May 22, 2020, for Congress to again extend certain expiring health care provisions that it only renewed on a short-term basis. This new deadline provides a pre-election opportunity and legislative vehicle for members to address bipartisan, bicameral policy priorities, including surprise billing and drug pricing, along with a number of individual health care bills already moving forward through the legislative process to address distinct issues related to specific diseases/conditions and targeted health care benefits. The year-end appropriations legislation did include the CREATES Act, which aims to stop abuse of Risk Evaluation and Mitigation Strategies (REMS) that prevent manufacturers from obtaining samples of a brand drug to create a generic version.

Bipartisan leaders of the Energy & Commerce Committee and Senate Health, Education, Labor and Pensions (HELP) Committee Chair Lamar Alexander (R-TN) announced an agreement on surprise billing in early December that relies on a benchmark payment rate for out-of-network bills along with a "baseball-style" arbitration backstop. HELP Committee Ranking Member Patty Murray (D-WA) did not endorse this plan, however, and the bipartisan leaders of the House Ways and Means Committee subsequently announced they were developing their own proposal for a "robust reconciliation process." The Ways and Means Committee is expected to release legislative text in the coming weeks and mark up its proposal in February with the goal of advancing the legislation as part of the health extenders package in May.

On the drug pricing front, House Democrats voted in December to approve the Elijah E. Cummings Lower Drug Costs Now Act (H.R. 3), but Majority Leader Mitch McConnell indicated the Senate will not consider the bill, which relies on government price...

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