What’s Next in Washington? - May 2022 Edition

02 May 2022 Legal News: Federal Public Affairs Publication
Author(s): Dennis A. Cardoza Jennifer F. Walsh William Ball Jared B. Rifis Kate M. Kros John R. West Scott L. Klug Michael K. Crossen

Congress recently returned from its two-week recess with an extensive to-do list. Between now and the August recess, the House will be in session for a total of 32 legislative days, and the Senate will be in for 54 legislative days. With such a short timeline until the August recess and the start of campaigning for many Members, Congress and the White House look to quickly accomplish many of its priorities.

In the month of May, the conference committee will begin to negotiate the differences between the America COMPETES Act and USICA. Congress will continue its negotiations on additional COVID and Ukrainian aid, while appropriators begin to lay the groundwork on appropriations for the next fiscal year. Finally, Senator Joe Manchin is leading the charge on a new reconciliation package and a new climate change package.

See below for greater detail regarding what’s coming in this month’s edition of What’s Next in Washington? presented by the Foley & Lardner Federal Public Affairs team.

  1. Manchin leads the charge on new reconciliation and climate change packages
    1. Senator Joe Manchin (D-WV) recently met with Majority Leader Chuck Schumer (D-NY) to discuss a new reconciliation package. The bill would reform the tax code and a portion of the revenue would be allocated to reduce the national deficit in an effort to combat inflation.
      1. Manchin has outlined that he would like to increase the corporate tax rate from 21% to 25%, raise the top capital gains rate from 23.8% to 28%, and close the “carried interest” loophole.
      2. Manchin, citing inflation, has indicated that he would like no social spending to be included within the reconciliation package, including that of paid-family leave and childcare.
    2. Manchin and Republican Lisa Murkowski (R-AK) have also led discussions in crafting a new bipartisan package that would take key provisions from President Biden's Build Back Better’s climate agenda.
      1. Manchin has stated that the goal of the bill is to reform the federal oil and gas leasing process. Additionally, the bill would further investment in clean energy and aim to reduce American dependence on foreign energy.
      2. Other areas of focus could include that of domestic pipeline aid, efforts to bolster production of liquefied natural gas, and new tax credits for clean energy.
      3. Through a working group of Senate Democrats and Republicans, this new climate package would attempt to replicate the dynamic of the Bipartisan Infrastructure Law, which passed the House and Senate in 2021 with bipartisan support.


  2. The conference committee is set for the America COMPETES Act/U.S. Innovation and Competition Act
    1. In early April, Congressional leadership announced over 100 selections for the conference committee to resolve differences between the two bills. Stark contrasts remain between the two, most notably on issues related to trade, climate change, supply chain, research funding, and foreign relations towards China.
      1. To see the full list of conferees, please click here.
    2. Negotiations are set to begin in early May. Lawmakers and industry groups have urged Congress to quickly pass this legislation.


  3. Agency budget hearings continue through May as appropriators begin discussions on the fiscal year 2023 budget
    1. Following the release of President Biden’s budget in March, various heads of federal agencies; including Health & Human Services Secretary Xavier Becerra, Environmental Protection Agency Administrator Michael Regan, and Secretary of Defense Lloyd Austin, have testified on Capitol Hill regarding their respective priorities for the next fiscal year. Topics have included pandemic relief, climate change regulation, and aid to Ukraine.
      1. Agency heads will continue to testify Congress throughout May.
    2. The “Four Corners,” the top appropriators for the House and Senate, have begun discussions regarding fiscal year 2023 appropriations.
    3. House appropriators have made tentative plans to mark up their spending bills in mid to late June, potentially setting the stage for July floor votes.
      1. Subcommittee markups could take place between June 13th – 22nd, full committee markups could take place between June 22nd – 30th.
      2. Senate Appropriations Chairman Patrick Leahy (D-VT) recently indicated that he hopes to have a deal on top-line figures “in the next couple of weeks”.
    4. This will be the last appropriations cycle for Senate Appropriations Chairman Leahy and Ranking Member Richard Shelby (R-AL), both are retiring at the end of the term. Leahy and Shelby have both indicated that they hope to finalize FY2023 appropriations prior to their departure from Congress.


  4. Congress continues negotiations on supplemental Ukrainian and COVID-19 aid
    1. Prior to the two-week recess in April, a $10 billion COVID-19 relief package stalled out in the Senate.
      1. Senate Republicans insisted on a vote on Title 42, a Trump-era regulation that allowed both the Trump and Biden Administration to turn away immigrants at the border due to the public health crisis.
      2. The Biden Administration has looked to lift Title 42 on May 23rd. Following litigation halting the rollback, Department of Homeland Security Secretary Alejandro Mayorkas unveiled a new plan to reform Title 42 and manage a potential migrant surge in May.
    2. Democrats are expected to attach additional Ukrainian aid to a supplemental COVID-19 relief package. President Biden has requested an additional $33 billion in supplemental funds for Ukraine. The Pentagon recently reported that they have nearly exhausted the funds that were allocated in March.
      1. Republican lawmakers, including Sen. Mitt Romney (R-UT), have stated that they do not want to combine Ukraine and COVID aid, and have indicated that they would vote against such a bill.
      2. A major sticking point of the package is that of global vaccination funding, the funding has been opposed by Republicans. Senate Majority Leader Chuck Schumer has been a major proponent for the funding.


  5. Possible action could occur on several pieces of health legislation and regulatory policy in May
    1. User Fee Reauthorization:
      1. User Fee programs for human prescription drugs and biologics, medical devices, and generic drugs and biosimilars that were last reauthorized under the FDA Reauthorization Act of 2017 are set to expire this year on October 1st, 2022 (each has a five-year authorization period).
      2. The Senate HELP Committee and the House Energy and Commerce Committee held several hearings last month and will continue to discuss reauthorization legislation for the Prescription Drug User Fee Act (PDUFA), Generic Drug User Fee Amendments (GDUFA), Biosimilar User Fee Act (BsUFA), and Medical Device User Fee Amendments (MDUFA).
      3. As this is a must-pass piece of legislation, Members have already begun discussing possible additional priority regulatory policies as riders.
    2. Pandemic and ARPA-H:
      1. Recently, the Senate Health, Education, Labor, and Pensions (HELP) Committee voted 20-2 to report the PREVENT Pandemics Act (S.3799) favorably out of committee. The legislation includes authorizing language to establish the Advanced Research Project Authority for Health (ARPA-H). The legislation also works to modernize various aspects of public health, including data collection, strengthening the domestic supply chain, and providing more accountability for the Centers for Disease Control and Prevention (CDC).
        1. You can read more about it here.
        2. The bill will soon be considered, with the intention of passing it before the end of the year.
      2. Other major biomedical innovation and pandemic preparedness bills in consideration currently include CURES 2.0 (H.R. 6000) and the ARPA-H Act (H.R. 5585) in the House.
        1. Discrepancies remain over where to house ARPA-H, either within the National Institute for Health (NIH), or as its own separate entity.
        2. At a hearing in late April, Rep. Anna Eshoo (D-CA), chair of the House Energy and Commerce Health Subcommittee, said she continues to disagree with HHS Secretary Xavier Becerra that ARPA-H should be housed within the NIH and report to Becerra. Several bipartisan lawmakers on relevant committees agree with Rep. Eshoo.
    3. Insulin Cap:
      1. The House recently passed H.R. 6833, a bill that would cap monthly insulin costs at $35 for people with insurance. The bill passed by a vote of 232-193 in March.
      2. In mid-April, Sens. Jeanne Shaheen (D-NH) and Susan Collins (R-ME), along with Reps. Dianna DeGette (D-CO) and Tom Reed (R-NY) – the bicameral co-chairs of the Senate and House Diabetes Caucuses – unveiled draft legislation aimed at lowering insulin costs. The authors have been seeking input on the language of the bill and are expected to introduce it soon.
    4. Health Equity:
      1. Late last month, the Biden Administration released a plan to ban menthol cigarettes and flavored cigars. HHS Secretary Xavier Becerra believes the proposed rules will be a crucial step towards advancing health equity and reducing disparities in tobacco use.
        1. The FDA has been delayed in the proposed rules because of pushback from Members of Congress and industry. Meanwhile, anti-smoking groups sued the agency for taking too long to ban menthol.
    5. Mental Health:
      1. Over the course of the last several months, relevant committees on both sides of Congress have held hearings to learn more about various mental health crises affecting Americans of all ages.
      2. Most recently, the Senate HELP Committee held a hearing focused on how the federal government can better support efforts to address mental health and substance use disorders. Committee leaders are working in a bipartisan fashion to develop more federal support for mental health services, including supporting suicide screening and prevention, reducing overdose deaths, getting more access for substance use disorder treatment, and addressing various barriers that make it hard for people to get access to care.
        1. Committee Chairwoman Patty Murray (D-WA) said in her opening testimony at a hearing in March that she expects a draft package to be introduced by early this summer.
      3. Additionally, the House Energy and Commerce Committee and the HELP Committee are currently working to reauthorize several Substance Abuse and Mental Health Services Administration programs (SAMHSA) that will expire this fall.
      4. The Senate Finance Committee held their third hearing on mental health late last month, which focused on the lack of parity of treatment and insurance coverage for mental health issues versus physical health care. Chairman Ron Wyden (D-OR) noted at a Senate Finance hearing in late March that the committee is working on a bipartisan basis to fix the parity law by breaking down the financial barriers of care, including “ghost networks,” coverage limits, coverage loopholes, and stonewalling on payment claims.

You can read the Committee’s recently released report on this subject here.

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