Blog Post

What last week's hearings revealed about CMS nominee Chiquita Brooks-LaSure

By Heather Bell

April 22, 2021

    The Senate Finance Committee is poised to vote on President Biden's pick for CMS administrator, Chiquita Brooks-LaSure.

    There's been tons of media coverage about Brooks-LaSure's qualifications for the job. As the Washington Post's Paige Winfield Cunningham noted, Brooks-LaSure has considerably more experience with Medicare, Medicaid, and the Affordable Care Act than her predecessors dating back to former President George W. Bush's administration. And her experience was reflected in the fact that not a single member of the Senate Finance Committee raised a direct objection to her nomination during last week's confirmation hearing. (Though Politico reports the vote may be closer than expected amid Sen. John Cornyn's (R-Texas) pushback over CMS' recent decision to rescind Texas' Section 1115 waiver extension).

    But while we know Brooks-LaSure has the resume to lead the trillion-dollar agency, we know less about the policies she would push forward if confirmed by the Senate. As head of the agency, Brooks-LaSure would be charged with overseeing Medicare, Medicaid, and key pieces of the Affordable Care Act, as well as bringing Biden's health care vision to light through CMS' regulatory process.

    Below, I round up the three biggest health policy questions facing Brooks-LaSure, what we've learned about how she'll address them, and what questions remain unanswered.

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    1. What will telehealth regulations look like after the pandemic?

    One of the biggest changes the health care system experienced in 2020 was the quick rise of telehealth—and this was made possible in part by CMS invoking Section 1135 waivers, temporarily permitting new flexibilities around provider reimbursement. For example, Medicare adopted payment parity for telehealth services, stating that it will reimburse providers "in all areas of the country in all settings" at the same rate as regular, in-person visits. But that policy—and many others—are set to expire when the public health emergency ends, meaning the next CMS administrator will play a key role in determining which policies remain, which do not, and which require modifications before they can become permanent.

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    This creates a lot of uncertainty for health care providers who quickly stood up telehealth infrastructures to continue treating patients at the height of the pandemic. During her committee hearing, Brooks-LaSure acknowledged the urgency of the question, but gave few indications into how CMS would act if she were to be confirmed. She committed to examining CMS' authority on the subject, as certain changes (such as geographic restrictions) require acts from Congress.

    Brooks-LaSure also declined to directly answer a question about payment parity for telehealth, saying instead that CMS will have to weigh those changes against existing "safeguards" that are in place to ensure program integrity.

    2. How will CMS work to expand insurance coverage?

    Without broader procedural changes in Congress, Democrats do not currently appear to have the votes for a nationwide public option plan. This means Biden is likely to rely on CMS' regulatory powers to improve access to coverage—and the agency's administrator will have several levers with which to experiment, particularly with Medicaid and the Affordable Care Act's exchanges.

    For example, it's plausible that CMS under Brooks-LaSure could allow states to use the Section 1332 waiver authority to test new approaches to coverage, such as public options, or address coverage affordability through reinsurance programs—two potential pathways that Brooks-LaSure proposed in a Health Affairs commentary published last year. CMS also oversees the ACA's exchanges and plays a key role in the communications strategy around the newly expanded subsidies and the special open enrollment period, which the administration hopes will lead to more insured consumers.

    CMS also could use Section 1115 waivers to encourage states to expand their Medicaid programs—and Brooks-LaSure if confirmed would play a key role in determining which policies would be considered promoting the "objectives" of the Medicaid program, and thus qualify for the ACA's Medicaid matching rate.

    CMS already has rejected the Trump administration's work requirement waivers, which a few states tied to their expansion plans. But it's not yet clear where CMS will draw the line. For instance, the Obama administration allowed certain restrictions on eligibility—such as removing retroactive eligibility and kicking off those who failed to pay premiums—but did not approve partial expansions or policies that eliminated eligibility for certain populations. The agency also could seek to use existing waivers to encourage states that have not yet expanded Medicaid to do so—as it is being rumored CMS is doing with Texas' 1115 waiver renewal.

    During last week's hearing, Brooks-LaSure did not delve into specific policies CMS would pursue but acknowledged that some states have objected to CMS' decision to roll back Medicaid work requirement waivers. She committed to using her position to work closely with states and ensure "states understand decisions" and are part of the process.

    3. How might CMS control Medicare spending?

    At some point during Biden's administration it is likely CMS and Congress will have to address the looming Medicare insolvency, and CMS has several levers it can use to control costs. For instance, CMS has the authority to lower provider reimbursement rates and is likely to continue the shift toward outpatient and home-based care, with additional site-neutral payment cuts. The agency also could slow the provider reimbursement rate growth without actually making steep cuts, though they would likely need to find additional cost savings elsewhere.

    One place the agency might turn is the Center for Medicare and Medicaid Innovation (CMMI), which is tasked with developing and testing alternative payment models to generate savings. For example, while Democrats in Congress are discussing broader drug pricing reforms, which CMS would have to help implement, CMMI could seek to rein in Medicare drug price spending through new payment models for Part D.

    While Brooks-LaSure did not directly address value-based payment models in her latest committee hearing, CMMI Director Liz Fowler recently noted that the center is in the process of reviewing existing value-based payment models "to define both the vision and the framework" for CMMI. The center already has delayed several payment models—and Advisory Board is eagerly watching to see what the Biden administration's vision is for the future of value-based care.

    Next steps

    The Senate Finance Committee is expected to advance Brooks-LaSure's nomination this week, though as I noted above the vote may be along party lines after Cornyn raised objections to CMS' decision to rescind Texas' Medicaid waiver. If approved, Brooks-LaSure's nomination will go to the full Senate. And while Cornyn's procedural hold on the nomination may slow the process, it doesn't appear to be intended to actually jeopardize her nomination as nominees only need a simple majority for confirmation. That said, it does suggest Brooks-LaSure, if confirmed, may have a harder time brokering agreements with Republican-led states to expand coverage.

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