Health-care legislation may take a back seat in Congress as Trump’s pick for the Supreme Court and must-pass spending bills will dominate the debate on Capitol Hill.

The House has already left for a month-long summer break; the Senate is off the week of Aug. 6 but otherwise is in session. Congress will have about six weeks to get work done between the time both chambers convene after Labor Day until they leave again to campaign for the midterm elections, with the House in session only 19 days.

A number of health-care items remain unfinished, including finalization of Department of Health and Human Services funding and Senate action to address the opioid epidemic, as well as a bill to prevent a lapse in federal pandemic response threats.

Lawmakers on both sides of the aisle are expected to use the few days they’re in Washington to set the stage for legislation likely to pass in 2019. This includes measures to bolster Obamacare’s individual insurance markets.

Some Democrats have already begun this work. Several centrist Democrats are trying to build support for a bill (H.R. 5155) that would increase the size of the tax credits some Americans receive to buy health insurance and eliminate the cap on eligibility for those credits.

Domination of SCOTUS Nomination

Senators will likely expend most of their energy on the nomination of Brett Kavanaugh as the next Supreme Court justice, as well as funding bills for the 2019 fiscal year that starts Oct. 1.

“It will be particularly hard to get anything done that isn’t viewed as an absolute necessity,” Jeff Allen, president of Washington-based Friends of Cancer Research, told Bloomberg Law in a July 30 interview. “But the reality is, in terms of midterm election politics, each side is going to try to capitalize on the level of dysfunction.”

Anne McDonald Pritchett, senior vice president of policy and research for the brand-name drug industry group Pharmaceutical Research and Manufacturers of America (PhRMA), said in a July 31 interview that Kavanaugh’s nomination combined with a short congressional calendar means “it’s unlikely that we’re going to see a lot of activity.”

If the Senate can move quickly on Kavanaugh’s confirmation, it could free up lawmakers to focus on health policy such as drug pricing measures, opioids, or even repealing the medical device tax, Bloomberg Intelligence senior analyst Brian Rye said.

Medical Device Tax Repeal

The House voted July 24 to repeal permanently a federal tax on medical devices that’s part of the Affordable Care Act.

Sen. Todd Young (R-Ind.) has been circulating a “dear colleague” letter asking for support in repealing the medical device tax. He told Bloomberg Law he believes the measure has 60 supporters in the Senate.

Ellie Dehoney, vice president of public policy and programs at Research!America in Arlington, Va., told Bloomberg Law the Senate is unlikely to pass the repeal as a stand-alone measure, but it could be attached to another tax or spending bill.

Bipartisan Support for Pandemic Bill

With both bipartisan support and a looming deadline, both Dehoney and Pritchett said they expect the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2018 (S. 2852; H.R. 6378) to pass before federal pandemic and bioterrorism response programs expire Sept. 30. The bills, which have moved out of both House and Senate committees, would reauthorize for the second time agencies like the Biomedical Advanced Research and Development Authority (BARDA), which develops and gets new medical countermeasures into the national stockpile.

Spending

Lawmakers are looking to clear a series of spending measures to avoid a government shutdown ahead of November’s midterm elections.

Sen. Richard C. Shelby (R-Ala.), head of the Senate Appropriations Committee, told reporters he’s looking to combine a $179.3 billion spending measure to fund the departments of Health and Human Services and Labor with the $675.6 billion defense spending measure. Combining the two bills—annually the most fought-over spending measures—would help ease the difficulty of passing them separately, he said.

The Senate could turn its attention to this massive combined spending measure at the beginning of August with the goal of passing it before the end of the month.

The House passed a defense spending bill in June, but hasn’t taken up a Labor-HHS bill yet.

Dehoney said there’s a real possibility lawmakers will be able to pass a Labor-HHS spending bill before the midterms, which Shelby, who took over as Appropriations chairman in April, also indicated he’s eager to do.

“I really have been amazed at how much they’ve gotten done in an election on year on appropriations,” said Dehoney, whose group advocates for health research funding.

Opioids

Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate could take up the opioids package in August but hasn’t made promises on the exact timing. PhRMA’s Pritchett said if the Senate doesn’t act before the midterms, there will be a real push to enact legislation before the 115th Congress ends in mid-December.

“There’s widespread recognition that this is a public health crisis, and my hope is that Congress treats it with that sense of urgency,” Pritchett said.

The House passed a package of more than 60 opioid bills in June.

Drug Pricing

On the drug pricing front, Rye told Bloomberg Law he’s keeping his eye on two bills that could be ripe to advance in Congress. The first is a “gag order” bill (S. 2554) approved by the Senate health committee that would lift a ban on pharmacists telling customers whether their medication would be cheaper if they bought it without insurance.

The second is known as the CREATES bill (H.R. 2212; S. 974). The Creating and Restoring Equal Access to Equivalent Samples legislation would address situations where branded drug companies deny generic companies access to samples of branded drug products needed to conduct bioequivalence testing for generic approval.

The powerful drug lobby opposes the CREATES bill, arguing it could jeopardize patient safety. Rye noted, however, “I don’t think Republicans mind at all right now doing something that is not popular with pharma.”

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