Medicare Inpatient Hospital Payment for New Medical Devices; Medical Device Tax

Sasha Simpson, Health Policy Analyst 
April 6, 2015

Medicare Inpatient Hospital Payment for New Medical Devices:  CMS is likely to approve four new technology add-on payment applications in the 2016 final regulation for inpatient hospital pay. This is positive for manufacturers and distributors of the new medical devices, in our view.

Medical Device Tax:  We believe the legislation to repeal the device tax is most likely to move through the House after the Supreme Court rules on King v. Burwell in June.  The legislation could reach enactment as part of a larger bill in September when Congress sets government spending for part or all of the 2016 fiscal year and raises the debt ceiling.  If the legislation were to stall in the current Congress, the likely 2017 Senate Democratic leader, Charles Schumer of New York, would be a more likely ally than the current Democratic leader, Harry Reid of Nevada.  Senator Schumer, who is slated to move into the top Democratic leadership position in 2017, has voiced his support this year for repeal of the device tax.

The Doc Fix; SCOTUS’s Ruling on the ACA

Paul Heldman, Senior Health Policy Analyst 
April 1, 2015

The Doc Fix: The legislative risk will likely be minimal through 2016 for cuts in projected Medicare payments to hospitals, post-acute care and other health providers after likely enactment in mid April of a $210 billion, 10 year bill to replace the flawed Medicare physician pay formula and extend children’s health insurance funding.  The bill would squeeze about 1% of projected aggregate Medicare payments to hospitals and post-acute care, including hospice, over the next 10 years.

The Supreme Court Ruling on Federal Subsidies:  The Supreme Court ruling is a close call, however, and nine to eleven southern and mountain states, including Texas, would likely resist starting a state exchange to keep subsidies flowing if the court rules them illegal on federal  exchanges.  A ruling against the administration poses a threat to an otherwise positive regulatory outlook for hospitals.

Iran Deal Adds More Pressure to Oil Prices; North Dakota Oil Stabilization Regulation; Crude-By-Rail Regulation

Former Secretary Spencer Abraham, Senior Energy Analyst &
Joe McMonigle, Senior Energy Analyst
April 6, 2015

Iran Deal Adds More Pressure to Oil Prices But Congressional Action Expected:  With the announcement of a framework deal with Iran on its nuclear program, the White House is in full sell mode until April 14, when Congress returns from its scheduled recess for Passover and Easter. Any deal is likely to be viewed by Congress as too accommodating to Iran. After that point, Congress is expected to pass bipartisan legislation in mid-to-late April requiring the deal to be approved by Congress. President Obama said he will veto the bill, but with eight Democrat Senators as cosponsors the legislation is in striking distance of a veto-proof majority. The White House is working on an approach that will circumvent Congress. Current law requires congressional approval to “lift” the sanctions but the president can “suspend” sanctions if he deems it “in the national interest.” The Administration plans to “suspend” sanctions for years, or at least through the president’s second term. Iran is seeking immediate sanctions relief, especially with regard to oil exports. The White House contends it will be phased in. The question of sanctions will be a key negotiating point in talks for a full agreement due by June 30. Whether the sanctions relief is in weeks or months, we expect an extra 500,000 barrels per day of Iranian crude exports by the end of the year just from turning on existing fields. This is similar to Libyan exports coming back online last fall, which led to a production surplus and subsequent price collapse. However, getting back to pre-sanctions production levels of about 4 million barrels per day will take much more time, investment and western technology.

North Dakota Oil Stabilization Regulation Starts April 1:  North Dakota’s new rule requiring producers to stabilize crude oil and remove flammable properties at the well site before transport goes into effect on April 1. The state regulators hope the rule will reduce or eliminate fireballs and explosions that have resulted from recent crude-by-rail train derailments. The acting head of the Federal Rail Administration told Congress late last month that the draft federal crude-by-rail regulation is unlikely to contain similar language due to concerns about legal authority. However, Reuters reported this week that safety advocates believe the North Dakota rule will be ineffective because it does not address increased vapor pressure of fully loaded oil tankers in transit.

Federal Crude-By-Rail Regulation Expected Later This Month:  The White House is currently reviewing draft crude-by-rail regulations from the Department of Transportation, and we could see a final rule by the end of April.  We expect the rule to require new cars or retrofits with thicker 9/16″ steel hulls. We see the older DOT-111 tank cars being phased out in 2-3 years and the newer CPC-1232 tank cars phased out in 5-7 years. Most of the burden and expense of the regulation will fall to the energy industry which generally owns the tank cars. The rail industry seems to have escaped tougher brake requirements, speed limits and two-man crews.

Net Neutrality Rules to be Published Soon; Comcast-Time Warner Cable; Spectrum Set-Asides

Paul Glenchur, Senior Telecom-Cable Analyst
April 6, 2015

Net Neutrality:  The FCC’s net neutrality rules will soon be published in the Federal Register, triggering appeals in federal court.  We continue to believe the reclassification of broadband as a Title II telecom public utility is probably sustainable but the Commission could face vulnerabilities on its forbearance decisions, a risk factor that works against the interest of cable and telecom broadband service providers.  There are also significant legal questions about compliance with administrative notice requirements and the common carrier treatment of mobile data services.  Despite the Title II victory the FCC delivered to net neutrality purists, the rules present legal, implementation and political risks to all industry players, including edge providers like Netflix, Amazon, Facebook and others.  These mutual risks could lay the foundation for meaningful discussions over a legislative alternative in the months ahead.  Serious discussions in this regard could generate more positive long-term sentiment for cable operators and telcos.

Comcast-Time Warner Cable:  The recently-announced deal between Charter Communications and Bright House Networks potentially resolves a minor issue affecting the review of the Comcast-TWC merger.  Time Warner Cable consolidates programming and equipment purchases with Bright House pursuant to a prior arrangement and the risk that Bright House systems could expand Comcast negotiating leverage with independent programmers should not be a concern if Charter acquires Bright House.  The larger regulatory concern in Comcast-TWC, however, remains expanded broadband subscriber reach and its potential impact on emerging over-the-top video services.  We think the deal should still gain approval with major conditions, including incorporation of the substance of the new net neutrality rules, a condition that could also apply to the AT&T-DirecTV deal.  The FCC shot clock is on hold and the merger review is likely to carry into the summer.

Spectrum Set-Asides:  T-Mobile, Sprint and Dish Network want the FCC to reserve at least 40 MHz for bidders other than AT&T and Verizon in the upcoming incentive auction of broadcast airwaves.  The smaller competitors argue that the two largest wireless service providers already control 73 percent of commercial spectrum below 1 GHz, prime airwaves due to superior signal propagation characteristics.  We think the FCC is inclined to expand the reserve from the current 30 MHz to the requested 40 MHz but the move could risk a legal challenge from the major carriers as they could be forced to compete against each other to win 20 MHz of paired spectrum holdings in major markets.  Because regulators have indicated that they want four nationwide carriers in the market (by signaling a T-Mobile and Sprint combo is unwelcome), the second tier providers insist they both must have enhanced access to critical low-band spectrum to ensure their long-term competitive survival.

Transformation Within the Defense Industry Accelerating

LtGen Emerson “Emo” Gardner, Senior Defense Adviser
April 6, 2015

Within robust but flat growth future budget toplines, Pentagon investment is becoming more concentrated in fewer major programs with very long run periods, e.g., JSF, tanker, bomber, shipbuilding, etc.  Pentagon “acquisition reform” initiatives will inevitably pressure margins and limit profit incentives.

The defense industry is continuing to examine its position within this environment, intent on shedding lower margin businesses. Consolidation and big muscle movements that began a few years ago with Northrop spinning off Huntington-Ingalls, and ITT spinning off Exelis, have progressed this year to Harris buying Exelis and UTX spinning off Sikorsky.  Expect another round of major changes after the last remaining open major defense programs are awarded over the next three to twelve months.