January 23, 2026 • 28 mins
Based on AHLA's annual Health Law Connections article, this special ten-part series brings together thought leaders from across the health law field to discuss the top ten issues of 2026. In the first episode, Jackie Papish, Partner, Barnes & Thornburg LLP, speaks with Emily Felder, Shareholder, Brownstein Hyatt Farber Schreck LLP, about how the One Big Beautiful Bill Act and reduced federal health care spending will continue to impact the health care industry in 2026. They discuss issues related to state directed payments/provider tax credits, work requirements, the Rural Health Transformation Program, Administration oversight of federal funds to the states, and implications as the midterm elections approach. From AHLA’s Hospitals and Health Systems Practice Group.
Watch this episode: https://www.youtube.com/watch?v=N_blsonhIGg
Read AHLA's Top Ten 2026 article: https://www.americanhealthlaw.org/content-library/connections-magazine/article/a879dda5-35f9-46fb-ad45-1b0799343d74/Health-Law-Forecast-2026
Access all episodes in AHLA's Top Ten 2026 podcast series: https://www.americanhealthlaw.org/education-events/speaking-of-health-law-podcasts/top-ten-issues-in-health-law-podcast-series
Learn more about AHLA's Hospitals and Health Systems Practice Group: https://www.americanhealthlaw.org/practice-groups/practice-groups/hospitals-and-health-systems
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:01):
Welcome to AHLA's annual Top 10 Series, where we
discuss the major health lawtrends and developments of 2026.
Learn more about AHLA atamericanhealthlaw.org.
SPEAKER_01 (00:16):
Hello and welcome to episode one of AHLA's 2026 Top
10 Podcast Series.
My name is Jackie Papish.
I'm a partner at Barnes andThornburg in Washington, D.C.,
and vice chair of AHLA'shospitals and health systems
practice group, and I'll be yourmoderator today.
I'm joined here by Emily Felder,shareholder at Brownstein High
Barber Shrek.
(00:37):
Emily is the author of therecently published AHLA
Connections article titledImpacts of the One Big Beautiful
Bill Act, Implementation andReduced Federal Health Care
Spending, which will serve as abasis for our discussion today.
Emily, thank you so much forbeing here.
Can you take a couple of minutesjust to tell us a little bit
about yourself?
SPEAKER_02 (00:54):
Absolutely.
Thank you so much, Jackie, forhaving me.
I'm a shareholder at Brownsteinand I chair the health care
policy group.
I started my career on the Hillworking on healthcare policy
issues most recently for theEnergy and Commerce Committee,
and then served at CMS, where Iwas the director of the Office
of Legislation.
So I was the chief liaisonbetween CMS and the Hill.
Now at Brownstein, I representhealthcare companies before
(01:18):
federal agencies and beforeCongress, advising them on
healthcare policy issues thatimpact their companies.
So great to be here with youtoday.
SPEAKER_01 (01:25):
Thanks so much, Emily.
Why don't we go ahead and setthe stage for our listeners
here?
We're talking about today anarticle that you authored that
centers on the one big beautifulbill act.
Or as some might refer to it, Ithink we've previously discussed
OB3.
Can you please give ourlisteners just a little bit of a
baseline as to what the bill isabout and maybe what some can
(01:45):
what are some considerationsthat are at play with respect to
it?
SPEAKER_02 (01:50):
Absolutely.
I think it's important toremember as a threshold matter
that this was a bill that waspassed with only Republican
votes.
It's a reconciliation bill,which means it can pass the
House and the Senate with onlyRepublican votes if those
parties are in power.
And so it really reflects thepresident's priorities,
congressional Republicanpriorities, but not the intent
(02:13):
of the entire Congress.
And so when you think aboutthat, uh the driving factor of
this bill was to extendPresident Trump's 2017 tax cuts.
So the Tax Cuts and Jobs Actthat passed during his first
term, those tax cuts were up toexpire at the end of last year.
And the president wanted avehicle to extend those tax
(02:34):
cuts.
In order to do that, they neededto cut a lot of federal funding
to pay for those tax cuts.
So while this bill has hugehealth care policy implications
and huge health care cuts, uh,it really isn't a health care
policy bill.
It was a tax bill that needed todraw in Medicaid and other
federal health programs to beable to pay for continuing those
(02:58):
tax cuts.
So that's important because itreally wasn't policy driven.
Um it is an entire recalibrationof the federal-state partnership
with Medicaid.
It focuses a lot on decreasingfederal funds to states to pay
for programs that have reallyincreased in funding and access
(03:19):
and coverage over the last 10 to20 years.
And I think that the thecongressional estimates are
about a trillion dollars over 10years will be cut from the
Medicaid program.
Um so I think there's going tobe a lot of political
implications in the midterms,and we can talk about that in a
little bit.
Uh, but certainly providers,large healthcare systems,
(03:41):
states, uh, beneficiary groupsare grappling with how are we
going to change uh the way thatwe interact with the federal
government over a relativelyshort implementation period?
SPEAKER_01 (03:53):
Now, a couple of the things that you mentioned uh in
your article include um uhstate-directed payments and
these provider tax credits.
So, for those of our listeners,maybe who aren't as familiar or
as steeped in the language ofthe bill and the implementation
of the bill, can we take acouple of minutes and just touch
on those two components so thatfolks kind of understand what uh
(04:14):
what those are exactly and alsowhat's the impact of those and
how might that impact bothproviders and beneficiaries
alike?
SPEAKER_02 (04:23):
Absolutely.
So the state directed paymentsand the provider tax piece of
the bill are where the bulk ofthe savings come from.
So when you hear about thetrillion dollar cut over 10
years for Medicaid, most of thatis coming through the changes to
state directed payments andprovider taxes.
So starting with the providertaxes, these are uh provisions
(04:45):
that allow states to taxhospitals, you know, large
providers, uh up to 6% of theirpatient revenue.
And from that, they can drawdown additional federal savings.
So if the Medicaid program is astate federal partnership or the
state pitches in a certainamount of dollars, and the
federal government matches that,these provider taxes are an
(05:08):
additional way for states todraw down dollars and allow the
federal government to matchthat.
So it's been capped at 6%.
Um, you know, what this billdoes is to say that 6% threshold
is going to get a lot smaller.
That 6% threshold is going to goto 3.5% starting in 2028.
(05:29):
So nothing will change for thefor the interim period, but in
2028, they're going to reducethat threshold by 0.5% until
it's to 3.5%.
So that's a significant changein how many additional sort of
supplemental dollars states candraw down from the federal
government.
It's important to note this onlyapplies to the expansion states.
(05:51):
So 41 states expanded Medicaidafter the Affordable Care Act
allowed Medicaid to apply toable-bodied adults.
So those 41 states will havethis change.
For the nine states or so thatdid not expand Medicaid, they
can continue that 6% threshold.
(06:12):
So it's really a way for uhRepublican lawmakers to
acknowledge that states thathave expanded Medicaid under the
ACA are drawing down morefederal dollars than their
counterparts that did not expandMedicaid.
For the state directed payments,that's a more recent funding
(06:32):
mechanism that uh allows statesto charge NCOs a little bit more
so that the Medicaid paymentsare closer to Medicare rates or
even the average commercialrate.
So to say, you know, Medicaidrates are typically much lower
than Medicare or commercial.
And so this is a way to getproviders to pay, or sorry,
(06:54):
rather, plans to pay more todraw down additional federal
dollars.
Uh those state directedpayments, like I said, have been
cropping up more in the last 10or so years and have really
increased so that you see someMedicaid providers getting paid
closer to the commercial rate.
So what Congress did is to say,we don't think Medicaid should
(07:16):
get the commercial rate.
We think they should get closerto Medicare.
So they're capping those ratesat Medicare rates.
And again, the expansion statesare treated a little differently
than the non-expansion states.
The expansion states are cappedat 100% of the Medicare rate.
So now you can only get paidthat Medicare rate, uh, not the
commercial, and thenon-expansion states can get up
(07:38):
to 110% of Medicare.
Uh, but together, you know, uhthese provider taxes and state
directed payment changes umaccount for the majority of
those Medicaid savings.
So it's pretty significant.
I think provider taxes, thosechanges are about 700 million or
700 billion rather over 10years, and the state directed
(08:01):
payments changes are about 150billion in savings over 10
years.
SPEAKER_01 (08:07):
Those are some really big numbers.
Um not really that long of atime period.
Um, I mean, what does thatreally uh mean?
Or I guess sort of in yourexperience in dealing with um,
you know, the OB3 since uh itsadoption last year, I mean, what
does that really mean for theproviders who might have you
know big um populations that areMedicaid beneficiaries?
SPEAKER_02 (08:30):
Yeah, you know, states are going to figure out,
they're gonna have to figure outhow to fund Medicaid with
significantly less federal moneycoming in.
I think there's a lot of concernabout access to services.
Certainly, states are going tohave to decrease the um amount
of services that they provide ifthey're going to have these
(08:51):
significant cuts.
I also think providers are gonnabe thinking about what we can do
to make up for this change uh inreimbursement because Medicaid
typically does have very lowreimbursement levels.
Um are there service lines thatthey can't provide?
Are there areas they're notgoing to be able to provide
services to?
(09:11):
Uh, so it's going to be reallychallenging.
I think that, you know, onething we heard over and over
from Congress during this timeperiod is the intention was to
look at, quote, waste fraud andabuse.
The intention was also not toimpact children, because we have
to remember the Medicaidpopulation is about 50% kids.
(09:33):
Uh, and so while it has grownsignificantly, most of that
growth has been with adultpopulations.
So a lot of these changes weresupposed to emphasize changes
that would impact thoseexpansion states, the adult
population.
But certainly when you'relooking at this significant of a
cut, there are concerns aboutimplications to children's
(09:55):
hospitals, where if you have a50%, 60%, 70% of the children
going to a children's hospitalare on Medicaid, those impacts
are going to not only hit thestate, but the provider and kind
of what access points kids aregoing to be able to reach as
well.
Um, so I think there's going tobe a lot of impacts throughout
the program, not just to thatone specific able-bodied
(10:18):
population that Congress wasintending to impact.
SPEAKER_01 (10:22):
Right, right, understood.
Um, well, as for sort of theable-bodied population, we know
one of the biggest components ofum the OB3 that we've seen come
through, and one that's notparticularly new, a new concept
or surprise necessarily relatesto the work requirements.
Um, can you help us justunderstand a little bit more
about what the work requirementsactually are, um, you know, why
(10:46):
we're seeing their inclusionhere in OB3, um, and just you
know, simply like how how the uhthe implementation of the work
requirements might affect someof the key stakeholders uh here
in the in the healthcareindustry.
SPEAKER_02 (10:58):
Yeah, absolutely.
So the work requirements aregoing to be implemented really
quickly.
As you mentioned, you know,state directed payments and
provider taxes, those are large,large changes, but they're not
going to go into effect reallytill 28.
But work requirements aresupposed to start at the end of
this year, and that wassomething that was heavily
negotiated.
A lot of Republicans who believeheavily in some sort of skin in
(11:22):
the game for beneficiaries whoare uh taking part in the
Medicaid program were very uhforceful about wanting to get
that done as soon as possible.
Uh, and we've seen states likeGeorgia, they have their
Pathways to Coverage programwhere they have implemented a
work requirement for Medicaidfor several years now.
Um and we expect CMS toimplement this pretty quickly.
(11:45):
They had guidance out late lastyear.
Uh essentially, it requiresanyone who is an able-bodied
adult without dependence.
So it excludes, you know, folksthat have dependent children or
other sort of family membersthat are dependent on them.
Uh but if you are required toparticipate in this program, you
must show that you've engaged insome sort of community
(12:07):
engagement requirement for 80hours a month.
And so that could be school,that that can be work, that can
be volunteerism, job training.
There's a whole host ofactivities.
But really, I think the concernthat states have is the
reporting piece, right?
Making sure that everyindividual who's enrolled in
Medicaid, one, knowing whetherthey're eligible or not for the
(12:30):
program or required toparticipate or not, but then
also accounting for andattesting to these activities on
a routine basis will bechallenging.
And I think Georgia's seen thatbear out, where the cost of
reporting, um, the cost ofmaintaining that attestation is
very challenging over time.
Um, I would say CMS hasacknowledged this, right?
(12:52):
They've said this will bechallenging.
This is an administrativechallenge for states.
This is going to be a challengefor beneficiaries.
Um, and and they've invested andsort of thought a lot about AI
tools and tech and what they cando to ensure that this goes
well.
Uh, but I think the concern isthe cost and the admin cost of
setting up these systems isgoing to outweigh, you know,
(13:14):
maybe individuals who uh decide,okay, my Medicare coverage is
not worth having to work or dothese attestations.
I think there's a lot of concernabout folks falling through the
cracks and trying to figure outhow to handle that before
implementation begins.
SPEAKER_01 (13:31):
Yeah, yeah.
I mean, just talking with you onthis very short podcast, I have
a lot of questions about, youknow, what does that
implementation really look likeacross the United States and
tracking and whatnot.
So it will be very interestingto see how that rolls out and
what sort of perhaps you knowheadaches are both at the state
level and the and the federallevel for you know programs that
(13:52):
are already, you know, somewhat,somewhat challenged, I would
say, in terms of administrativeuh um efforts.
So um, okay, well, the other bigum you know component of OB3
that I want to make sure wetouch on, and one that we've
seen a lot about in the news isthe rural health transformation
program.
Um and you know, a lot ofefforts by the states to get
(14:12):
things rolling with respect tothis program.
Um can you give us a little bitmore um color as to what the
program is about?
Um, and perhaps, you know, aswe've seen in the news, what are
some concerns about the rolloutof the program or you know,
other challenges I think thatthe states and providers within
those states who areparticipating in the program are
facing?
SPEAKER_02 (14:34):
Absolutely.
Uh, you know, it's interestinghow this program came about
during the negotiations on OB3.
There were a lot of concernsabout rural hospitals.
So a lot of concerns about, youknow, the funding cuts that we
discussed earlier.
How is that going to impactproviders across the country,
but most particularly ruralhospitals?
That's a constituency that a lotof Republicans are close to and
(14:58):
concerned about.
The sustainability, there'vebeen a ton of rural hospital
closures in the last decade.
Uh, how is rural health caregoing to handle this level of
impact when they're alreadydealing with very small margins?
Uh, so this rural healthtransformation fund was
Congress's attempt to answerthat question.
(15:18):
It gives$50 billion to statesover five years to invest in
rural health care.
Uh, you know, the bill itself isactually fairly expansive, and
you've seen CMS implement itthat way.
It's consistent with the statutesaying, you know, there's a
whole host of different thingsyou can use this money for.
Uh, you know, tech advancements,uh, EMS models, you know,
(15:42):
upgrades to uh AI, that sort ofthing.
Um, but really it's been knownas the rural hospital funding
program.
And so, you know, you saw a lotof senators have concerns about
how will this money be given outby the states.
CMS has implemented it extremelyquickly.
(16:02):
I mean, it was supposed to beimplemented for fiscal year 26.
Uh, the funding announcementswent out over the holidays.
Uh, and so they have moved veryquickly.
They set up a new rural healthoffice, they have a very
detailed funding announcement.
Um, and and the the funding wasallocated fairly equally among
(16:22):
the states.
Uh the law was written in a waywhere for some of the
discretionary funding, theycould have allotted it to a
small number of states, 15, 16.
Uh, but all 50 states got notonly the initial sort of
statutorily required funding,but they also got the additional
um subjective funding.
(16:43):
And so you saw taxes got themost at around 281 million.
And then I think New Jersey gotthe least, but there wasn't a
huge gap between what uh statesreceived.
So I think the concern here andsort of the push and pull is
going to be how do statesallocate these dollars?
(17:03):
Are they going to go primarilyto providers, primarily to rural
providers, or are they going togo to other entities that will
work with rural providers, uh,but may not do exactly what
rural uh healthcare providerswould do if they had the funding
themselves?
And so there's going to be apush and pull and so, you know,
uh and a lot of oversight, Ithink, by CMS to make sure that
(17:26):
states are keeping close to whatthey put in their applications.
Um, but it's a lot of money.
It's a lot of money to send outthe door over five years.
Uh, it's also a completely newprogram.
Uh states haven't seen thislevel of investment in rural
health care in a long time.
So I think CMS sees a lot ofpromise in trying to innovate,
(17:46):
trying to think of you know, newways to ensure access to care
and high quality care for ruralAmerica.
Uh, but I also think there couldbe some pitfalls there too.
SPEAKER_01 (17:58):
Yeah, we've um, you know, I just in my practice have
taken a look at what you knowthe rural hospitals um you know
health uh is is looking like interms of um uh over the coming
years, um, some of thedifficulties that they've been
uh uh facing.
And I think that this issomething that you know folks
are holding out hope will willhelp, obviously.
(18:19):
Um, but there are somesignificant, I think, concerns
about um closures over thecoming years with respect to
those rural hospitals andfiguring out ways to support
them, whether it's you knowdirect payments to the hospitals
themselves or perhaps maybe someinnovative solutions to help
support them.
Um I think you know the comingyears will tell sort of how how
(18:40):
that uh how that plays out, ofcourse.
Um we've seen some uh somearticles in the news about the
rollout of the funds um to thestates and whether the states uh
are implementing perhapspriorities in alignment uh or
efforts in alignment with um thepriorities of this
administration and perhaps uhyou know situations in which
(19:04):
funds could be withheld if umyou know certain uh states are
not implementing policies inalignment with certain
priorities.
Um I'm not sure if you can speaka little bit to that or or what
you've seen in your practice andand what states might be um you
know might be expecting uh asrelates to those concerns.
SPEAKER_02 (19:23):
Yeah, absolutely.
And I think this administrationhas not been shy about sort of
their viewpoint that federaldollars should be spent in
alignment with the president'spolicy goals and the HHS
secretary's policy goals.
And we saw that a lot in thefirst few months of the
administration where there weresignificant freezes on federal
grant dollars, federal researchdollars, as they went through a
(19:47):
rigorous review of what theyfelt federal dollars should be
spent on.
And there is a lot of latitude.
The administration has a lot oflatitude on deciding how to
spend those dollars.
Um, you know.
In this case, I think as itrelates to this grant process,
CMS is allowed to reduce orwithhold funds if the um
(20:10):
activities that they're spendingthe funds on are not in
alignment with what was in theapplication.
So they've said we intend to dorigorous oversight.
We intend to look at what didthe state apply for.
We awarded these dollars.
Are they spending the dollars inalignment with what they said
they would do in theapplication?
And so I think that as long asstates are carrying out their uh
(20:35):
duties and sort of using thefunds for what they said they
would use them on, I think thatis, you know, something that
they don't have to worry about areduction of funds or or um you
know funds being taken away.
I do think that um, you know, weshould though expect this
administration to have arigorous oversight process, look
(20:56):
very closely at how states arespending these dollars.
Uh as I mentioned earlier, CMSset up an entirely new office on
rural health transformation uhthat is set up to review these
applications, review the use ofthe funds.
Um, and so, you know, I don'tthink that an unrelated policy
that a state uh pursued as itrelates to something outside the
(21:21):
scope of this program wouldresult in funds being taken
away.
But I do think that we shouldexpect them to look very closely
at how are funds being used, arethey in alignment with a lot of
the guidance that HHS has putout as it relates to their
policy priorities.
SPEAKER_01 (21:42):
Yeah, that's uh very, very well articulated.
Thank you, Emily.
I think you know that makes alot of sense.
Um you know, uh I think as westart, as we start to um
conceptualize what this willlook like over time, uh what is
today?
Uh we're in early January.
So for those who are listening,this is a pre-recorded podcast,
so please keep that in mind.
But we're in early January,we've got somewhere around 350
(22:05):
days left of this year, right?
Um we have seen one, we're oneyear into this administration
essentially, and we've seen alot of policy changes just in
the last year.
I'm sure that we couldanticipate a number of
additional changes in the comingyear.
Um, yet at the same time, weexpect you know midterm
elections coming up here thisfall.
(22:27):
So uh yet again, some additionalchanges potentially there.
Um what can we expect with withrespect to OB3 in light of all
of these anticipated uh changes,both with our you know
administration, perhaps themid-year elections and whatnot?
SPEAKER_02 (22:45):
Yeah, so I think OB3 is going to be a major point of
discussion in the midterms,right?
I think that this is, as far asRepublicans are concerned, their
major legislative accomplishmentof this Congress.
It was accomplished in the firstsix months of this Congress,
which is an extremely quick timeframe.
Uh, and I think they're veryeager to talk about the
(23:05):
successes that they perceive inthis bill, right?
I think extending the 2017 taxcuts was a huge legislative
accomplishment.
So that's going to be somethingthey're going to talk a lot
about on the campaign trail,especially since that's
something that's difficult toexplain, right?
It's not a new tax cut and it'sa it's an extension of an
existing tax cut.
So I think it's not somethingthat is inherently understood by
(23:29):
folks when you're on thecampaign trail as opposed to
maybe a new tax cut.
So that's going to be somethingwhere I think they're going to
spend a lot of focus.
I think on the healthcareprovisions, they're going to
talk a lot about waste fraud andabuse and trying to root out
waste fraud and abuse.
That's a common theme we've seenwith a lot of, you know, kind of
more recent news about fraudinvestigations in various states
(23:49):
in their Medicaid programs andother programs.
So that's something that I thinkthey're going to draw that
parallel to say a lot of thechanges that they they made in
this bill, particularly as itrelates to work requirements,
were an effort to look at waste,fraud, and abuse and try to, you
know, minimize the use offederal taxpayer dollars.
(24:10):
So that's something I thinkRepublicans will focus on.
Certainly, Democrats are alsogoing to focus on OB3 because
while none of them voted for it,there are a lot of unpopular
policies in their constituenciesin that bill.
And so they're going to talkabout some of the cuts, some of
the impaired access, maybe somecoverage loss that's anticipated
(24:30):
because of these policies.
Uh, and certainly, you know,also talk about broader
healthcare issues like theexpiring and enhanced premium
tax credits for the ECA.
So there's going to be a lot ofhealthcare discussion on the
midterm trail.
We'll see how that goes.
Uh, I don't like toprognosticate anymore.
Uh, it's very hard to predict,but we'll see how the midterms
(24:51):
go.
I think if there is asignificant shift in Congress,
if Republicans lose the House orthe Senate, um, it looks maybe
more likely that they would losethe House than the Senate.
Uh, but if if there is a flipand Democrats do control either
the House or the Senate, I wouldanticipate they would look at
OB3 and say, are there areaswhere we could roll some of this
(25:15):
back?
Are there areas where we canmake changes?
I think the most likely of thosewould probably be delaying the
implementation of certainprovisions, right?
So maybe instead of things goinginto effect in 28, maybe it's
29, maybe it's 30, maybe it'sgiving states some more time to
think about the gap in fundingthat they're going to experience
when these uh policy changestake effect.
(25:38):
Uh, I also think that there'ssome discussion about um, you
know, what the Senate might do.
I think certainly the Housewould be on board with that.
There are a number of Republicansenators that were concerned
about their votes on this bill,who also might be open even if,
you know, the Republicans stillcontrol the Senate.
Uh, as we've seen with theadvanced premium tax credits
(26:00):
discussion, there's apossibility for some
bipartisanship there uh ifthere's concerns about, you
know, the real impact of thecuts and they're getting closer.
So I think there's certainlysome opportunity here, even if
Trump is still the president,uh, to look at are there some
changes we can make around themargins um to lessen the impact
(26:21):
of this of this legislation.
Uh lastly, I'll just say thisyear, 2026, is gonna be a big
year for rulemaking.
Uh, as I mentioned, statedirected payments, provider
taxes, work requirements, CMShas released initial guidance.
Uh, they have not yet releasedformal rulemaking on any of
those pieces.
So we're expecting that to comethis year.
(26:42):
There's gonna be a lot ofopportunity for notice and
comment.
Uh, and so a lot of regs to readthrough, a lot of implementation
deadlines to kind of analyze,uh, and kind of see, okay, how
is CMS interpreting whatCongress passed?
And you know, are there ways totweak that implementation in a
way that could be morefavorable?
So a lot to come this year.
SPEAKER_01 (27:03):
A lot to come, a lot to keep you busy, never a dull
moment.
Um, so that's a very, veryhelpful conversation, very
enlightening.
Thank you so much, Emily.
Um, I think it was a great topicfor our first episode of AHLA's
top 10 podcasts.
So we greatly appreciate youjoining us today, and thank you
to the AHLA Hospitals and HealthSystems Practice Group and AHLA
(27:27):
for making this podcastpossible.
Uh, and we we greatly appreciatethe time.
Thank you so much.
Take care.
You too.
SPEAKER_00 (27:40):
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daily podcast.
Welcome to AHLA's annual Top 10 Series, where we
discuss the major health lawtrends and developments of 2026.
Learn more about AHLA atamericanhealthlaw.org.
SPEAKER_01 (00:16):
Hello and welcome to episode one of AHLA's 2026 Top
10 Podcast Series.
My name is Jackie Papish.
I'm a partner at Barnes andThornburg in Washington, D.C.,
and vice chair of AHLA'shospitals and health systems
practice group, and I'll be yourmoderator today.
I'm joined here by Emily Felder,shareholder at Brownstein High
Barber Shrek.
(00:37):
Emily is the author of therecently published AHLA
Connections article titledImpacts of the One Big Beautiful
Bill Act, Implementation andReduced Federal Health Care
Spending, which will serve as abasis for our discussion today.
Emily, thank you so much forbeing here.
Can you take a couple of minutesjust to tell us a little bit
about yourself?
SPEAKER_02 (00:54):
Absolutely.
Thank you so much, Jackie, forhaving me.
I'm a shareholder at Brownsteinand I chair the health care
policy group.
I started my career on the Hillworking on healthcare policy
issues most recently for theEnergy and Commerce Committee,
and then served at CMS, where Iwas the director of the Office
of Legislation.
So I was the chief liaisonbetween CMS and the Hill.
Now at Brownstein, I representhealthcare companies before
(01:18):
federal agencies and beforeCongress, advising them on
healthcare policy issues thatimpact their companies.
So great to be here with youtoday.
SPEAKER_01 (01:25):
Thanks so much, Emily.
Why don't we go ahead and setthe stage for our listeners
here?
We're talking about today anarticle that you authored that
centers on the one big beautifulbill act.
Or as some might refer to it, Ithink we've previously discussed
OB3.
Can you please give ourlisteners just a little bit of a
baseline as to what the bill isabout and maybe what some can
(01:45):
what are some considerationsthat are at play with respect to
it?
SPEAKER_02 (01:50):
Absolutely.
I think it's important toremember as a threshold matter
that this was a bill that waspassed with only Republican
votes.
It's a reconciliation bill,which means it can pass the
House and the Senate with onlyRepublican votes if those
parties are in power.
And so it really reflects thepresident's priorities,
congressional Republicanpriorities, but not the intent
(02:13):
of the entire Congress.
And so when you think aboutthat, uh the driving factor of
this bill was to extendPresident Trump's 2017 tax cuts.
So the Tax Cuts and Jobs Actthat passed during his first
term, those tax cuts were up toexpire at the end of last year.
And the president wanted avehicle to extend those tax
(02:34):
cuts.
In order to do that, they neededto cut a lot of federal funding
to pay for those tax cuts.
So while this bill has hugehealth care policy implications
and huge health care cuts, uh,it really isn't a health care
policy bill.
It was a tax bill that needed todraw in Medicaid and other
federal health programs to beable to pay for continuing those
(02:58):
tax cuts.
So that's important because itreally wasn't policy driven.
Um it is an entire recalibrationof the federal-state partnership
with Medicaid.
It focuses a lot on decreasingfederal funds to states to pay
for programs that have reallyincreased in funding and access
(03:19):
and coverage over the last 10 to20 years.
And I think that the thecongressional estimates are
about a trillion dollars over 10years will be cut from the
Medicaid program.
Um so I think there's going tobe a lot of political
implications in the midterms,and we can talk about that in a
little bit.
Uh, but certainly providers,large healthcare systems,
(03:41):
states, uh, beneficiary groupsare grappling with how are we
going to change uh the way thatwe interact with the federal
government over a relativelyshort implementation period?
SPEAKER_01 (03:53):
Now, a couple of the things that you mentioned uh in
your article include um uhstate-directed payments and
these provider tax credits.
So, for those of our listeners,maybe who aren't as familiar or
as steeped in the language ofthe bill and the implementation
of the bill, can we take acouple of minutes and just touch
on those two components so thatfolks kind of understand what uh
(04:14):
what those are exactly and alsowhat's the impact of those and
how might that impact bothproviders and beneficiaries
alike?
SPEAKER_02 (04:23):
Absolutely.
So the state directed paymentsand the provider tax piece of
the bill are where the bulk ofthe savings come from.
So when you hear about thetrillion dollar cut over 10
years for Medicaid, most of thatis coming through the changes to
state directed payments andprovider taxes.
So starting with the providertaxes, these are uh provisions
(04:45):
that allow states to taxhospitals, you know, large
providers, uh up to 6% of theirpatient revenue.
And from that, they can drawdown additional federal savings.
So if the Medicaid program is astate federal partnership or the
state pitches in a certainamount of dollars, and the
federal government matches that,these provider taxes are an
(05:08):
additional way for states todraw down dollars and allow the
federal government to matchthat.
So it's been capped at 6%.
Um, you know, what this billdoes is to say that 6% threshold
is going to get a lot smaller.
That 6% threshold is going to goto 3.5% starting in 2028.
(05:29):
So nothing will change for thefor the interim period, but in
2028, they're going to reducethat threshold by 0.5% until
it's to 3.5%.
So that's a significant changein how many additional sort of
supplemental dollars states candraw down from the federal
government.
It's important to note this onlyapplies to the expansion states.
(05:51):
So 41 states expanded Medicaidafter the Affordable Care Act
allowed Medicaid to apply toable-bodied adults.
So those 41 states will havethis change.
For the nine states or so thatdid not expand Medicaid, they
can continue that 6% threshold.
(06:12):
So it's really a way for uhRepublican lawmakers to
acknowledge that states thathave expanded Medicaid under the
ACA are drawing down morefederal dollars than their
counterparts that did not expandMedicaid.
For the state directed payments,that's a more recent funding
(06:32):
mechanism that uh allows statesto charge NCOs a little bit more
so that the Medicaid paymentsare closer to Medicare rates or
even the average commercialrate.
So to say, you know, Medicaidrates are typically much lower
than Medicare or commercial.
And so this is a way to getproviders to pay, or sorry,
(06:54):
rather, plans to pay more todraw down additional federal
dollars.
Uh those state directedpayments, like I said, have been
cropping up more in the last 10or so years and have really
increased so that you see someMedicaid providers getting paid
closer to the commercial rate.
So what Congress did is to say,we don't think Medicaid should
(07:16):
get the commercial rate.
We think they should get closerto Medicare.
So they're capping those ratesat Medicare rates.
And again, the expansion statesare treated a little differently
than the non-expansion states.
The expansion states are cappedat 100% of the Medicare rate.
So now you can only get paidthat Medicare rate, uh, not the
commercial, and thenon-expansion states can get up
(07:38):
to 110% of Medicare.
Uh, but together, you know, uhthese provider taxes and state
directed payment changes umaccount for the majority of
those Medicaid savings.
So it's pretty significant.
I think provider taxes, thosechanges are about 700 million or
700 billion rather over 10years, and the state directed
(08:01):
payments changes are about 150billion in savings over 10
years.
SPEAKER_01 (08:07):
Those are some really big numbers.
Um not really that long of atime period.
Um, I mean, what does thatreally uh mean?
Or I guess sort of in yourexperience in dealing with um,
you know, the OB3 since uh itsadoption last year, I mean, what
does that really mean for theproviders who might have you
know big um populations that areMedicaid beneficiaries?
SPEAKER_02 (08:30):
Yeah, you know, states are going to figure out,
they're gonna have to figure outhow to fund Medicaid with
significantly less federal moneycoming in.
I think there's a lot of concernabout access to services.
Certainly, states are going tohave to decrease the um amount
of services that they provide ifthey're going to have these
(08:51):
significant cuts.
I also think providers are gonnabe thinking about what we can do
to make up for this change uh inreimbursement because Medicaid
typically does have very lowreimbursement levels.
Um are there service lines thatthey can't provide?
Are there areas they're notgoing to be able to provide
services to?
(09:11):
Uh, so it's going to be reallychallenging.
I think that, you know, onething we heard over and over
from Congress during this timeperiod is the intention was to
look at, quote, waste fraud andabuse.
The intention was also not toimpact children, because we have
to remember the Medicaidpopulation is about 50% kids.
(09:33):
Uh, and so while it has grownsignificantly, most of that
growth has been with adultpopulations.
So a lot of these changes weresupposed to emphasize changes
that would impact thoseexpansion states, the adult
population.
But certainly when you'relooking at this significant of a
cut, there are concerns aboutimplications to children's
(09:55):
hospitals, where if you have a50%, 60%, 70% of the children
going to a children's hospitalare on Medicaid, those impacts
are going to not only hit thestate, but the provider and kind
of what access points kids aregoing to be able to reach as
well.
Um, so I think there's going tobe a lot of impacts throughout
the program, not just to thatone specific able-bodied
(10:18):
population that Congress wasintending to impact.
SPEAKER_01 (10:22):
Right, right, understood.
Um, well, as for sort of theable-bodied population, we know
one of the biggest components ofum the OB3 that we've seen come
through, and one that's notparticularly new, a new concept
or surprise necessarily relatesto the work requirements.
Um, can you help us justunderstand a little bit more
about what the work requirementsactually are, um, you know, why
(10:46):
we're seeing their inclusionhere in OB3, um, and just you
know, simply like how how the uhthe implementation of the work
requirements might affect someof the key stakeholders uh here
in the in the healthcareindustry.
SPEAKER_02 (10:58):
Yeah, absolutely.
So the work requirements aregoing to be implemented really
quickly.
As you mentioned, you know,state directed payments and
provider taxes, those are large,large changes, but they're not
going to go into effect reallytill 28.
But work requirements aresupposed to start at the end of
this year, and that wassomething that was heavily
negotiated.
A lot of Republicans who believeheavily in some sort of skin in
(11:22):
the game for beneficiaries whoare uh taking part in the
Medicaid program were very uhforceful about wanting to get
that done as soon as possible.
Uh, and we've seen states likeGeorgia, they have their
Pathways to Coverage programwhere they have implemented a
work requirement for Medicaidfor several years now.
Um and we expect CMS toimplement this pretty quickly.
(11:45):
They had guidance out late lastyear.
Uh essentially, it requiresanyone who is an able-bodied
adult without dependence.
So it excludes, you know, folksthat have dependent children or
other sort of family membersthat are dependent on them.
Uh but if you are required toparticipate in this program, you
must show that you've engaged insome sort of community
(12:07):
engagement requirement for 80hours a month.
And so that could be school,that that can be work, that can
be volunteerism, job training.
There's a whole host ofactivities.
But really, I think the concernthat states have is the
reporting piece, right?
Making sure that everyindividual who's enrolled in
Medicaid, one, knowing whetherthey're eligible or not for the
(12:30):
program or required toparticipate or not, but then
also accounting for andattesting to these activities on
a routine basis will bechallenging.
And I think Georgia's seen thatbear out, where the cost of
reporting, um, the cost ofmaintaining that attestation is
very challenging over time.
Um, I would say CMS hasacknowledged this, right?
(12:52):
They've said this will bechallenging.
This is an administrativechallenge for states.
This is going to be a challengefor beneficiaries.
Um, and and they've invested andsort of thought a lot about AI
tools and tech and what they cando to ensure that this goes
well.
Uh, but I think the concern isthe cost and the admin cost of
setting up these systems isgoing to outweigh, you know,
(13:14):
maybe individuals who uh decide,okay, my Medicare coverage is
not worth having to work or dothese attestations.
I think there's a lot of concernabout folks falling through the
cracks and trying to figure outhow to handle that before
implementation begins.
SPEAKER_01 (13:31):
Yeah, yeah.
I mean, just talking with you onthis very short podcast, I have
a lot of questions about, youknow, what does that
implementation really look likeacross the United States and
tracking and whatnot.
So it will be very interestingto see how that rolls out and
what sort of perhaps you knowheadaches are both at the state
level and the and the federallevel for you know programs that
(13:52):
are already, you know, somewhat,somewhat challenged, I would
say, in terms of administrativeuh um efforts.
So um, okay, well, the other bigum you know component of OB3
that I want to make sure wetouch on, and one that we've
seen a lot about in the news isthe rural health transformation
program.
Um and you know, a lot ofefforts by the states to get
(14:12):
things rolling with respect tothis program.
Um can you give us a little bitmore um color as to what the
program is about?
Um, and perhaps, you know, aswe've seen in the news, what are
some concerns about the rolloutof the program or you know,
other challenges I think thatthe states and providers within
those states who areparticipating in the program are
facing?
SPEAKER_02 (14:34):
Absolutely.
Uh, you know, it's interestinghow this program came about
during the negotiations on OB3.
There were a lot of concernsabout rural hospitals.
So a lot of concerns about, youknow, the funding cuts that we
discussed earlier.
How is that going to impactproviders across the country,
but most particularly ruralhospitals?
That's a constituency that a lotof Republicans are close to and
(14:58):
concerned about.
The sustainability, there'vebeen a ton of rural hospital
closures in the last decade.
Uh, how is rural health caregoing to handle this level of
impact when they're alreadydealing with very small margins?
Uh, so this rural healthtransformation fund was
Congress's attempt to answerthat question.
(15:18):
It gives$50 billion to statesover five years to invest in
rural health care.
Uh, you know, the bill itself isactually fairly expansive, and
you've seen CMS implement itthat way.
It's consistent with the statutesaying, you know, there's a
whole host of different thingsyou can use this money for.
Uh, you know, tech advancements,uh, EMS models, you know,
(15:42):
upgrades to uh AI, that sort ofthing.
Um, but really it's been knownas the rural hospital funding
program.
And so, you know, you saw a lotof senators have concerns about
how will this money be given outby the states.
CMS has implemented it extremelyquickly.
(16:02):
I mean, it was supposed to beimplemented for fiscal year 26.
Uh, the funding announcementswent out over the holidays.
Uh, and so they have moved veryquickly.
They set up a new rural healthoffice, they have a very
detailed funding announcement.
Um, and and the the funding wasallocated fairly equally among
(16:22):
the states.
Uh the law was written in a waywhere for some of the
discretionary funding, theycould have allotted it to a
small number of states, 15, 16.
Uh, but all 50 states got notonly the initial sort of
statutorily required funding,but they also got the additional
um subjective funding.
(16:43):
And so you saw taxes got themost at around 281 million.
And then I think New Jersey gotthe least, but there wasn't a
huge gap between what uh statesreceived.
So I think the concern here andsort of the push and pull is
going to be how do statesallocate these dollars?
(17:03):
Are they going to go primarilyto providers, primarily to rural
providers, or are they going togo to other entities that will
work with rural providers, uh,but may not do exactly what
rural uh healthcare providerswould do if they had the funding
themselves?
And so there's going to be apush and pull and so, you know,
uh and a lot of oversight, Ithink, by CMS to make sure that
(17:26):
states are keeping close to whatthey put in their applications.
Um, but it's a lot of money.
It's a lot of money to send outthe door over five years.
Uh, it's also a completely newprogram.
Uh states haven't seen thislevel of investment in rural
health care in a long time.
So I think CMS sees a lot ofpromise in trying to innovate,
(17:46):
trying to think of you know, newways to ensure access to care
and high quality care for ruralAmerica.
Uh, but I also think there couldbe some pitfalls there too.
SPEAKER_01 (17:58):
Yeah, we've um, you know, I just in my practice have
taken a look at what you knowthe rural hospitals um you know
health uh is is looking like interms of um uh over the coming
years, um, some of thedifficulties that they've been
uh uh facing.
And I think that this issomething that you know folks
are holding out hope will willhelp, obviously.
(18:19):
Um, but there are somesignificant, I think, concerns
about um closures over thecoming years with respect to
those rural hospitals andfiguring out ways to support
them, whether it's you knowdirect payments to the hospitals
themselves or perhaps maybe someinnovative solutions to help
support them.
Um I think you know the comingyears will tell sort of how how
(18:40):
that uh how that plays out, ofcourse.
Um we've seen some uh somearticles in the news about the
rollout of the funds um to thestates and whether the states uh
are implementing perhapspriorities in alignment uh or
efforts in alignment with um thepriorities of this
administration and perhaps uhyou know situations in which
(19:04):
funds could be withheld if umyou know certain uh states are
not implementing policies inalignment with certain
priorities.
Um I'm not sure if you can speaka little bit to that or or what
you've seen in your practice andand what states might be um you
know might be expecting uh asrelates to those concerns.
SPEAKER_02 (19:23):
Yeah, absolutely.
And I think this administrationhas not been shy about sort of
their viewpoint that federaldollars should be spent in
alignment with the president'spolicy goals and the HHS
secretary's policy goals.
And we saw that a lot in thefirst few months of the
administration where there weresignificant freezes on federal
grant dollars, federal researchdollars, as they went through a
(19:47):
rigorous review of what theyfelt federal dollars should be
spent on.
And there is a lot of latitude.
The administration has a lot oflatitude on deciding how to
spend those dollars.
Um, you know.
In this case, I think as itrelates to this grant process,
CMS is allowed to reduce orwithhold funds if the um
(20:10):
activities that they're spendingthe funds on are not in
alignment with what was in theapplication.
So they've said we intend to dorigorous oversight.
We intend to look at what didthe state apply for.
We awarded these dollars.
Are they spending the dollars inalignment with what they said
they would do in theapplication?
And so I think that as long asstates are carrying out their uh
(20:35):
duties and sort of using thefunds for what they said they
would use them on, I think thatis, you know, something that
they don't have to worry about areduction of funds or or um you
know funds being taken away.
I do think that um, you know, weshould though expect this
administration to have arigorous oversight process, look
(20:56):
very closely at how states arespending these dollars.
Uh as I mentioned earlier, CMSset up an entirely new office on
rural health transformation uhthat is set up to review these
applications, review the use ofthe funds.
Um, and so, you know, I don'tthink that an unrelated policy
that a state uh pursued as itrelates to something outside the
(21:21):
scope of this program wouldresult in funds being taken
away.
But I do think that we shouldexpect them to look very closely
at how are funds being used, arethey in alignment with a lot of
the guidance that HHS has putout as it relates to their
policy priorities.
SPEAKER_01 (21:42):
Yeah, that's uh very, very well articulated.
Thank you, Emily.
I think you know that makes alot of sense.
Um you know, uh I think as westart, as we start to um
conceptualize what this willlook like over time, uh what is
today?
Uh we're in early January.
So for those who are listening,this is a pre-recorded podcast,
so please keep that in mind.
But we're in early January,we've got somewhere around 350
(22:05):
days left of this year, right?
Um we have seen one, we're oneyear into this administration
essentially, and we've seen alot of policy changes just in
the last year.
I'm sure that we couldanticipate a number of
additional changes in the comingyear.
Um, yet at the same time, weexpect you know midterm
elections coming up here thisfall.
(22:27):
So uh yet again, some additionalchanges potentially there.
Um what can we expect with withrespect to OB3 in light of all
of these anticipated uh changes,both with our you know
administration, perhaps themid-year elections and whatnot?
SPEAKER_02 (22:45):
Yeah, so I think OB3 is going to be a major point of
discussion in the midterms,right?
I think that this is, as far asRepublicans are concerned, their
major legislative accomplishmentof this Congress.
It was accomplished in the firstsix months of this Congress,
which is an extremely quick timeframe.
Uh, and I think they're veryeager to talk about the
(23:05):
successes that they perceive inthis bill, right?
I think extending the 2017 taxcuts was a huge legislative
accomplishment.
So that's going to be somethingthey're going to talk a lot
about on the campaign trail,especially since that's
something that's difficult toexplain, right?
It's not a new tax cut and it'sa it's an extension of an
existing tax cut.
So I think it's not somethingthat is inherently understood by
(23:29):
folks when you're on thecampaign trail as opposed to
maybe a new tax cut.
So that's going to be somethingwhere I think they're going to
spend a lot of focus.
I think on the healthcareprovisions, they're going to
talk a lot about waste fraud andabuse and trying to root out
waste fraud and abuse.
That's a common theme we've seenwith a lot of, you know, kind of
more recent news about fraudinvestigations in various states
(23:49):
in their Medicaid programs andother programs.
So that's something that I thinkthey're going to draw that
parallel to say a lot of thechanges that they they made in
this bill, particularly as itrelates to work requirements,
were an effort to look at waste,fraud, and abuse and try to, you
know, minimize the use offederal taxpayer dollars.
(24:10):
So that's something I thinkRepublicans will focus on.
Certainly, Democrats are alsogoing to focus on OB3 because
while none of them voted for it,there are a lot of unpopular
policies in their constituenciesin that bill.
And so they're going to talkabout some of the cuts, some of
the impaired access, maybe somecoverage loss that's anticipated
(24:30):
because of these policies.
Uh, and certainly, you know,also talk about broader
healthcare issues like theexpiring and enhanced premium
tax credits for the ECA.
So there's going to be a lot ofhealthcare discussion on the
midterm trail.
We'll see how that goes.
Uh, I don't like toprognosticate anymore.
Uh, it's very hard to predict,but we'll see how the midterms
(24:51):
go.
I think if there is asignificant shift in Congress,
if Republicans lose the House orthe Senate, um, it looks maybe
more likely that they would losethe House than the Senate.
Uh, but if if there is a flipand Democrats do control either
the House or the Senate, I wouldanticipate they would look at
OB3 and say, are there areaswhere we could roll some of this
(25:15):
back?
Are there areas where we canmake changes?
I think the most likely of thosewould probably be delaying the
implementation of certainprovisions, right?
So maybe instead of things goinginto effect in 28, maybe it's
29, maybe it's 30, maybe it'sgiving states some more time to
think about the gap in fundingthat they're going to experience
when these uh policy changestake effect.
(25:38):
Uh, I also think that there'ssome discussion about um, you
know, what the Senate might do.
I think certainly the Housewould be on board with that.
There are a number of Republicansenators that were concerned
about their votes on this bill,who also might be open even if,
you know, the Republicans stillcontrol the Senate.
Uh, as we've seen with theadvanced premium tax credits
(26:00):
discussion, there's apossibility for some
bipartisanship there uh ifthere's concerns about, you
know, the real impact of thecuts and they're getting closer.
So I think there's certainlysome opportunity here, even if
Trump is still the president,uh, to look at are there some
changes we can make around themargins um to lessen the impact
(26:21):
of this of this legislation.
Uh lastly, I'll just say thisyear, 2026, is gonna be a big
year for rulemaking.
Uh, as I mentioned, statedirected payments, provider
taxes, work requirements, CMShas released initial guidance.
Uh, they have not yet releasedformal rulemaking on any of
those pieces.
So we're expecting that to comethis year.
(26:42):
There's gonna be a lot ofopportunity for notice and
comment.
Uh, and so a lot of regs to readthrough, a lot of implementation
deadlines to kind of analyze,uh, and kind of see, okay, how
is CMS interpreting whatCongress passed?
And you know, are there ways totweak that implementation in a
way that could be morefavorable?
So a lot to come this year.
SPEAKER_01 (27:03):
A lot to come, a lot to keep you busy, never a dull
moment.
Um, so that's a very, veryhelpful conversation, very
enlightening.
Thank you so much, Emily.
Um, I think it was a great topicfor our first episode of AHLA's
top 10 podcasts.
So we greatly appreciate youjoining us today, and thank you
to the AHLA Hospitals and HealthSystems Practice Group and AHLA
(27:27):
for making this podcastpossible.
Uh, and we we greatly appreciatethe time.
Thank you so much.
Take care.
You too.
SPEAKER_00 (27:40):
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