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Julie Rovner
KHN

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Julie Rovner is chief Washington correspondent and host of KHN’s weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

Both Republicans and Democrats in Congress reacted with compassion to the news that Sen. John Fetterman (D-Pa.) has checked himself into Walter Reed National Military Medical Center for treatment of clinical depression. The reaction is a far cry from what it would have been 20 or even 10 years ago, as more politicians from both parties are willing to admit they are humans with human frailties.

Meanwhile, former South Carolina governor and GOP presidential candidate Nikki Haley is pushing “competency” tests for politicians over age 75. She has not specified, however, who would determine what the test should include and who would decide if politicians pass or fail.

This week’s panelists are Julie Rovner of KHN, Sarah Karlin-Smith of the Pink Sheet, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Rachel Roubein of The Washington Post.

Panelists

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Among the takeaways from this week’s episode:

• Acknowledging a mental health disorder could spell doom for a politician’s career in the past, but rather than raising questions about his fitness to serve, Sen. John Fetterman’s decision to make his depression diagnosis and treatment public raises the possibility that personal experiences with the health system could make lawmakers better representatives.
• In Medicare news, Sen. Rick Scott (R-Fla.) dropped Medicare and Social Security from his proposal to require that every federal program be specifically renewed every five years. Scott’s plan has been hammered by Democrats after President Joe Biden criticized it this month in his State of the Union address.
• Medicare is not politically “untouchable,” though. Two Biden administration proposals seek to rein in the high cost of the popular Medicare Advantage program. Those are already proving controversial as well, particularly among Medicare beneficiaries who like the additional benefits that often come with the private-sector plans.
• New studies on the effectiveness of ivermectin and mask use are drawing attention to pandemic preparedness. The study of ivermectin revealed that the drug is not effective against the covid-19 virus even in higher doses, raising the question about how far researchers must go to convince skeptics fed misinformation about using the drug to treat covid. Also, a new analysis of studies on mask use leaned on pre-pandemic studies, potentially undermining mask recommendations for future health crises.
• On the abortion front, abortion rights supporters in Ohio are pushing for a ballot measure enshrining access to the procedure in its state constitution, while a lawyer in Florida is making an unusual “personhood” argument to advocate for a pregnant woman to be released from jail.

Plus for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:

Julie Rovner: Stat’s “Current Treatments for Cramps Aren’t Cutting It. Why Aren’t There Better Options?” by Calli McMurray

Joanne Kenen: The Atlantic’s “Eagles Are Falling, Bears Are Going Blind,” by Katherine J. Wu

Rachel Roubein: The Washington Post’s “Her Baby Has a Deadly Diagnosis. Her Florida Doctors Refused an Abortion,” by Frances Stead Sellers

Sarah Karlin-Smith: DCist’s “Locals Who Don’t Speak English Need Medical Translators, but Some Say They Don’t Always Get the Service,” by Amanda Michelle Gomez and Hector Alejandro Arzate

Also mentioned in this week’s podcast:

• The Hill’s “Nikki Haley: Bernie Sanders Is ‘Exactly the Reason’ Mental Competency Tests Are Needed,” by Niall Stanage
• USA Today’s “Idaho Bill Would Criminalize Giving mRNA Vaccines — The Tech Used in Popular COVID Vaccines,” by Thao Nguyen
• The Washington Post’s “Twenty Governors Are Forming a New Coalition to Support Abortion Rights,” by Rachel Roubein with McKenzie Beard
• The Washington Post’s “Fla. Lawyer Argues Pregnant Inmate’s Fetus Is Being Illegally Detained,” by Kyle Melnick

click to open the transcript

Transcript: Senators Have Mental Health Crises, Too

KHN’s ‘What the Health?’Episode Title: Senators Have Mental Crises, TooEpisode Number: 286Published: Feb. 23, 2023

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Feb. 23, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Rachel Roubein of The Washington Post.

Rachel Roubein: Hi. Thanks for having me.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: And Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Joanne Kenen: Hi, everybody.

Rovner: So, no interview this week, but lots of interesting news, even with Congress in recess and the president out of the country. So we will get right to it. We’re going to start this week with mental health. No, not the mental health of the population, although that remains a very large problem, but specifically the mental health of politicians. I am old enough to remember when a politician admitting to having been treated for any mental health problem basically disqualified them from holding higher office. You young people go Google Tom Eagleton. Now we have Sen. John Fetterman [D-Pa.], who made headlines while campaigning during his stroke recovery, checking himself into Walter Reed for major depression treatment. And the reaction from his colleagues on both sides of the aisle has been unusually compassionate for political Washington. Have we turned a corner here on admitting to having problems not meaning incapable of serving or working?

Karlin-Smith: It’s obviously getting better, but I think as we saw with Fetterman’s coverage during the campaign, it was far from perfect. And I think there was some dissatisfaction that his coverage was in many … sometimes unfair in how his stroke and his stroke recovery and his needs for accommodations were presented in the media. But I do think we are shifting at least somewhat from thinking about, Does this situation make a person fit to serve? to thinking about, OK, what does this person’s experience navigating the health care system perhaps provide that might actually make them a better representative, or understand their constituents’ needs in navigating the health care system, which is a big part of our political agenda?

Kenen: There are very few times when Congress makes nice. I think on rare occasions mental health has done it. I can think of the fight for mental parity. It was a bipartisan pair: Sen. Pete Domenici [R-N.M.] had a daughter with schizophrenia, and Sen. Paul Wellstone [D-Minn.] had … what, was it … a brother?

Rovner: I think it was a sibling, yeah.

Kenen: … with a severe mental illness. I no longer remember whether it was schizophrenia or another severe mental illness. And they teamed up to get mental health parity, which they didn’t get all the way. And there are still gaps, but they got the first, and it took years.

Rovner: And they were a very unlike pair, Domenici was …

Kenen: They were a very unlikely couple.

Rovner: a very conservative Republican. Wellstone was a very liberal Democrat.

Kenen: And their personalities were completely like, you know, one was a kind but grumpy person and one was the teddy bear. And they were a very odd couple in every possible way. And it didn’t make lawmakers talk about themselves at that point, but they did get more open about their family. About 10 or 15 years later, there was a senator’s son died by suicide and he was very open about it. It was really one of the most remarkable moments I’ve ever seen on the Hill, because other people started getting up and talking about loved ones who had died by suicide, including [Sen.] Don Nickles [R-Okla.], who was very conservative, who had never spoken about it before. And it was Sen. Gordon Smith [R-Ore.] whose son had died at the time. And he tried to put it to use and got mental health legislation for college. So these were like, you know, 10 or 15 years apart. But Congress, they don’t treat each other very well. It’s not just politics. They’re often quite nasty across party lines. So this was sort of like the third moment I’ve seen where a little bit of compassion and identification came out. Is it a kumbaya turnaround? No, but it’s good to see kindness, not “he should resign this moment.” I mean, the response was pretty human and humane.

Rovner: And we also had the unique moment with Patrick Kennedy, who was then in the House, son of Sen. Ted Kennedy, who was still in the Senate. And Patrick Kennedy, of course, had had substance abuse issues in addition to his mental health issues. And he actually championed through what turned into the final realization of the mental health parity that Domenici and Wellstone had started. So, I mean, to Sarah’s point, I think, sometimes if the person experiences it themselves, they may be even more able to navigate through to help other people, so …

Kenen: You’re not immune from mental illness if you’re a lawmaker and neither is your family. And there are a number of very sad stories and there are other lawmakers who have lost relatives to suicide. So there’s this additional connection between stroke and depression that I think got a little bit of attention here, because that’s also a thing.

Rovner: Well, all right, then again, it is not all sunshine and roses on the political mental health front. Former South Carolina Republican Gov. Nikki Haley, who’s now running for president, is proposing a mental competency test for politicians over the age of 75. That would, of course, include both Donald Trump and Joe Biden. But this week, Haley extended her proposed mental competency test to the Senate, where there are dozens of members over the age of 75. She specifically called out 81-year-old Bernie Sanders after he called her proposal ageism. Now, it’s pretty clear that Haley is using this to keep herself in the news, and it’s working. But could we actually see mental competency tests rolled out at some point? And who would decide what constitutes competency in someone who’s getting older?

Kenen: Or younger.

Rovner: Or younger, yeah.

Karlin-Smith: Wait, has Joanne solved the aging [mystery]? I think … what Julie said, in terms of who would decide, I think that’s where it gets really dicey. I think, first of all, if you’re going to deal with this, there seems no way you can make it based on age, right? Because competency is not necessarily tied with age. But I think, ethically, I’m not sure our society has any fair way to really determine … and it would just become such a political football that I don’t think anybody wants to deal with figuring out how to do that. Obviously, you don’t want somebody, probably, in office who is not capable of doing the job to a point where they really can’t be productive. But again, as we’ve seen with these other health issues, you also don’t want to exclude people because they are not perfectly in some sort of heightened state of being that, you know, all people are not perfect in capacity at every single moment and deal with struggles. So there’s this fine line, I think, that would be too difficult to sort of figure out how to do that.

Kenen: And you could be fine one day and not fine the next. If you have a disease [of] cognitive decline that’s gradual, you know, when do you pick it up? When do you define it? And then you can have something very sudden like a car crash, a stroke and any number of things that can cause cognitive damage immediately.

Rovner: Now, we didn’t know then, but we know now that Ronald Reagan had the first stages of dementia towards the end of his second term. Sorry, Rachel, you wanted to say something?

Roubein: We’ve seen careful reporting around — I think, about like the San Francisco Chronicle story last year — about [Sen.] Dianne Feinstein [D-Calif.], which essentially looked at this. There were some questions around [Sen.] Thad Cochran [R-Miss.], as well. And it’s something journalists have looked at pretty carefully by talking to other senators and those who know the lawmakers well to see how they are essentially.

Kenen: And Strom Thurmond, who was, to a layperson, like all the reporters covering the Hill, it was clear that … he served until he was, what, 98 or something? You know, it was very clear that half the time he was having struggles.

Rovner: And I remember so many times that there would be the very old senators on the floor who would basically be napping on the floor of the Senate.

Kenen: That might be a sign of mental health.

Rovner: Yeah, that’s true. But napping because they couldn’t stay awake, not just curling up for a nap. But, I mean, it’s an interesting discussion. You know, as I say, I’m pretty sure that Nikki Haley is doing it to try and poke at both Biden and Trump and keep herself in the news. And, as I say, it’s working.

Kenen: But I think there’s a question of fitness that I think has come up over and over again. I mean, Paul Tsongas was running for president, what, the Nineties and said he was over his lymphoma or luekemia.

Rovner: I think he had lymphoma. Yeah.

Kenen: He said he was fine, and it turns out he wasn’t. And he actually died quite young, quite soon after not getting the nomination. So there are legitimate issues of fitness, mental and physical, for the presidency. I would think that there’s a different standard for senators just because you’re one out of 100 instead of one out of one. I think there is a tradition, which Trump didn’t really follow. There is a tradition of disclosure, but it’s not foolproof. And Trump certainly just had — remember, he had that letter from his doctor who also didn’t live much longer after that, saying he was the most fit president in history, Like, just don’t get me started, but basically said he was a greek god. So there are legitimate concerns about fitness, but it’s hard to figure out. I mean, it was really hard to figure out in Congress how to do that.

Rovner: Yeah, I think the “who decides” what will be the most difficult part of that, which is probably why they haven’t done it yet. All right. Well, turning to policy, two weeks ago, we talked about the coming Medicare wars with President Biden taking aim at Republicans in his State of the Union speech, and particularly, although he didn’t name him, with Florida Sen. Rick Scott, who last year as head of the Republican Senate Campaign Committee, released a plan that would have sunset every federal program, including Medicare and Social Security, every five years. And they would cease to be unless Congress re-approved them. We know how much trouble Congress has doing anything. This horrified a whole lot of Republicans, who not only have been on the wrong end politically of threatening Medicare — and paid a price for it at the ballot box — but who themselves have used it as a weapon on Democrats. See my column from last week, which I will put in the show notes. So now, kind of predictably, Sen. Scott has succumbed and proposed a new plan that would sunset every federal program except Medicare and Social Security. But I imagine that’s not going to end this particular political fight, right? The Democrats seem to have become a dog with a bone on this.

Roubein: Yeah. And it’s known as “Mediscare” for a reason, right? It’s something both political parties use and try and weaponize. I mean, I think one of the really big questions for me when I kept on hearing this, like what? Cuts to Medicare, what does that actually mean in practice? Some experts said that it might simply mean slowing the rate of growth in the program compared to what it would have been, which doesn’t necessarily impact people’s benefits. It can; it depends how it’s done. But I mean, we’ve seen this political fight before. It happened during the Affordable Care Act and afterwards, the effect of cutting Medicare Advantage plan payments, etc., didn’t really make plans less generous. They continued to be more generous. So it’s something that we’ll continue to see Biden talk about because the administration thinks that it plays well among seniors.

Rovner: But even as Bernie Sanders pointed out this week, we’re going to have to deal with Medicare and Social Security eventually. They can’t continue on their current path because they will both run out of money at some point unless something gets changed. But right now, it seems that both sides are much happier to use it as a cudgel than to actually sit down and figure out how to fix it.

Kenen: But one thing that’s interesting is that it wasn’t a big issue in the November elections. The Democrats late in the game tried to draw attention to the Rick Scott proposal. I almost wrote a piece how there was no discussion of Medicare for the first time in years. And just as I was starting to write it, they began talking about it a little bit. So I didn’t write it. But it never stuck. It wasn’t a major issue. And the one race where it really could have been would have been Wisconsin, because that was a tight Senate race — the Democrats really wanted to defeat Ron Johnson, who is to the right of Rick Scott on phasing out Medicare. He’s the only one who endorsed Scott and actually wanted to go further, and it didn’t even really stick there. So it’s sort of interesting that it’s now bubbling up. I mean, yes, we’re into 2024, but we’re not into 2024 the way we’re going to be into 2024. It’s sort of interesting to see that the Democrats are hitting this so far.

Rovner: No, I think that’s because of the debt ceiling.

Kenen: Right. But it’s supposedly off the table for the debt ceiling, which doesn’t mean, as Rachel just said, there are legitimate fiscal issues that Democrats and Republicans both acknowledge. They’re, crudely speaking, Democrats want to raise more money for them, and Republicans want to slow spending. That’s a that’s an oversimplification. But the rhetoric is always throwing Grandma off the cliff. Never Grandpa, always Grandma.

Rovner: Always Grandma.

Kenen: You know, actually, you can do things over a 20-year period. That’s what we did with Social Security. We did raise the age in a bipartisan fashion on Social Security 20 years … took like 20 years to phase it.

Rovner: And I would point out that the only person who really reacted to Rick Scott’s plan when it came out last February was, I think, a year ago this week, was Mitch McConnell.

Kenen: Yeah, he blew a gasket.

Rovner: But he immediately disavowed it. So Mitch McConnell knew what a problem it could turn into and kind of has now. So we have kind of the reverse sides in Medicare Advantage of the fight. That’s the private alternative to traditional Medicare. It’s the darling of Republicans, who touched off the current popularity of the program when they dramatically increased payments for it in 2003, which led to increased benefits and increased profits for insurance companies. They split those — that extra money between themselves and the beneficiaries. And, not surprisingly, increased popularity to the point where a majority of beneficiaries right now are in Medicare Advantage plans rather than traditional Medicare. On the other hand, these plans, which were originally supposed to cut overall Medicare costs, are instead proving more expensive than traditional Medicare. And Democrats would like to claw some of those profits back. But that looks about as likely as Republicans sunsetting Medicare, right? There’s just too many people who are too happy with their extra benefits.

Roubein: I guess we’ve seen two proposals from the administration this year which would change Medicare benefits. Then Republicans are trying to paint this as a cut but are saying it wouldn’t change benefits. But to change Medicare Advantage, one way …

Rovner: To change payments for Medicare Advantage.

Roubein: Yes, exactly. One which essentially would increase the government’s ability to audit plans and recover past overpayments and one which is the annual rate proposal. And there’s some aspects in there that Medicare Advantage plans are on a full-court lobbying press to say these are cuts which the administration is pushing back on really, really hard. So this is another microcosm of this Medicare scare tactics.

Rovner: And they’re all over TV already, commercials that probably don’t mean much to anybody if you’re not completely up on this fight of, like, “Congress is thinking about cutting Medicare Advantage.” No, really? I do laugh every time I see that ad.

Kenen: But, you know, Julie, you’re right that this began as a Republican cause, I mean, they had a similar program in the late ’90s that flopped and they revived it as Medicare Advantage. But it didn’t stay a Republican pet project for long. I mean, Democrats, starting with those in states with a lot of retirees — I’m thinking in Florida, who had Democratic senators at the time. I mean, they jumped on board, too, because people like … there are people who want to stay in traditional Medicare and there are people who jumped on to Medicare Advantage, which has certain advantages. It is less partisan than it began. It has always been more expensive than it was touted to be. And it’s now, we’re heading into 20 years since the legislation was passed, and nothing has really been done to change that trajectory, nothing significant. And I don’t think you’re going to see a major overhaul of it. There may be things that you can do [on] a bipartisan basis that nip. But if you’re nipping at that many billions of dollars, a nip as can be a lot of money.

Rovner: Yeah, that’s the thing about Medicare. Although I would point out also that the reason it flopped in the late 1990s is because Congress whacked the payments for it as part of the Balanced Budget Act. And as they gave the money back, it got more popular again because, lo and behold, extra money means extra benefits and people liked it. So its popularity has been definitely tied to how much the payments are that Congress has been willing to provide for it.

Kenen: And how they market and who they market to.

Rovner: Absolutely, which is a whole ’nother issue. But I want to do a covid check-in this week because it’s been a while. First, we have a study from Duke University published in this week’s Journal of the American Medical Association showing that using the deworming drug ivermectin, even at a higher dose and for a longer time, still doesn’t work against covid. This was a decent-sized, double-blind, randomized, controlled trial over nine months. Why is this such a persistent desire of so many people and even doctors to use this drug that clearly doesn’t work?

Karlin-Smith: You know, there’s been a lot of misinformation out there, particularly spread by the right and people that have not just, in general, trusted the government during covid and felt like this drug worked. And for whatever reason, they were being convinced that there was a government effort to kind of repress that. What’s interesting to point out, you know, you mentioned the trial being run at Duke. This was actually a part of a big NIH [National Institutes of Health] study to study various drugs for covid. So even NIH has been willing to actually do the research and to prove whether the drug does or doesn’t work. One of the issues this raises is this was one of many studies at this point that has shown the drug doesn’t work. In this one they even were willing to test, OK, a lower dose didn’t work. Let’s test a higher dose. Again, it fails. And the question becomes is, is there any amount of data or trials that can convince people who have, again, gone through this process where they’ve been convinced by this misinformation to believe it works and that the government is lying to them? Is there any way to convince them, with this type of evidence, it doesn’t work? And then what are the ethics of doing this research on people? Because you’re wasting government resources. You’re wasting resources in general. You’re wasting time, money. You’re giving people a drug in the trial when they could be getting another drug and that might actually work. So it’s really complicated because, again, I’m not sure you can convince the true ivermectin fans. I’m not sure there’s any amount of this type of scientific evidence that’s going to convince them that it doesn’t work for covid.

Rovner: But while we are talking about scientific studies about covid, a controversial meta-analysis from the esteemed Cochrane Review found basically no evidence that masks have done anything to prevent the spread of covid. But this is another study that seems to have been wildly misinterpreted. It didn’t find … what it looked like was not necessarily what we think. A lot of it turned out to be studies that were seeing whether flu, whether masks prevented against flu, rather than against covid. I mean, have we ended the whole idea of mask wearing and maybe not correctly?

Kenen: This was a meta-analysis for Cochrane, which is really basically … I mean, I think Sarah probably knows more about Cochrane than the rest of us, but their reviews are meaningful and taken seriously and they’re usually well done. The studies that they use in this meta-analysis didn’t ask the question that the headlines said it asked. And also, I mean, I don’t totally understand why they did it, because a) as Julie just pointed out, there was something like 78 studies, 76 of which were done before covid. So, you know, a) that’s a problem. And b), it didn’t actually measure who was wearing a mask. It was like, OK, you’re told to wear a mask or maybe you’re required to wear a mask if you’re working in a hospital while you’re in the hospital. But then you go out to a bar that night and you’re not wearing … I mean, it didn’t really look at the totality of whether people were actually wearing masks properly, consistently. And therefore, why use this flu data to answer questions about masking? And secondly, I also think it always is worth reminding people that, you know, no one ever said masks were the be-all and end-all. It was a component — you know, masking, handwashing, vaccination, distancing, testing, all the things that we didn’t do right. Ventilation … I mean, all that. There’s a long list of things we didn’t do right; masking was one of many. This is not going to help if we ever need masks for any disease again in the future. It did not advance this public health strategy — they call it, like, they like to talk about Swiss cheese, that any one step has holes in it. So you use a whole lot of steps and you don’t have any more holes in your Swiss cheese. It’s going to make it harder if we ever need them.

Rovner: Yeah. Well, notwithstanding scientific evidence now, we have two Republican state lawmakers in Idaho who have introduced a bill that would make any mRNA vaccines illegal to administer in the state, not just to people, but to, quote, “any mammal” with violators subject to jail time. And if I may read the subhead of the story about this … at the science website Ars Technica, quote, “It’s not clear if the two lawmakers know what messenger RNA is exactly.” In a normal world, I would say this is just silly and it couldn’t pass. But we’re not in a normal world anymore, right? I mean, we could actually see Idaho ban mRNA technology, which is used, going to be used for a lot more than covid.

Karlin-Smith: So I think the thing that really interests me about reading about this, and I’d be interested to hear what legal scholars think about this, but I was wondering if there’s a parallel here between this and what’s going on with the abortion pill in Republican states and what the courts may do with that, because it seems to me like there’s probably should be some kind of federal preemption that would kick in here, which is that vaccines are regulated, approved by this technology, by the federal government. Yes, there’s some practice of medicine where states have control from the federal government. But this seems like a case where, and in the past, when states have tried to get into banning FDA-approved products in this way, courts … have pushed back and said, you can’t do this. And I would say, I don’t think this Idaho law would hold up if it gets passed. But now we have this issue going on with the abortion pill, and it seems like there could be this major challenge by the courts to FDA’s authority. So you do sort of wonder, is this another example of what could happen if this authority gets challenged by the states? And, like you said, we are in this different world where maybe three years ago I would say, well, you know, even if Idaho can pass this, of course, this isn’t going to come to practice. But I do wonder, as we’re watching some of these other legal challenges to FDA-approved technologies, what it could mean down the line.

Kenen: I mean, remember, it also … with ivermectin, there are state legislatures that have actually protected patients’ rights to get ivermectin.

Rovner: And doctors’ rights to provide it.

Kenen: Right. And I know more than half the states had legislation. I don’t know how many actually passed it. I don’t remember. But I mean, it was a significant number of states. So these are … all these things that we’re talking about are related — you know, who gets to decide based on what evidence or lack thereof.

Rovner: So if there’s a reason that I brought these three things up, because after all this, a federal judge in California has temporarily blocked enforcement of a new state law that would allow the state medical board to sanction doctors who spread false or misleading information about covid vaccines and treatments. One of the plaintiffs told The New York Times that the law is too vague, quote “Today’s quote-unquote, ‘misinformation’ is tomorrow’s standard of care, he said.” Which is absolutely true. So how should we go about combating medical misinformation? I mean, you know, sometimes people who sound wacky end up having the answer. You know, you don’t want to stop them, but you also don’t want people peddling stuff that clearly doesn’t work.

Kenen: In addition to state boards, there are large medical societies that are — I don’t know how far they’ve gone, but they have said that they will take action. I’m sure that any action they take either will or has already ended up in court. So there are multiple ways of getting at misinformation. But, you know, like Sarah said it really well, there are people who’ve made up their mind and nothing you do is going to stop them from believing that. And some of them have died because they believe the wrong people. So I don’t think we’re going to solve the misinformation problem on this podcast. Or even off — I don’t think the four of us …

Rovner: If only we could.

Kenen: Even if we were off the podcast! But it’s very complicated. I — a lot of my work right now is centered on that. The idea that courts and states are coming down on the wrong side, in terms of where the science stands right now, understanding that science can change and does change. I mean, whether another version of that law could get through the California courts, I mean, there are apparently some broad drafting problems with that law.

Rovner: It hasn’t been struck down yet. It’s just been temporarily blocked while the court process continues. We’ll see. All right. Well, let’s move on to abortion since we’ve been kind of nibbling around the edges. Rachel, you wrote about a group of abortion rights-supporting Democratic governors organizing to coordinate state responses to anti-abortion efforts. What could that do?

Roubein: Yeah, so it’s news this week. It’s called the Reproductive Freedom Alliance. And essentially the idea is so governors can have a forum to more rapidly collaborate, compare notes on things like executive orders that are aimed at expanding and protecting abortion bills, moving through the legislature, budgetary techniques. And as we’re talking about lawsuits, I mean, talk to some governors and you know that the Texas lawsuit from conservative groups seeking to revoke the FDA’s approval of a key abortion pill is top of mind in this new alliance. Kind of the idea is to be able to rapidly come together and have some sort of response if the outcome of that case doesn’t go their way or other major looming decisions. I think it’s interesting. They are billing themselves as nonpartisan. But, you know, only Democratic governors have signed up here.

Rovner: Well, we could have had Larry Hogan and the few moderate Republicans that are left.

Roubein: Yes, Charlie Baker.

Rovner: If they were still … Charlie Baker.

Roubein: Sununu.

Rovner: If they were still there, which they’re not.

Roubein: I mean, I think the other interesting thing about this is if … you looked at 2024, and if a Republican’s in the White House in 2025, they might try and roll back actions Biden has done. So I could foresee a Democratic governors alliance trying to attempt to counteract that in a way that states can.

Rovner: Well, also, on the abortion rights front, supporters in Ohio are trying to get a measure on the ballot that would write abortion rights into the state constitution. This has worked in other red and purple states like Kansas and Michigan. But Ohio? A state that’s been trending redder and redder. It was the home of the first introduced six-week abortion ban five or six years ago. How big a message would that send if Ohio actually voted to protect abortion rights in its constitution? And does anybody think there’s any chance that they would?

Roubein: I think it’s interesting when you look at Kentucky and Kansas, which their ballot measures were different. It was for the state constitution to say that there was no right to an abortion, but abortion rights …

Rovner: There was a negative they defeated saying there was no right.

Roubein: Yeah. I mean, abortion groups really think the public is on their side here. And anti-abortion leaders do think that ballot measures aren’t … like, fighting ballot measures isn’t their best position either. So I think it’ll be interesting to see. Something that caught my eye with this is that the groups are trying to get it on the 2023 general election ballot. And right now what some Republican lawmakers are trying to do to counteract not just abortion ballot measures, but more progressive ballot measures, which is to try and increase the threshold of passage for a ballot measure. And there’s a bill in the Ohio legislature that would increase passage for enshrining anything into the state constitution to 60% support. But that would have to go to the people, too. So essentially, the timing here could counteract to that. So.

Rovner: Yeah, and as we saw in Kansas, if you have this question at a normally … off time for a big turnout, you can turn out your own people. So I assume they’re doing that very much on purpose. They don’t want it to be on the 2024 ballot with the president and Senate race in Ohio and everything else. All right. Well, one more on the abortion issue. Moving to the other side. A Florida lawyer is petitioning to have a pregnant woman who’s been accused, although not convicted, of second-degree murder released from jail because her fetus is being held illegally. Now, it’s not entirely clear if the lawyer is actually in favor of so-called personhood or it’s just trying to get his client, the pregnant woman, out of jail. But these kinds of cases can eventually have pretty significant ramifications, right? If a judge were to say, I’m going to release this woman because the fetus hasn’t done anything wrong.

Kenen: Well, there’s going to be an amendment to the personhood amendment saying, except when we don’t like the mother, right? I mean, she’s already almost at her due date. So it probably is going to be moot. There’s an underlying question in this case about whether she’s been getting good prenatal care, and that’s a separate issue than personhood. I mean, if the allegations are correct and she has not gotten the necessary prenatal care, then she certainly should be getting the necessary prenatal care. I don’t think this is going to be ruled on in time — I think she’s already in her final month of pregnancy. So I don’t think we’re going to see a ruling that’s going to create personhood for fetal inmates.

Rovner: She’ll have the baby before she gets let out of jail.

Kenen: I think other lawyers might try this. I mean, I think it’s legal chutzpah, I guess. If one lawyer came up with it, I don’t see why other lawyers won’t try it for other incarcerated pregnant women.

Rovner: Yeah. And you could see it feeding into the whole personhood issue of, you know, [does] the fetus have its own set of individual rights, you know, apart from the pregnant woman who’s carrying it? And it’s obviously something that’s that we’re going to continue to grapple with, I think, as this debate continues. All right. That is the news for this week. Now it’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it; we will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: I took a look at a story in the DCist. It’s called “Locals Who Don’t Speak English Need Medical Translators, but Some Say They Don’t Always Get the Service.” It was by Amanda Michelle Gomez and Hector Alejandro Arzate, and it basically takes a look at a lack of medical translators who can help patients who don’t speak English in the D.C. area and the harm that can be caused when patients don’t have that support, whether they’re in the hospital or at medical appointment, focusing on a woman who basically said she wasn’t getting food for three days and actually left the hospital to provide her food and she was undergoing … cancer treatment and in there for an emergency situation. It also highlights a federally funded facility in D.C. that is trying to support patients in the area with translators, but some of the health policy challenges they face, such as, you know, there’s reimbursement for basically accompanying a patient to an appointment, but there’s out-of-appointment care that patients need. Like if you’re sent home with instructions in English and there’s difficulty funding that care. And I mean, I just think the issue is important and fascinating because people who cover health policy, I think, tend to realize sometimes, even if you have an M.D. and a Ph.D. in various aspects of this system, it can be very hard to navigate your care in the U.S., even if you are best positioned. So to add in not speaking a language and, in this case, having had experience trying to help somebody who spoke a language much less more commonly spoken in the U.S. You know, I was thinking, well, she spoke Spanish, you know, how bad could it be? A lot of people in the U.S. often are bilingual and Spanish is a common language that you might expect lots of people in a medical facility to know. So I think, you know, again, it just shows the complexities here of even when you’re best positioned to succeed, you often have trouble succeeding as a patient. And when you add in other factors, we really set people up for pretty difficult situations.

Rovner: Yeah, it was kind of eye-opening. Rachel.

Roubein: My extra credit is titled “Her Baby Has a Deadly Diagnosis. Her Florida Doctors Refused an Abortion,” and it’s by Frances Stead Sellers from The Washington Post. I chose the story because it gives this rare window into how an abortion ban can play on the ground when a fetus is diagnosed with a fatal abnormality. So Frances basically chronicles how one woman in Florida, Deborah Dorbert, and her husband, Lee, were told by a specialist when she was roughly 24 weeks pregnant that the fetus had a condition incompatible with life, and the couple decided to terminate the pregnancy. But they say they were ultimately told by doctors that they couldn’t due to a law passed last year in Florida that banned most abortions after 15 weeks. And so that new law does have exceptions, including allowing later termination if two physicians certify in writing that the fetus has a fatal fetal abnormality. So it’s not clear exactly how or why the Dorberts’ doctors said that they couldn’t or how they applied the law in this situation.

Rovner: Yeah, I feel like this is maybe the 10th one of these that I’ve read of women who have wanted pregnancies and wanted babies and something goes wrong with the pregnancy, and an abortion ban has prevented them from actually getting the care that they need. And I just wonder if the anti-abortion forces have really thought this through, because if they want to encourage women to get pregnant, I know a lot of women who want babies, who want to get pregnant, want to have a baby, but they’re worried that if something goes wrong, that they won’t be able to get care. You know, this question of how close to death does the pregnant woman have to be for the abortion to, quote-unquote, “save her life”? We keep seeing it now in different states and in different iterations. Sorry, it’s my little two cents. Joanne.

Kenen: My extra credit is from The Atlantic’s Katherine J. Wu. And the headline is “Eagles Are Falling, Bears Are Going Blind.” It’s about bird flu or avian flu. It does not say it couldn’t jump to humans. It does say it’s not likely to jump to humans, but that we have to be better prepared, and we have to watch it. But it really made the interesting point that it is much more pervasive among not just birds, but other animals than prior, what we and laypeople call “bird flu.” And it’s going to have — 60, something like 60 million U.S. birds have died. It is affecting Peruvian sea lions, grizzly bears, bald eagles, all sorts of other species, mostly birds, but some mammals. And it’s going to have a huge impact on wildlife for many years to come. And, you know, the ecological environment, our wildlife enviornments. And it’s a really interesting piece. I hadn’t seen that aspect of it described. And if you think — and eggs are going to stay expensive.

Karlin-Smith: I was going to say this morning, I actually saw that in Cambodia reported one of the first deaths in this recent wave, of a person with this bird flu. So the question, I guess, is in the past, it hasn’t easily spread from person to person. And so that would be like the big concern where you’d worry about really large outbreaks.

Rovner: Yeah, because we don’t have enough to worry about right now.

Kenen: We should be watching this one. I mean, this is a different manifestation of it. But we do know there have been isolated cases like the one Sarah just described where, you know, people have gotten it and a few people have died, but it has not easily adapted. And of course, if it does adapt, that’s a different story. And then … in what form does it adapt? Is it more like the flu we know, or, I mean, there are all sorts of unanswered questions. Yes, we need to watch it. But this story was actually just so interesting because it was about what it’s doing to animals.

Rovner: Yeah, it is. The ecosystem is more than just us. Well, my story is from Stat News by Calli McMurray, and it’s highly relevant for our podcast. It’s called “Current Treatments for Cramps Aren’t Cutting It. Why Aren’t There Better Options?” And yes, it’s about menstrual cramps, which affect as many as 91% of all women of reproductive age. Nearly a third of them severely. Yet there’s very little research on the actual cause of cramps and current treatments, mostly nonsteroidal anti-inflammatory drugs or birth control pills, don’t work for a lot of people. As someone who spent at least a day a month of her 20s and 30s in bed with a heating pad, I can’t tell you how angry it makes me that this is still a thing with all the other things that we have managed to cure in medicine.

OK. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Joanne?

Kenen: @JoanneKenen

Rovner: Rachel.

Roubein: @rachel_roubein

Rovner: Sarah.

Karlin-Smith: @SarahKarlin

Rovner: We will be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

Health care was a recurring theme throughout President Joe Biden’s 2023 State of the Union address on Capitol Hill this week. He took a victory lap on recent accomplishments like capping prescription drug costs for seniors on Medicare. He urged Congress to do more, including making permanent the boosted insurance premium subsidies added to the Affordable Care Act during the pandemic. And he sparred with Republicans in the audience — who jeered and called him a liar — over GOP proposals that would cut Medicare and Social Security.

Meanwhile, abortion rights advocates and opponents are anxiously awaiting a federal court decision out of Texas that could result in a nationwide ban on mifepristone, one of two drugs used in medication abortion.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Sarah Karlin-Smith of the Pink Sheet.

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Alice Miranda Ollstein
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Among the takeaways from this week’s episode:

• President Joe Biden’s State of the Union address emphasized recent victories against high health care costs, like Medicare coverage caps on insulin and out-of-pocket caps on prescription drug spending. Biden’s lively, informal exchange with lawmakers over potential cuts to Medicare and Social Security seemed to steal the show, though the political fight over cutting costs in those entitlement programs is rooted in a key question: What constitutes a “cut”?
• Biden’s calls for bipartisanship to extend health programs like pandemic-era subsidies for Affordable Care Act health plans are expected to clash with conservative demands to slash federal government spending. And last year’s Senate fights demonstrate that sometimes the opposition comes from within the Democratic Party.
• While some abortion advocates praised Biden for vowing to veto a federal abortion ban, others felt he did not talk enough about the looming challenges to abortion access in the courts. A decision is expected soon in a Texas court case challenging the future use of mifepristone. The Trump-appointed judge’s decision could ban the drug nationwide, meaning it would be barred even in states where abortion continues to be legal.
• The FDA is at the center of the abortion pill case, which challenges its approval of the drug decades ago and could set a precedent for legal challenges to the approval of other drugs. In other FDA news, the agency recently changed policy to allow gay men to donate blood; announced new food safety leadership in response to the baby formula crisis; and kicked back to Congress a question of how to regulate CBD, or cannabidiol, products.
• In drug pricing, the top-selling pharmaceutical, Humira, will soon reach the end of its patent, which will offer a telling look at how competition influences the price of biosimilars — and the problems that remain for lawmakers to resolve.

Also this week, Rovner interviews Kate Baicker of the University of Chicago about a new paper providing a possible middle ground in the effort to establish universal health insurance coverage in the U.S.

Plus, for “extra credit,” the panelists suggest health policy stories they read this week they think you should read, too:

Julie Rovner: The New York Times’ “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters,” by Stephen I. Vladeck

Alice Miranda Ollstein: Politico’s “Mpox Is Simmering South of the Border, Threatening a Resurgence,” by Carmen Paun

Sarah Karlin-Smith: KHN’s “Decisions by CVS and Optum Panicked Thousands of Their Sickest Patients,” by Arthur Allen

Rachel Cohrs: ProPublica’s “UnitedHealthcare Tried to Deny Coverage to a Chronically Ill Patient. He Fought Back, Exposing the Insurer’s Inner Workings,” by David Armstrong, Patrick Rucker, and Maya Miller

Also mentioned in this week’s podcast:

• The Associated Press’ “20 Attorneys General Warn Walgreens, CVS Over Abortion Pills,” by Jim Salter
• NPR’s “A Trump-Appointed Texas Judge Could Force a Major Abortion Pill off the Market,” by Sarah McCammon
• Politico’s “Federal Judge Says Constitutional Right to Abortion May Still Exist, Despite Dobbs,” by Kyle Cheney and Josh Gerstein
• The Becker Friedman Institute’s “Achieving Universal Health Insurance Coverage in the United States: Addressing Market Failures or Providing a Social Floor?” by Katherine Baicker, Amitabh Chandra, and Mark Shepard

click to open the transcript

Transcript: A Health-Heavy State of the Union

KHN’s ‘What the Health?’Episode Title: A Health-Heavy State of the UnionEpisode Number: 284Published: Feb. 9, 2023

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Feb. 9, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: And Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: Later in this episode, we’ll play my interview with Kate Baicker of the University of Chicago. She’s one of the authors of a new paper outlining a new proposal for the U.S. to achieve universal health insurance coverage, something every other developing nation already has, but we have not yet been able to achieve. But first, this week’s health news. We’re going to start, of course, with the State of the Union, which was livelier than usual, with way more back and forth than I’ve ever seen at one of these, and also more health-heavy than usual. I’m going to start with entitlements, notably the president threatening Republican proposals to hold the debt ceiling hostage for cuts in Social Security and Medicare. I’m still trying to decide whether this was intended or not, but Biden nevertheless ended up getting Republicans to vow not to demand cuts in Social Security and Medicare in exchange for raising the debt ceiling later this year. Here is the tape.

President Joe Biden: So, folks, as we all apparently agree, Social Security and Medicare is off the books now, right? And they’re not going to strike … [prolonged applause] All right. We got unanimity!

Rovner: So was this very clever or very lucky or both?

Ollstein: Well, it’s a little not quite what it seems. Republicans have been swearing up and down more recently that they never intended to cut Medicare and Social Security. But when they say “We want to reform it, we want to shore it up,” they’re talking about things that could limit benefits for beneficiaries. So it’s a semantics game, in part. I also want to point out that neither Republicans nor Biden have yet said that they consider Medicaid in that same untouchable category. So that really jumped out at me in the speech as well.

Rovner: Yeah, I mean, if you don’t touch Social Security or Medicare — and the Republicans are trying to say that because this has been used as a weapon for so many years — then basically that leaves Medicaid. And as we discovered in 2017, when they were trying to repeal the Affordable Care Act, Medicaid is actually pretty popular, too, because it takes care of a lot of people’s grandparents in nursing homes. I’m wondering when somebody is going to bring that up. Obviously, over the years, many, quote-unquote, “cuts” have been made to both Social Security and Medicare, mainly to slow the growth of the programs so that we can continue to afford them. Many more, quote-unquote, “cuts” will have to be made going forward. Every time you reduce payment to a drugmaker or a hospital or any other health care provider, that’s a cut, but it helps beneficiaries. So, you know, you say “cuts,” [and] beneficiaries say “they’re going to cut our benefits.” Not necessarily. They may just be making the program more affordable, including for the beneficiaries. I mean, this is just the continuous back and forth of each side, weaponizing Medicare in particular, right?

Ollstein: Well, and until we see actual proposals on paper, like you’re indicating, it is a semantics game — what some people consider a cut might not be what other people consider a cut. And there’s going to be all sorts of rhetorical games over the next several months along these lines. So, I’m waiting till we see an actual black-and-white proposal that we can all pick at and analyze together.

Rovner: Well, as we have seen, there’s danger in putting things on paper, as Rick Scott discovered this week. For those who don’t remember, it was his rather infamous proposal — was it last summer, I think? It was before the election — suggesting that all federal programs be sunsetted every five years and then have to be reauthorized, which would include Social Security and Medicare and Medicaid. And that’s not playing well at this point, as I think was predicted at the time, including by us. So moving on, I was also impressed at how the speechwriters managed to combine the, quote, “victory lap” stuff, record Affordable Care [Act] enrollment, Medicare drug price changes, limits on insulin, and surprise bills with the agenda ahead: expanding insulin price caps to the non-Medicare population, Medicaid expansion in the states that haven’t done it, making the Affordable Care Act subsidies expansions permanent. But none of these things — popular, though they may be — are likely to happen in this Congress, are they? … These are the things that fell out of the bill that passed last year.

Cohrs: Right. A lot of those cost money, which is going to cause even more problems this Congress than it did in the last one. And I thought it was pretty informative that the chair of the Energy and Commerce Committee in the House threw cold water on the insulin price-cap idea because it did gain some Republican support in the Senate when it came up for a vote. That was complicated. We won’t go into it. But yeah, it wasn’t a straight up-and-down vote on that policy, really. So I think there was some hope that maybe Republicans could get on board with it. But I think, because it applies to private market insurers, [it was called] a socialist policy, like, they just don’t want government in private plans, even though it’s a wildly popular policy. So, yeah, I think that doesn’t seem like a good signal for that policy in particular and for Medicaid expansion and a lot of these things. Democrats couldn’t even do it when they all agreed or had power in both the House and the Senate. So it’s definitely not a good indication for a lot of these things.

Ollstein: Let’s not forget that [Sen. Joe] Manchin [D-W.Va.] was the one who put the kibosh on the federal Medicaid expansion. He thought it wasn’t fair to states like his that expanded a long time ago and have been paying in a little bit. He thought it wasn’t right that states that were holdouts get a free ride. And the other Democrats argued back that it’s not fair for the residents in those states to be left out in the cold uninsured either. So this will continue. But like Rachel said, not going anywhere soon.

Rovner: So the things that in theory could happen, and these didn’t mostly come up in the speech or didn’t come up very much. But earlier in the day, Biden officials were floating a quote-unquote, “unity agenda” that included a long list of potentially bipartisan health issues, starting with the “cancer moonshot,” mental health and opioid treatment, strengthening the mental health parity rules. Some of these things actually could happen, right?

Cohrs: Yeah, I think especially on the mental health package, I think there was some unfinished business from last Congress, from the Senate Finance Committee. I think that all of these are issues that have been talked about this Congress already. And the leaders have signaled that they might be interested in. But I think there is some daylight here, and we’re still in very much the agenda-setting, throwing ideas out there that are a very vague part of this Congress. And I think actually getting things down on paper and going through hearings and that kind of thing will signal which areas there might actually be some agreement on. But again, spending is going to be a big challenge and there’s just not going to be time to get to everything.

Rovner: I think one of my frustrations is that normally the State of the Union comes right before the president’s budget comes out, usually within a week or two. And this year, the president’s budget isn’t coming out until March 9. So we have this, you know, talk about agenda-setting. We’re going to have a lot of time for people to just yap at each other without any specifics. But speaking of things that didn’t and aren’t likely to happen, the president didn’t talk very much about abortion. And what he did say — like threatening to veto any abortion ban Congress might pass, which won’t happen either with Democrats in charge of the Senate — that disappointed abortion rights supporters. They’re not happy, right, Alice?

Ollstein: Some were not. To be fair, some praised the speech, praised the president for saying the word “abortion.” This was a big thing over much of his career, including the beginning of his presidency. He would talk around it and not actually say the word “abortion,” which the groups felt contributed to stigma around it. And so the big mainstream groups, Planned Parenthood, NARAL, put out statements praising the speech, praising him for saying he would veto a ban, although, again, like you said, that’s a hypothetical. It’s not going to happen. But some other groups were critical that, one, he didn’t talk about some of the very looming direct threats to abortion access in the courts that we’re probably going to get to later.

Rovner: In a minute.

Ollstein: Just in a minute! But they were frustrated that he didn’t lay out more specifics that his administration will actually do to respond to the current loss of access in a lot of the country. They felt that we’re in a crisis moment and he spent less of the speech on abortion than he did on resort fees. That was a sore point for some advocates who I talked to.

Rovner: There was a lot of emphasis on junk fees. And I get why: These are the things that drive people crazy, and, particularly, in times of high inflation. But yes, abortion came very late in the speech — almost after a lot of people had tuned out and stopped paying attention, which I think also made some people unhappy. Well, speaking of abortion, here we are waiting for another make-or-break court decision out of Texas. Alice, this time it’s the future of the “abortion pill,” not just in Texas, but around the nation that’s at stake. How did we get here? And could we really see the abortion pill banned nationwide?

Ollstein: We really could. People have really been sleeping on this case, including some elected officials who were slow to realize the impact it could have. And mainly what people don’t understand is a bunch of states already ban all methods of abortion, including the pill, and then some additional states besides that have restrictions just on the pill. So this will mainly hit blue states and states where abortion access still exists. And so it could really have a huge impact because those states are now serving more than just their own populations. And in a lot of places, losing access to medication abortion means losing access to all abortion because there aren’t clinical services available. And so my colleague and I did some reporting on how the Biden administration is preparing or not for this ruling. They rebuffed calls from activists to declare a public health emergency for abortion. They said they don’t think that would help. While they do plan to appeal the ruling should the FDA lose, the upheaval that could happen in the meantime can’t really be overstated. And not to mention that an appeal would go to the 5th Circuit, which is very conservative, and then to the Supreme Court, which just overturned Roe v. Wade. And so while most experts we’ve talked to don’t think the legal arguments are that sound, you just can’t really …

Rovner: And remind us, this is the lawsuit that’s challenging the 22-year-old approval of the drug in the first place.

Ollstein: Exactly. And so health care legal experts also say that besides the absolute upheaval in the abortion space that this could cause, this would just completely destroy any certainty around drug approvals for the FDA. If anybody could come back decades later and challenge the approval of a drug, how can drugmakers feel comfortable developing and submitting things for approval and making their plans around that? It’s very chaotic.

Rovner: Sarah, is the FDA worried about this case? Has it not been on their radar either?

Karlin-Smith: I mean, they’re involved in the defense.

Rovner: They’re being sued.

Karlin-Smith: Right. I think it is a concern if this is used, right? If the folks who want this drug pulled would win, does it become precedent-setting in a way that you can get other products pulled? Perhaps. Again, the sentiments would not be there for a lot of other products in the way to use it. But it is a bit concerning when you think about judges having this power to overrule the scientific decisions we’ve left to civil servants, not politicians or judges, because they have expertise in science and medicine and clinical trial design and all these things we just would not expect judges to be able to rule on.

Rovner: Well, speaking of more politics, this week — actually, last week — a group of 20 state attorneys general from states with abortion restrictions wrote to CVS and Walgreens, which had already announced that they would apply to become providers of the abortion pill, warning them not to rely on the Justice Department’s interpretation of a 19th-century law that banned the use of the U.S. mail to send abortifacients. The letter doesn’t outright threaten the companies. It merely says that, quote, “We offer you these thoughts on the current legal landscape.” Has anybody sued over this yet? And what do we expect to happen here? I mean, are CVS and Walgreens going to back off their plans to become providers?

Ollstein: Well, the anti-abortion elected officials and advocacy groups are hoping that’s the case. But I think this could play out in so many ways. I mean, one, we have this national ruling that could come down, but we also have a few state rulings that could flip things the other way and force states that have put restrictions on the abortion pill to lift those restrictions and allow it. So now we have cases pending in North Carolina and West Virginia. One of them is by the manufacturer of the abortion pill, saying that states don’t have the right to put the FDA’s hat on their own heads and make those decisions. And the other is by an abortion provider, a doctor who says that these state restrictions hurt her ability to practice and hurt her patients. And so it’s just wild that we can swing anywhere from a national ban to forcing states with bans to lift those bans. I mean, it’s just all up in the air right now. I wanted to quickly point out two other things. A lot of activist groups say they are not counting on the Biden administration to adequately respond to this crisis. And so they’re doing a couple things. One, they’re encouraging people to do something known as “advance provision,” which is order abortion pills before they’re pregnant, before you need them, and just have them on hand just in case. And so they’re advising people do that in advance of the ruling. Interestingly, the FDA does not support that practice, but activist groups are encouraging it anyways. And then the other thing is the abortion pill regimen is actually two pills. And the big FDA lawsuit only goes after the first one. And so people are saying, you know, you can terminate a pregnancy just by taking a few of the second pill, even though that has a higher rate of not working and needing a follow-up procedure. And so …

Rovner: Although it’s still like, 95%, right?

Ollstein: It’s still very effective, but not quite as effective as using the two pills together.

Rovner: And I think it used to be when people would go to Mexico, that’s what they would get. They would get misoprostol, not mifepristone, which is what we think of as “the abortion pill” — and also methotrexate, which we talked about in the context of people with diseases for which methotrexate is indicated not being able to get it because it can cause abortions. But that’s another option there, right? And … it would be hard for FDA to pull those drugs because those drugs do have a lot of uses for other diseases.

Karlin-Smith: Or FDA could, I guess, be forced to take off the formal indication for use for abortion, but the drug would be out there and then could be subject to off-label prescribing, which then could potentially, I guess, impact insurance coverage if you’re using it for abortion. Pivot to if you had to go back to this one-drug regimen while, yes, it would still exist and be possible, I think a lot of providers are worried about the added burden that would create on folks that help people obtain abortion. And this system is just not set up to have enough workers to deal with that more complicated regimen. And it seems like it could end up leading to more need for surgical abortions, depending on how well it works and so forth. So I think logistically it creates a lot more challenges.

Rovner: Yeah, it’s a mess. Well, meanwhile, last issue here, we have a curious story out of a lawsuit in federal district court here in Washington, D.C., in which a judge proffered the notion that while the Supreme Court may have found no right to abortion in the 14th Amendment, that doesn’t mean there isn’t a federal right under the 13th Amendment. That’s the one barring slavery, specifically the restriction on the pregnant person’s personal liberty. As the judge correctly pointed out, the majority in last year’s Dobbs [v. Jackson Women’s Health Organization] ruling may well believe there’s no right to abortion anywhere in the Constitution. But that’s not the question that they litigated. Is this potentially an avenue that abortion rights advocates are going to explore?

Ollstein: I am not hearing a lot of hope being placed on this. If it goes anywhere, it would go back to the same Supreme Court that just ruled last year. And so abortion rights advocates are not optimistic about this strategy, but I think it’s a good indication of really both sides right now just trying to get as creative as possible and explore every legal avenue in the U.S. Constitution, in state constitutions, things where it never says the word abortion, but you could interpret it a certain way. I think that’s what we’re seeing right now. And so it’s really interesting to see where it goes.

Rovner: We are literally at the point where everybody is throwing whatever they can against the wall and seeing what sticks. All right. Well, let us turn to the federal research establishment. Late last month, a panel of advisers recommended a set of policies to strengthen oversight of so-called gain-of-function research that could inadvertently cause new pandemics. This was also one of the subjects of the first House hearing that called leading federal public health officials up on the carpet. What do we learn from the hearing? And has the federal government actually been funding gain-of-function research, or do we even know for sure?

Cohrs: So there has been a moratorium on this sort of research. And the interim director of the NIH [National Institutes of Health] quibbled over the term “gain-of-function research.” And he said we’re talking about a very select part of all of the research that could technically fall under that umbrella term. But he did say that there is a moratorium on funding that right now; there’s not current funding because they are reviewing their practices. And an advisory board did pass proposals and he laid out the process forward for that. So once those are finalized, he’ll write a memo to [Department of Health and Human Services] HHS Secretary Xavier Becerra, then it will get to the White House. So there is this bureaucratic progression that these new guidelines are going to go under, and it’s been pretty transparent and public so far. But we’ll see how things ultimately turn out. But I think they are very sensitive to this politically and they are trying to create guidelines that offer some lessons learned from some of the criticism they’ve gotten recently.

Rovner: And I think, I mean, this has become one of the major lines of argument about Republicans trying to figure out where covid came from. Perhaps it came from U.S.-funded gain-of-function research in China, which we don’t know, I don’t think. But there’s been a lot of “Yes, you did”-“No, you didn’t” going on. I mean, Sarah, does this go back to the, you know, politicians playing scientists?

Karlin-Smith: A little bit. And I think at the hearing, a lot of the Republicans who are pressuring NIH in particular on this are not super interested in listening to the subtleties and nuance of the argument. They just really want to make the point and bring up in people’s minds the possibility of, you know, covid being a lab leak, which I think … which hasn’t 100% been ruled out, but it’s kind of on the 98%, probably 99% ruled out by a lot of scientists. And so it was very hard for NIH and those lawmakers to have a reasonable discussion about the nuances and where this research might possibly benefit us in future pandemic prep. What type of precautions do need to be put in place? And I think NIH was trying to strive to communicate that actually a lot of what was recommended in this oversight report is things they’ve been working on and have put in place. But the hearing was designed by Republicans more to land those political punches and sound bites and not really delve into “Are there policy improvements that could be made here?”

Rovner: Well, speaking of civil servants trying to do their science policy jobs, the FDA’s been busy the last couple of weeks, including lifting a ban on men who have sex with other men donating blood. That’s a ban that’s been in effect in one way or another since the 1980s, when AIDS was first discovered. And in the wake of baby formula shortages, there’s now going to be a new deputy commissioner for food. And finally, the agency is asking Congress for new authority to regulate CBD [cannabidiol] products, particularly as more states legalize marijuana in all forms for recreational use. Sarah, this is an awful lot of stuff at once. Big policy changes where they try to hide some of them, or did they just all show up at once because that’s when they got finished?

Karlin-Smith: The food changes were sort of driven by events not quite within their control, and the blood policy, the CBD stuff were things in the works for some number of years now. So FDA is busy, and these are different divisions operating under it. I think the CBD stuff is drawing a lot of frustration because FDA had been working on considering how to regulate this aspect of hemp for a while now. And instead of coming up with a policy and taking action, they’ve rewound the circle; we’re back to square one and putting it on Congress’ issues. So that’s like one area where there’s a lot of frustration versus, I think, people are generally happier that the blood donation process was finally gone through and changed.

Rovner: Yes, the wheels of the federal regulatory process move slowly, as we know. All right. Finally this week, drug prices. Humira — which is a biological that treats rheumatoid arthritis and many other serious ailments, and for which you have undoubtedly seen TV commercials if you have ever turned on your television, because it’s the top-selling pharmaceutical in the world — is reaching the end of its patent life. That will soon provide the first real test of where the Affordable Care Act’s pathway to allow biosimilar competitors — effectively biologics version of generic drugs — whether that will actually bring down prices. Because there’s a chance here that there’s going to be a bunch of competitors to Humira and the price isn’t going to come down, right?

Karlin-Smith: Yeah, I mean, that’s a major concern for a number of reasons that get us back to the broader U.S. drug pricing debate and — including the role of pharmacy benefit managers in figuring out how people get coverage of their drugs. So Humira is one of the first biologics to lose patent protection, where patients actually fill the prescriptions themselves and give themselves the medicine, which is a very different payment system than if you’re getting a biologic medicine at a doctor’s office or a hospital. And so the way that most of the insurers are covering the drug for this year, they’re actually going to charge patients the same out-of-pocket cost in most instances, as if you’ve got the brand drug or the biosimilar. And because, unlike traditional generic medicines, a lot of these, at least initially, they’re not what is called auto-substitutable. So if your doctor writes you Humira, the pharmacist doesn’t automatically give you that generic. So you’d actually have to request a new prescription from your doctor, and they’d have to write it. And if you’re not going to pay less, why are you motivated to do that?

Rovner: When you’re not even positive how much whether the drug works the same way, whether the biosimilar works the same way.

Karlin-Smith: Right. And they think people are a little bit more hesitant. They don’t understand how biosimilars work compared to generic drugs, where it took — again, when the generic drug industry first started, it took people a while to get comfortable. So there are those issues. So, basically, what has happened is AbbVie has given insurance plans and payers’ discounts on their brand drug to keep it in a good place on their formularies. So there will be savings to the broader health system, for sure. The problem is if that doesn’t get passed on to the patients, and AbbVie can continue their market monopoly, my worry is, down the line, what happens to this biosimilar industry overall? Humira is not the only top-selling, big-selling biologic medicine where we want to bring down the cost. So if these biosimilar competitors don’t eventually gain market share and make money off of doing this, why are they going to go back and develop a biosimilar and try and lower the cost of the next big drug? And that’s what people are watching. I think there’s cautious optimism that, as more biosimilars for Humira launch, there will be some pressure for insurance companies to cut deals and lower prices and not just rely on making money off high rebates. But we don’t really know how it’s going to play out. And AbbVie was pretty creative over the years. In some ways that helped patients and others questionable — how much of … like, you know, there’s high concentration of the drug, low concentration. There is citrate-free, non-citrate-free. And that means that not all the competitors are going to be exactly the same in a way that creates as much competition as it seems at first. So yeah, it’s going to be messy.

Rovner: This is the famous evergreening that we saw with drugs. I mean, where they would change something small and get a whole new patent life.

Karlin-Smith: Right. So usually with generic research, you need three direct competitors to help bring the price down a lot. But in the case of Humira, while there’s going to be, probably at least six competitors this summer, maybe more, they’re not all direct competitors for the same version of Humira. So it sort of bifurcates the space a bit more and makes it harder to, you know, figure out the economics of all of that.

Rovner: Well, if you thought that drug pricing was confusing, now we’re adding a whole new level to it. So, I’m sure we will be talking about this more as we go forward. OK. That’s the news for this week. Now, we will play my interview with Kate Baicker of the University of Chicago. Then we will come back and do our extra credits.

I am excited to welcome to the podcast Katherine Baicker, currently the dean of the University of Chicago Harris School of Public Policy and soon to be provost of the university. Congratulations.

Katherine Baicker: Thank you so much.

Rovner: So, Kate is a health economist who is well known to health policy students for a lot of things, but most notably as the co-lead author of the Oregon Medicaid health experiment, which was able to follow a randomized population of people who got Medicaid coverage and a population that didn’t to help determine the actual impact of having Medicaid health insurance. Today, she’s here as lead author of a paper with a new way to possibly provide health coverage to all Americans. Kate, thank you so much for joining us.

Baicker: It’s a pleasure.

Rovner: So your new paper is called “Achieving Universal Health Insurance Coverage in the United States: Addressing Market Failures or Providing a Social Safety Net.” And in that single sentence, you’ve pretty much summed up the entire health insurance debate for, like, the last half-century. For those who don’t know, why is it that the U.S. doesn’t have universal insurance when literally all of our economic competitors do?

Baicker: Well, like so many things about our health care system, it goes back to the history of how it evolved, as well as some things that are different about the U.S. from other countries. If you look at how big the U.S. is geographically, how diverse our country is, how heterogeneous the health needs are. A lot of the solutions you see in other countries might not work so well in the U.S.

Rovner: So … and we’ve basically just not ever gotten over the hump here.

Baicker: Well, I also think we haven’t been asking the right questions necessarily. There is a real debate about whether health care is a “right” or not. And, of course, your listeners can’t see my “air quotes,” but I put that in air quotes because I think that’s the wrong question. Health care is not just one thing. Health care is a continuum of things. And if we just boil it down to should people have access to care or not, that doesn’t let us engage with the hard question of how much care we want to provide to everyone and how we’re going to pay for it.

Rovner: So I know a lot of people assume that the Affordable Care Act would — I’ll use my air quotes — “fix” the U.S. health insurance problem. And it has gone a long way to cover a lot of previously uninsured people. But who are the rest of the uninsured and why don’t they have coverage? It’s not necessarily who you think, right?

Baicker: That’s right. And, you know, the ACA, or Obamacare, actually made a lot of headway in covering big swaths of the uninsured population. There was a lot of discussion about health insurance exchanges, but actually more people were covered by Medicaid expansions than by health insurance exchanges. But both of those, as well as letting young people up to age 26 get on their parents’ policies. All of this chipped away at the ranks of the uninsured, but it left, for example, undocumented immigrants uninsured and also the vast majority of the uninsured people in the U.S. are already eligible for either a public program or heavily subsidized private insurance. And we have a problem of takeup and availability, not just affordability.

Rovner: So let’s get to your proposal. It’s not really that different from things that either we’ve tried in some parts of our health insurance ecosystem or what other countries do. What would it actually look like if we were to do it?

Baicker: Well, if you go back to what I think is the right question of how much health care do we want to make sure that everyone has access to and how are we going to get them enrolled in those programs? I think one key feature is having that coverage be as low-hassle as possible, automatic if possible, because we know that nonfinancial barriers to insurance are responsible for a lot of the uninsured population we still see today.

Rovner: We’ve seen that with pension plans, right? That automatically enrolling people get more people to actually put money away?

Baicker: That’s right. That’s one of the takeaways from behavioral economics is that defaults matter. Meaning what the baseline is and letting you opt in and out makes a big difference because people tend to stick with where they are. There’s a lot of inertia in saving for retirement, in enrolling in health insurance, in lots of different things. And being sophisticated in how we design the mechanics of those programs is important, as well as making sure that they’re financially affordable to people. So one step is making sure that whatever is available to people is as easy as possible for them to take advantage of. But the other is having a much harder discussion about what we want that basic package to be. And when you say “I want everybody to have all of the care that might possibly be available, no matter what price and no matter how much it impacts their health,” that’s more than 100% of GDP. We just can’t do that and still have any money for anything like food and housing and education and roads and all of the things that we also care about. So if we had that tough discussion as a nation, as a body politic, to say, here is the care that we think is really high-value that we think is a right for everyone and that we want to make sure is available to everyone, then people could be automatically enrolled in that default package and have the option to get more care that is more expensive and maybe a little less effective, but still worth it to them that they purchase on their own. And that opens up a whole host of other questions and ethical dilemmas that I’m sure you’re going to want to ask about.

Rovner: But it also — as a lot of people are concerned, that something like “Medicare for All” would eliminate the incentive to innovate new kinds of care. I mean, obviously, there’s this race to figure out, you know, a drug to treat Alzheimer’s and that if the federal government were to basically set prices for everything, that there would be no more innovation incentive. You actually address that here, right?

Baicker: Yes. And I’m so glad you raised that concern, because there are many challenges to having a monolithic one-size-fits-all Medicare for All type plan. One of them is, you know, affordability for the system and accessibility. But another is the dulled incentive for innovation and the dulled drive towards having new medicines and new treatments available. Medicare is very slow to innovate. It took 40-plus years for Medicare to include prescription drugs at all. And that was because when Medicare was formed in the Sixties, prescription medicine wasn’t a very important part of health care. It wasn’t a very expensive part of health care, there just weren’t that many drugs to treat people. Well, now those medicines are crucial to health and well-being. And Medicare finally added a prescription drug benefit in 2005. But that was a long lag, and that’s just one example. So I think having some fundamental access to care that we know is of high value for everyone could be coupled with having the option to purchase more generous insurance that covers more things. And that private insurance layered on top would really provide the financial incentives for continued innovation. It acknowledges the reality that in a world of scarce resources, higher-income people are going to have more health care than lower-income people. And that is an ugly reality and one that we ought to grapple with ethically, and as a matter of public policy priorities. I would argue we’re already rationing care. It is not possible for public programs to pay for all care for all people, no matter what the price, no matter what the health benefit, and being intentional about defining what it is we’re going to cover with public dollars and then letting people buy more care with private dollars is a way perhaps to make a financially sustainable system that also promotes innovation.

Rovner: And this isn’t really new. I mean, lots of other countries do this. I was in Switzerland a decade ago, and I remember that they … their extra-benefit package includes things like single rooms in hospitals and homeopathic medicine and things that I’m not sure we would end up putting into our top-up plans, but it’s something that’s important to them.

Baicker: Yes. And when people point to our European counterparts and say, look, they all have single-payer. In fact, a lot of them have a hybrid system like the one that we’re describing. And it’s important to differentiate: We’re talking about a basic plan that’s available for everyone. That doesn’t mean that it only covers cheap things. It should only cover high-value things. But some cheap things are incredibly ineffective and low-value, and some expensive things are really important for health and very high-value. So it’s about the value of the dollar spent in terms of producing health, not whether it’s expensive or cheap. And so when you think about having a top-up plan, it shouldn’t be about billing cost sharing that, you know, lower-income people are exposed to in the basic plan. It should be about adding services that are of less health importance but still valuable to the people purchasing them.

Rovner: Obviously, the biggest issue here is going to be who’s going to make that determination? I’m old enough to remember fights over the ACA, death panels, and the independent Medicare advisory board that never happened. In fact, there were a lot of these, you know, we’re going to appoint experts. And it never happened because none of the experts ever wanted to be on these panels. How do you overcome that hurdle of actually grappling with the decision of what should be covered?

Baicker: Yes, the devil is always in the details for these things, and you put your finger on a really important one where we haven’t provided a robust answer, and our analysis is meant to highlight the importance of making these hard decisions and the value of this framework. But we don’t have a magic bullet for this. I would argue that having Congress make this decision every year is a recipe for lobbying and decision-making that doesn’t actually line up with value. There’s an opportunity perhaps to have a panel of experts who, as you note, is just a hop, skip and a jump from being called a “death panel.” But I think we can rely on some clinical guidelines as guardrails on this. And we do have some examples of experimentation in this direction in the U.S. In fact, more than experimentation — if you look at Medicare Advantage, this used to be a small part of the Medicare program. These are private plans for Medicare beneficiaries that are now, I think, pretty soon going to be the majority of plans that people have. And it’s a mechanism for people to choose among plans that have some things that have to be covered, but can then add additional benefits for enrollees, and it can be a little more tailored to what people value in their plans. So I don’t think that’s the answer either. But it’s a proof of concept that we can do something like this in the U.S.

Rovner: So in some ways this would bridge the gap between Republican marketplace ideas and Democratic Medicare for All ideas. But it feels like, since the fight over the Affordable Care Act, Republicans have moved more to the right on health care and Democrats have moved more to the left on health care. You are no stranger to partisan politics nor the ways of Washington, D.C. How could everybody be brought back to what I daresay looks like a political compromise?

Baicker: Well, I’m an economist, as you noted, and that’s notoriously bad at understanding actual human beings. I don’t have any idea for the path forward through the political thicket that we’re in. In some ways, it is a little disheartening to see how difficult it is to do some basic commonsense things. In any complicated system like the U.S. health care system, there are always small technical fixes that need to be made that are just commonsense, that ought not to be political. And it’s hard to do those.

Rovner: We’re lacking in common sense right now in Washington.

Baicker: Yeah. So I can’t say that I’m hugely optimistic about a big change happening right away. On the other hand, I think covid really highlighted to people across the political spectrum how important it is to have continuity of coverage, how disparate our current system is in terms of access to care, how problematic it is to have your main avenue of health insurance be through your employer when a pandemic is coupled with a recession. So I think the challenges and the vast inequities of our health care system were laid bare during covid. So it is perhaps salient enough that people might be willing to consider alternative structures. But I can’t say I’m holding my breath.

Rovner: Well, Kate Baicker, thank you very much for, if anything, a great thought experiment. It’s really wonderful to look your way through … it’s like, oh, we could get there, maybe in another half a century.

Baicker: I hope sooner than that.

Rovner: I do, too. Thank you so much.

Baicker: My pleasure.

Rovner: OK, we’re back. And it’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it; we will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs: My extra credit is headlined “UnitedHealthcare Tried to Deny Coverage to a Chronically Ill Patient. He Fought Back, Exposing the Insurer’s Inner Workings,” in ProPublica by David Armstrong, Patrick Rucker, and Maya Miller. And I thought this story was just such a good illustration of the jargon that we use in D.C., of, like, utilization management and prior authorization. And sometimes these terms just feel so impersonal. But I feel like this story did such a good job walking through one patient’s struggle to find something that worked and then just the arbitrary choices that insurers were making, looking at their bottom line to try to prevent him from getting a very expensive treatment that actually did increase his quality of life significantly. So I would definitely recommend, as we’re thinking about insurers’ role in this whole health care cost debate as well.

Rovner: Yeah, it does bring home how the patient is always in the middle of this. Alice.

Ollstein: I chose a piece by my colleague Carmen Paun called “Mpox Is Simmering South of the Border, Threatening a Resurgence,” and it’s about how the U.S. was extremely successful in vaccinating high-risk people against mpox, which for folks who still remember the artist formerly known as monkeypox, the name was changed to reduce stigma and be more accurate. The U.S. vaccination campaign and messaging campaign to the most high-risk populations was really successful and did the trick. But as we learned from covid and every other infectious disease, if you don’t take care of other parts of the world, it could eventually come back. We’re not an island, and even islands aren’t safe. But, you know, this is about a bunch of countries, including Mexico, that really have made no mass vaccination effort at all. You know, some civil society groups are trying on their own, but they just don’t have official government backing. And that’s really dangerous. And it meant that cases are surging in parts of Latin America and parts of Africa. And as we saw from covid, that leads to the development of new variants and things traveling back to the U.S. and other places around the world. So, certainly, something to pay attention to.

Rovner: Public health is important. World public health is important. Sarah.

Karlin-Smith: I looked at a piece called “Decisions by CVS and Optum Panicked Thousands of Their Sickest Patients,” by Arthur Allen for Kaiser Health News. It’s a deep dive into CVS and Optum moving out of, to some degree, business places where they provide home infusion services of perinatal nutrition to people that essentially cannot eat or drink in most cases. And they basically decided that it’s not a great business opportunity for them in many cases. But these are people that really depend on these services to live and survive, and they’re very complex medicines and essential nutrition to get and deliver. And at the same time, I think what really fascinated me about this story is it talks about this dynamic of while companies are getting out of the space where you’re providing this service to people that need these IV treatments to survive and live, there also has been development of these medical spas, as they’re called, where people that actually do not need IV hydration or IV nutrition are essentially being given it for nonmedical purposes. And there’s a lot of money being made there. And it just shows you how some of the profit incentives in our system don’t necessarily align with treating the people that actually need the health care first.

Rovner: Yeah, it’s like the people with diabetes not being able to get their drugs because people in Hollywood want to lose 10 pounds fast. But this obviously is, you know, another life-or-death issue. Well, I chose an op-ed this week in The New York Times by the University of Texas law professor Steven I. Vladeck called “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters.” And it answered a lot of questions for me. First, how is it that so many suits end up in front of the same judges who the plaintiffs know are likely to rule in their favor, and all in Texas? So it turns out that Texas has distributed its federal judges in a way that in nine districts there is only one judge. And in 10 more, there are only two judges. Obviously, there’s no random draw in those districts where there’s only one judge. That’s what you’re going to get. So we keep seeing some of the same Texas judges, first Judge Reed O’Connor in Fort Worth, and now Matthew Kacsmaryk, a former advocate for a conservative think tank and the only federal judge in Amarillo. Judge O’Connor had the big ACA case, now has a big preventive care case. Judge Kacsmaryk has the abortion pill case that we’ve been talking about. It’s a really interesting piece about how that could really twist justice. But it also includes several ways to fix it. We’ll have to see if any of them actually get taken up.

OK. That is our show for this week. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review — that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me as long as Twitter is still up. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Rachel

Cohrs: @rachelcohrs

Rovner: Sarah.

Karlin-Smith: @SarahKarlin

Rovner: We will be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

The public health emergency in effect since the start of the covid-19 pandemic will end on May 11, the Biden administration announced this week. The end of the so-called PHE will bring about a raft of policy changes affecting patients, health care providers, and states. But Republicans in Congress, along with some Democrats, have been agitating for an end to the “emergency” designation for months.

Meanwhile, despite Republicans’ less-than-stellar showing in the 2022 midterm elections and broad public support for preserving abortion access, anti-abortion groups are pushing for even stronger restrictions on the procedure, arguing that Republicans did poorly because they were not strident enough on abortion issues.

This week’s panelists are Julie Rovner of KHN, Victoria Knight of Axios, Rachel Roubein of The Washington Post, and Margot Sanger-Katz of The New York Times.

Panelists

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Margot Sanger-Katz
The New York Times

@sangerkatz

Read Margot's stories

Among the takeaways from this week’s episode:

• This week the Biden administration announced the covid public health emergency will end in May, terminating many flexibilities the government afforded health care providers during the pandemic to ease the challenges of caring for patients.
• Some of the biggest covid-era changes, like the expansion of telehealth and Medicare coverage for the antiviral medication Paxlovid, have already been extended by Congress. Lawmakers have also set a separate timetable for the end of the Medicaid coverage requirement. Meanwhile, the White House is pushing back on reports that the end of the public health emergency will also mean the end of free vaccines, testing, and treatments.
• A new KFF poll shows widespread public confusion over medication abortion, with many respondents saying they are unsure whether the abortion pill is legal in their state and how to access it. Advocates say medication abortion, which accounts for about half of abortions nationwide, is the procedure’s future, and state laws regarding its use are changing often.
• On abortion politics, the Republican National Committee passed a resolution urging candidates to “go on the offense” in 2024 and push stricter abortion laws. Abortion opponents were unhappy that Republican congressional leaders did not push through a federal gestational limit on abortion last year, and the party is signaling a desire to appeal to its conservative base in the presidential election year.
• This week, the federal government announced it will audit Medicare Advantage plans for overbilling. But according to a KHN scoop, the government will limit its clawbacks to recent years, allowing many plans to keep the money it overpaid them. Medicare Advantage is poised to enroll the majority of seniors this year.

Also this week, Rovner interviews Hannah Wesolowski of the National Alliance on Mental Illness about how the rollout of the new 988 suicide prevention hotline is going.

Plus, for “extra credit,” the panelists suggest health policy stories they read this week that they think you should read, too:

Julie Rovner: Axios’ “Republicans Break With Another Historical Ally: Doctors,” by Caitlin Owens and Victoria Knight

Margot Sanger-Katz: The New York Times’ “Most Abortion Bans Include Exceptions. In Practice, Few Are Granted,” by Amy Schoenfeld Walker

Rachel Roubein: The Washington Post’s “I Wrote About High-Priced Drugs for Years. Then My Toddler Needed One,” by Carolyn Y. Johnson

Victoria Knight: The New York Times’ “Emailing Your Doctor May Carry a Fee,” by Benjamin Ryan

Also mentioned in this week’s podcast:

• KFF’s “KFF Health Tracking Poll: Early 2023 Update on Public Awareness on Abortion and Emergency Contraception,” by Grace Sparks, Shannon Schumacher, Marley Presiado, Ashley Kirzinger, and Mollyann Brodie
• USA Today’s “Biden Seeks to Bolster the Affordable Care Act’s No-Cost Contraception Rule,” by Ken Alltucker
• The National Review’s “To Reduce Abortions, Should Giving Birth Be Free?” by Wesley J. Smith
• The New York Times’ “New Medicare Rule Aims to Take Back $4.7 Billion From Insurers,” by Reed Abelson and Margot Sanger-Katz
• KHN’s “Government Lets Health Plans That Ripped Off Medicare Keep the Money,” by Fred Schulte

Click to open the transcript

Transcript: Au Revoir, Public Health Emergency

KHN’s ‘What the Health?’Episode Title: Au Revoir, Public Health EmergencyEpisode Number: 283Published: Feb. 2, 2023

Tamar Haspel: A lot of us want to eat better for the planet, but we’re not always sure how to do it. I’m Tamar Haspel.

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Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Feb. 2, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Margot Sanger-Katz of The New York Times.

Margot Sanger-Katz: Good morning, everybody.

Rovner: Rachel Roubein of The Washington Post.

Rachel Roubein: Hi, good morning.

Rovner: And Victoria Knight of Axios.

Victoria Knight: Hi! Good morning.

Rovner: Later in this episode we’ll play my interview with Hannah Wesolowski of the National Alliance on Mental Illness. She’s going to update us on the rollout of 988, the new national suicide prevention hotline. And because it’s February, we’re asking for your best health policy valentines. You can write a poem or haiku and tweet it, tagging @KHNews, and use the hashtag #healthpolicyvalentines, all one word. We’ll choose some of our favorites for that week’s podcast and the winner will be featured on Valentine’s Day on khn.org with its own illustration. But first, this week’s news. So we’re going to start with covid, which we actually haven’t talked about very much for a couple of weeks. But this week there’s some real actual news, which is that President [Joe] Biden has announced he will be ending the public health emergency, as well as the national covid emergency, which is a different thing, on May 11. Depending on who you believe, the president’s hand was forced by the Republican House this week voting on a bunch of bills that would immediately end the emergencies — or that May had always been the administration’s plan. I’m guessing it’s probably a bit of both. But let’s start with what’s going to happen in May, because it’s a bit confusing. We’ve talked at some length over the months about the Medicaid “unwinding.” So let’s start with that. How is that going to roll out, as we will?

Sanger-Katz: So that is actually not going to be affected at all by this change. When Congress passed the CARES Act, it tied a lot of these pandemic programs to the public health emergency. And I think what Congress has been doing in recent months is trying to untie some of those policies from the public health emergency, because I think it has identified that some of them are worth keeping and some of them are worth eliminating, and that it ought to make up its own mind about the right timeline and process for that — instead of just leaving it in the hands of the president to end the public health emergency when he sees fit. So what happened in the omnibus legislation, the big spending bill that passed at the end of the year, is that Congress said, OK, there has been this provision in the CARES Act that said that states need to keep everyone who is enrolled in Medicaid continuously enrolled in Medicaid until the end of the public health emergency, or they risk losing this extra Medicaid funding that they have been getting — and that, I think, has been beneficial to state budgets. And what Congress did is they said, OK, we’re going to create a date certain, starting in April, [that] this policy is going to go away, but we’re going to do it sort of incrementally. So the money’s not going to go away all at once. It’s going to go away in a couple of stages to make it a little easier on states. And they also created a lot of procedures and what they call guardrails to prevent states from just dumping everyone out of Medicaid all at once. So they’re requiring them to do various things to make sure they have the right address and that they’ve contacted people in Medicaid. They will punish them. There’s new penalties that the secretary can use to punish them if it seems like they’re doing things too arbitrarily, and there are other provisions. So as a result, the public health emergency doesn’t have any effect on this. But this policy and Medicaid is going to start unwinding right around the same time. In April and May we’re going to start seeing states probably phasing down their enrollment of some Medicaid beneficiaries as this extra funding that is tied to that goes away.

Rovner: And just a reminder, I mean, there’s now more than close to 90 million people on Medicaid, many of whom are probably no longer still eligible. So the concern is that states are going to have to basically reevaluate the eligibility of all of those people to see who’s still eligible and who’s not and who may be eligible for other government programs. And it’s just going to be a very long process. And I know health advocates are really worried about people falling through the cracks and losing their health insurance entirely.

Sanger-Katz: I think it’s still a huge risk and there still are a lot of people who are likely to lose their insurance as a result of this transition. But it was a weird situation that we were in, where you kind of went from all or nothing, just by the president deciding that the public health emergency was over. And I do understand why Congress decided, OK, look, why don’t we take some leadership over how this policy is going to phase down instead of just leaving it as this looming cliff that we don’t know exactly when it will come and where we don’t have control over the procedure for it.

Rovner: And Margot, you also mentioned things that Congress thought they might want to keep. And I guess a big one of those is telehealth, right? Because that was also in the end-of-year omnibus bill.

Sanger-Katz: Yeah, that’s proved to be really popular, because of the pandemic, because it was dangerous for people to get into doctors’ offices and hospitals early in the pandemic. Medicare loosened some rules and then Congress kind of cemented that. That allowed people to get doctors’ visits using video conferencing, telephone, other kinds of remote technologies, and Medicare paid for that. And that’s been super popular. It has a lot of bipartisan support. And now Congress has extended that benefit for longer. So I think we’re going to see telehealth become a more permanent part of how Medicare benefits are delivered.

Rovner: But not permanent yet. I think there’s still some concern that if it …

Sanger-Katz: Just for two years right now.

Rovner: Well, if it gets too popular, it could get really expensive. I think there’s a worry about …

Sanger-Katz: I do think that the two years will create some infrastructure — I think even just the temporary provision. A lot of doctors and hospitals … I was talking to folks that worked in medicine, they just weren’t set up for it at all. And they had to figure out, how are we going to do it? How are we going to build for it? What systems are we going to use? How are we going to make it secure? So some of that has already happened. But I also think two years is a long-enough runway that you start to imagine that there will be more start-ups, more health care providers that are really orienting their practice around this method of delivering care because they have some sense of permanence now.

Rovner: And I can’t imagine that this won’t become one of those, quote-unquote, “extenders” that Congress renews whenever it expires, which they do now. Rachel, you wanted to say something?

Roubein: Oh, yeah. To your point, I just think once there’s infrastructure built, it’s really hard to take things away. But I guess while we’re on the train of things that aren’t impacting, Congress also in their big government spending bill made a change to Paxlovid, allowing Medicare to continue to cover it under emergency use authorization. So that also won’t be impacted by an end to the public health emergency.

Rovner: So what are the things that will be impacted by the end of the public health emergency?

Knight: Really the biggest thing — and my colleague Maya [Goldman] has been pioneering at writing about this — is that it’s really CMS [the Centers for Medicare & Medicaid Services gave providers a lot of flexibilities that were tied to the PHE [public health emergency]. So it’s a bunch of different small things. It’s, like, reporting requirements, physical environment standards, even things like where radiologists can read X-rays. It’s small stuff like that that a lot of providers have kind of gotten used to and relied on during covid. And so those may go away. It’s possible also that HHS [the Department of Health and Human Services] could allow some of those to remain in place. When I talked to congressman Brett Guthrie, who is the one who introduced the bill to end the PHE, he said he wants to talk to HHS and figure out what are some things that he knows providers enjoy on these flexibilities. There was something about nurses’ training that he wants to keep in place. So they’re making it sound like it’s the end of the world end to this. I’m not sure that that’s actually true.

Rovner: Yeah, and I know the administration’s been pushing back on some of the stories that said that this will be an end to free vaccines and the actual covid testing. But that’s not even really true, right?

Roubein: I think one of my colleagues had talked a little bit about this to Jen Kates from the Kaiser Family Foundation, and that was a concern of hers. So I think some of it is dependent on what policies … and see what the next few months …

Rovner: My impression is that federal government has purchased all of these things. So it’s not … so much the end of the public health emergency. It’s when they run out of supply that they have now. So it’s not so much linked to a date. It’s linked to the supply, because I guess at the end of the public health emergency, they won’t be buying anymore. If nobody wants to answer this question, please don’t. But I’m confused about how this all affects the controversial Title 42, which is a public health requirement that was put in by the Trump administration that limited how many people could come across the border because of covid. I’m still confused about who’s for ending it and who’s not for ending it, and whether ending the emergency ends it or whether it’s in court. And if nobody knows, that’s fine because it’s not totally a health issue. But if anybody does, I’m dying to know.

Sanger-Katz: So my understanding on this one — which I also want to say I’m not like 1,000% sure, but this is what I’ve been told — is that it is related to public health authority and assessment that there is a health emergency, but that it is not part of that CARES framework where … when the public health emergency ends, it ends. It is a separate declaration by the CDC [and Health and Human Services] secretary. And so what I have been told is that it is not directly linked to this, but obviously it is the policy of the Biden administration that we are no longer experiencing a public health emergency. Then I do think the continued use of that policy starts to come under question because the justification for it is quite similar, even if the mechanism is different.

Knight: And I have to tell you, Julie, some of my immigration reporter friends on the Hill were also confused. I think everyone was a little confused because the Biden administration was saying this will lift Title 42 immediately, and Republicans were saying, no, it doesn’t. Brett Guthrie literally came to me and was like, “It is not ending yet.” So I think …

Rovner: I’m not the only one confused?

Knight: Yeah, you’re not the only one confused. And people were calling lawyers, being like, what does this mean when that was going on this week? So, yeah.

Roubein: I think it’s going to be a continuation of this big political fight that we’ve seen over Title 42. An administration official argued to my White House colleague Tyler Pager that essentially because Title 42 is a public health order, the CDC is determining that [there] would no longer be a need for the measure once the coronavirus no longer presents a public health emergency. So we’ll see wrangling over this.

Rovner: Yes, this will go on.

Sanger-Katz: I mean, it’s the same administration, you would think that they would be making a similar judgment about these different things. But the politics around this immigration policy are quite fraught. And it’s possible that they will be de-linked in some way. We’ll see.

Rovner: We will see.

Roubein: And the fight over this held up millions of dollars of covid aid last year. So it’s just been really political.

Rovner: That’s right. Well, moving along and speaking of the Republican-led House, they have, shall we say, refocused the special committee on covid that was set up in the last Congress. Rather than looking at how the nation flubbed preparedness in the early response to the pandemic. The Republican panel is now expected to concentrate on complaining about mask and vaccine mandates, trying to figure out the virus’s origins, and, at least so they’ve said, roasting scientists and public health leaders like the now-retired Anthony Fauci. Among the new Republican members appointed to the panel are the outspoken Marjorie Taylor Greene and former Trump White House doctor, now congressman, Ronny Jackson of Texas. I imagine, if nothing else, these hearings will be very lively to watch, right?

Knight: They definitely are going to be lively to watch. We did just find out yesterday that congressman Raul Ruiz is going to be the Democratic ranking member [of the Select Subcommittee on the Coronavirus Pandemic]. He’s also a doctor. Congressman Brad Wenstrup [R-Ohio] is the chairman of the committee. He’s also a doctor. So it is not only some members who have pushed forward misinformation about covid; there are also members that agree with vaccines and things like that. So I think it’ll be interesting to see how they play this out. I’ve been talking to a lot of them on what they’re going to focus on the committee, what the goal is. So it may not be as wild as we’re anticipating. There may be some members that want it to be, but I think that they want to look at covid origins for sure and the Biden administration’s rollout of vaccines and mandates and things like that. But there’s also Democrats on the committee. So we’ll see how it goes.

Rovner: I will point out, though, when you point out how many doctors are there that Andy Harris of Maryland, who’s also a doctor, a Johns Hopkins anesthesiologist, came under fire for prescribing ivermectin. So we’ve got doctors and we’ve got doctors in the House.

Knight: But I listened to the covid origins hearing yesterday — they did the first one, the Energy and Commerce [ Committee], and I covered it — and I was expecting it to be, like, very intense. And it actually was pretty measured and nothing too wild happened, so …

Rovner: But we shall see. All right. Well, let’s move on to abortion. This is where I get to say that if you didn’t listen to last week’s two-parter on the state of the abortion debate and you’re at all interested in this subject, you should definitely go back and do that. But, obviously, I wish more people would listen to it because a new poll this week from my colleagues over the firewall at KFF finds that a large portion of the public is still confused over whether medication abortion is legal in their state, about whether it requires a prescription (it does), and about how it works compared to emergency contraception. The first one can terminate an early pregnancy. The second one can only prevent pregnancy. Given how fast things are changing in various states, I suppose this confusion is predictable. But is there any way to make this even a little bit clearer? I mean, we have a public that honestly is getting ready to throw its hands up because they can’t figure out what’s what.

Sanger-Katz: I think there’s a good role for journalism here. The abortion pill is a very mature technology. It’s been around for a very long time. It’s become the means for more than half of abortions in America. But I still think, you know, a lot of people don’t know about it. I think when they think about abortion, a lot of Americans are thinking about a surgical procedure that happens in a clinic. Advocates on both sides of the abortion debate are very clear that medication abortion is likely the future of abortion for a lot of Americans because it is easily transportable, because it is able to be prescribed through telemedicine, because it is less expensive than clinic abortion. But I do think just a lot of Americans just don’t have a lot of familiarity with this. And so I think we just have to keep telling them about it, explaining how it works, what the safety profile of it is, how you can get it, what the laws are around it. And, you know, this is a bit of a shifting ground beneath our feet because states are actively regulating and restricting this technology. And I have a team of colleagues at The New York Times in the graphics department who are amazing, who are just like every day updating a page on our website about what is the state of laws surrounding abortion in this country? And it’s really remarkable how often the laws, particularly about abortion pills, are changing. You know, several times a week they are updating that page. So I think all of us just have to keep educating the public about this.

Rovner: And my required reminder that the “morning-after pill” is not the same as the abortion pill. The morning-after pill is now available over the counter. And we now know — thank you, FDA, for changing the label — that it cannot actually interrupt an existing pregnancy. It can only prevent pregnancy. So that’s my little PSA. Meanwhile, we have talked a lot about how anti-abortion forces are pushing harder than ever for a national abortion ban. The Republican National Committee passed a resolution last week, pushed by some of the more strident anti-abortion groups, calling for Republicans to, quote, “go on the offense” in 2024 to work for the most restrictive abortion laws possible. Given that polling still shows a majority of Americans and even a majority of swing voters still think abortion should be legal, are the Republicans driving themselves politically off a cliff here, or do they really think that revving up their base will help them win elections?

Roubein: I think that this is notable from the RNC because, as you mentioned, anti-abortion advocates were really, really mad at people like Senate Majority Leader Mitch McConnell, other Republicans who were saying that it was a state issue and had been pushing for them to paint Democrats as extreme, pushing a very different message. So this is ahead of 2024. Obviously, anti-abortion advocates are, when they’re looking at who they’re going to endorse in the presidential race, are going to be looking for candidates that support some kind of federal gestational limit on abortion.

Knight: I know Alice [Miranda Ollstein], who has been on here a lot, she was reporting that these anti-abortion groups are also pushing Republicans to put bills on the House floor to vote on restricting abortion. So there’s a six-week bill that’s already been introduced, maybe some other weeks. And so I think depending on if they actually do floor votes on this, that’s going to be something Democrats will use to attack them, I’m sure, in the upcoming election and maybe also something Republicans want to promote. So I think that it’s definitely notable, and we’re going to have to see if it’s the same as it was in the midterms when it didn’t seem to be a winning message for Republicans. But the anti-abortion groups are saying double down more. So we’ll see.

Rovner: Well, speaking of anti-abortion groups, they’ve been quietly pushing something new: a campaign to, as they call it, quote, “make birth free.” The idea is that a pregnant woman shouldn’t be swayed to have an abortion because she thinks she can’t afford to give birth. It’s been quite a few years since the anti-abortion side tried to advocate for benefits for pregnant women. I remember in the mid-1980s, congressman Henry Hyde — yes, he of the Hyde Amendment — joined with one of the most liberal members of the House, former California Democrat Henry Waxman, to sponsor a bill to reduce infant mortality. It turned out to be the beginning of Medicaid’s benefit for pregnant women, for prenatal delivery and postnatal care, something that’s now extremely popular. Do we expect to see more for this, more of this, or for this to catch on? … I’ve seen the group asking for this. I haven’t really seen any lawmakers suggesting this. It would be pretty expensive to basically pay for every birth in the country. We have a lot of shaking heads.

Knight: I had not heard any lawmakers talking about that. I don’t know if others have. I know there has been some push from some Republicans to put more safeguards in place for women who give birth, like just more supportive programs, but like, I haven’t heard like making birth completely free. And I know also that’s not maybe a widely held view within — I know there are some Republicans pushing for it. There’s a really good Washington Post article about this recently, about paid leave also. But they seem to be in the minority. And so there’s not enough movement to, like, make the party actually do anything on that.

Roubein: I think it’s sort of the beginning. Like Americans United for Life, a big anti-abortion group that’s written a lot, a lot of model laws that states have adopted. They had released a white paper about this. I think that’s sort of the beginning of the push and that’s what we tend to see with the anti-abortion movement is, you know, sometimes we see these policies come out from different groups and then they advocate and then potentially it goes to legislation and they try and find different lawmakers’ ears. So I think it’s a little bit TBD at this point.

Sanger-Katz: I also think it highlights how there’s a growing movement in the Republican Party — and I would say this is not a majority of Republicans yet — but we do see a significant minority that really are pursuing these pro-family policies, policies that we often think about as being pursued by Democrats. Family leave is an example of that, interest in day care, the child tax credit. There are a number of Republicans that were really champions of that policy in the last few years. And I think this feels like it’s a piece with that, that a lot of Republicans, they want to encourage people to have families, to have children, to be able to care for their children. And they understand that it’s hard and it’s expensive. But I do think that those ideas tend to bump up against the more libertarian elements in the Republican Party that are opposed to a lot of government spending, a lot of government intervention in people’s family lives and just concerned about the deficit and debt as well. And so this continues to be an interesting development. My colleague Claire Cain Miller at The Upshot has written a lot about this debate within the Republican Party as it relates to some of these other policies. And I wonder if this idea of making birth free could start to become part of that package of policies that you see some Republicans really interested in, even though you might think of the issue as being something that is more classically a Democratic issue.

Rovner: Although I’m wondering if the Democrats are going to pick up on this and try to hold the Republicans’ feet to the fire on it. It’s like, see, your base would like to make this free. Don’t you want to join them? I could see that happening although hard to know. All right. Well, finally this week on the reproductive health agenda, the Biden administration undid another Trump regulation, this one to eliminate employers with, quote-unquote, “moral objections to birth control” from having to offer it under the Affordable Care Act. Those with religious objections would still have a workaround to ensure that their employees get the coverage, according to the Department of Health and Human Services. Actually, only a handful of employers have used the moral exception. Actually, I think the more important part of this regulation would create a new pathway for employees of religiously objecting employers, like religious schools and colleges, to get coverage without involving the employer at all, nor making the employer pay for it. This has been a big sticking point and created a giant backlash early on in the Affordable Care Act’s rollout — and two separate Supreme Court cases — because the employers didn’t want to be seen to be facilitating people getting birth control that they didn’t believe in. Now that they’re going to totally separate this from the employer, might this put that little fight to rest? Not a little — a big fight to rest? [pause] We have no predictions?

Sanger-Katz: This feels like one of those policies that is just going to flip-flop back and forth when we have different presidents. The Trump administration, you know, went really far. This idea of a moral objection, I think doesn’t have a particularly strong basis in law or at least didn’t historically. But the Supreme Court said that they had the authority to do it. And so I think that then creates a precedent that future administrations can do it. I do think that there is a concern from the religious community that this requirement imposes too much of a moral stricture on them. And so they are always pushing for more and wider exceptions to this contraceptive coverage policy. To me, the big surprise in this is just that it took so long. The Trump administration rolled out this particular policy almost immediately upon taking office. And now we’re more than two years into the Biden administration and they have finally rolled it back.

Rovner: Yes. And I am keeping track. And I will update my little infographic about how long it’s taking the Biden administration to change some of these policies. Well, finally, this week, Medicare Advantage, as we’ve mentioned before, private Medicare plans have become very popular, particularly because they often offer extra benefits, mostly because they’re being paid extra by the federal government. But it seems some of these companies have also figured out how to game the system. Surprise. So this week, the federal government announced a crackdown by way of new audits that’s predicted to recoup nearly $5 billion. Medicare’s always … things with lots of zeros. Margot, you wrote about this this week. What are they going to do?

Sanger-Katz: So just a little bit of background. Medicare pays Medicare Advantage plans a set amount per person to take care of them. And the idea is the insurance company can try to do a better job and provide less medical care and keep people healthier and save the remainder as profits. And when Medicare Advantage started, there was this problem where the plans had this huge incentive to just pick all the healthy seniors, because if you pick all the healthy people, they don’t need a lot of medical care and then you get to keep a lot of that payment as profits. And so Congress came up with a new system where if you take care of someone who is sick, who has diabetes, who has substance abuse problems, who has COPD [chronic obstructive pulmonary disease], you get a little bonus payment so that the insurer has an incentive to cover that person. They have a little bit of extra money to take care of their health needs. And what we’ve seen over the years that the Medicare Advantage program has become mature, is that the plans have gotten extremely good at finding every single possible thing that is wrong with every single possible person that they enroll. And in some cases, they just kind of make things up that don’t seem to be justified by that person’s medical records. And so the amount that the Medicare system is paying to these plans has just gone up and up and up. And there are all kinds of estimates of how much they’ve been overpaid that are kind of eye-popping. And there are quite a lot of serious fraud lawsuits that are making their way through the federal courts. There have been some settlements, but basically every major insurer in this program is facing some kind of legal scrutiny for the way that they are diagnosing their patients to get these payments. And you know, what’s interesting to me about it is there’s been quite a lot of good journalism about this problem. Julie, your colleague Fred Schulte, I think, has been a real leader on this and had actually a big, big scoop recently. And the GAO has written about it. The HHS inspector general has done audits and written about it. There have been these lawsuits. This is not really a secret, but there has been very little action by CMS over the last decade on this problem. And I think there are a few reasons for that. One, I think it’s hard to fix. I will give them some credit. The policy levers are complicated, but I also think there is just a big political disincentive to do anything about this. Medicare Advantage has become more and more popular over the years. It is poised to enroll a majority of seniors, of Medicare beneficiaries, this year, and those people are very diffuse across the country. It’s not the case that there’s just Medicare Advantage in one or two markets where you have a couple members of Congress who care about it. They’re kind of everywhere. And they’re not just in Republican districts. Even though Republicans created this program, there are a lot of them in Democratic districts, too. And people like these plans. They have some downsides, which we could talk about another time. But they tend to have lower premiums for seniors. They tend to cover benefits like hearing, vision, and dental benefits that the traditional Medicare program does not cover. And so people really like these plans. And the more the plans are paid, the more they can afford to give all these goodies to their beneficiaries. And so I think there has been a lot of political pressure on CMS to not aggressively regulate the plans. And that’s part of why what they did this week is actually pretty striking. They did something pretty aggressive. They have been conducting these audits where they take 200 patients — which is a very, very small fraction of the total number of patients in any one plan — and they look at the diagnoses and they compare them to the medical records for those patients and they say, hey, wait a minute, I don’t think that this patient really has lung cancer. I think this patient doesn’t have that. So you shouldn’t have gotten that payment. And so that has been the system for some time where they look at a couple of records and they go back to the plans and they say, hey, pay us back this lung cancer payment. You can’t justify this based on the medical record.

Rovner: And they extrapolate from that, right? And it’s not …

Sanger-Katz: No. So what this new rule says is it says, you know, if in your 200 people that we look at, we find that you have an error rate of whatever, 5%, we are now going to ask you to pay back the money across your whole book of business, that you can’t just pay us back for the five people that we found, you have to pay back for everyone because we assume that whatever kinds of mistakes or sketchy things that you’ve done to create these errors in this small sample, probably you’ve done them to other patients, too. So that’s like the big thing that the rule does. It says “Pay back more money.” And then the other thing that it says is it says we’re going to reach back in time and you’re got to pay back all the extra money you got in 2018, in 2019, in 2020, and in 2021. So it’s not just forward-looking, but it’s also backward-looking, trying to recover some of what CMS believes are excessive payments that the plans received.

Rovner: Although, as my colleague Fred Schulte points out, they don’t go back in time as far as they could. So they’re basically leaving a fair bit of money on the table for … I guess that’s part of the balancing that they’re trying to do with being aggressive in recouping some of this money and noting that this is a very popular program that has a lot of bipartisan support.

Sanger-Katz: Yeah, it’s been interesting. The market reaction was very muted. So this suggests to me that the plans, even though it is aggressive relative to what we have seen in the past, that it was not as aggressive as what the plans and their shareholders were worried about.

Rovner: Exactly. All right. Well, that is as much time as we have for the news this week. Now, we will play my interview with Hannah Wesolowski of NAMI. Then we will come back and do our extra credits.

I am pleased to welcome back to the podcast Hannah Wesolowski of the National Alliance on Mental Illness. You may remember we spoke to Hannah last February in anticipation of the launch of the new three-digit national suicide hotline, 988. Hannah, welcome back.

Hannah Wesolowski: Thanks, Julie. It’s great to be here.

Rovner: So the 988 hotline officially launched last July. It’s been up and running now for just about seven months. How’s it going?

Wesolowski: Largely, it’s going great. We’re really excited to see that not only are more people reaching out for help — overall, there’s about a 30% to 40% increase, year over year, when we look at every month of the helpline — but they’re talking to people quickly. They’re getting that help. They’re getting connected to crisis counselors in their state. And that really displays the tremendous work that’s happened across the country to build up capacity in anticipation of the lifeline.

Rovner: Is there anything that surprised you about the rollout, something that was unexpected — or that you expected that didn’t happen?

Wesolowski: I had a few sleepless nights there, worried about: Would people be able to get through? What would demand look like? And would call centers have that capacity? This was a quick turnaround. Congress passed this in late 2020, and it went live in mid-2022. That’s not a lot of time in the real world to actually stand up call centers that have a 24/7 capacity to answer calls, texts, and chats. And yet, when we look at the numbers, they’re amazing. The number of texts alone has grown exponentially, when we look at people who were texting the lifeline previously and are now texting 988. They’re getting through. They’re talking to people quickly, and there’s tens of thousands of them that are doing it every month.

Rovner: And I imagine, particularly, younger people might well prefer to text than to actually talk to someone on the phone.

Wesolowski: Exactly. This is about making sure this resource is accessible to anyone and makes it as easy for them to get the help they need in the way that they prefer to get it. It is hard to get a young person to pick up the phone. So texting is absolutely critical to reach a population that is in crisis. There’s a youth mental health crisis in this country. And so making sure that we are responsive to the needs of youth and young adults is absolutely critical.

Rovner: So I see that mental health, in general, and the 988 program, in particular, got big funding boosts in the most recent omnibus spending bill. Republicans in the House, however, say they want to roll back funding for all of these domestic discretionary programs to fiscal 2022 levels. What would that mean for this program and for mental health in general?

Wesolowski: You’re right. 988 got [an] exponential increase in funding in the omnibus. It grew from $101.6 million in fiscal year 2022 to $501.6 million in fiscal year 2023. So nearly five times the funding. And it’s still not everything we estimated that is needed out there. Just to fund the local call centers alone, it would probably be more than $560 million. That doesn’t include the cost of operating the national network, the data integrity, the technical platforms, the backup networks, you know, all the resources that are needed to do this, plus public awareness. There still hasn’t been a widespread public awareness campaign of 988. So while $501.6 million is amazing, it’s still only a fraction of what we ultimately need. So thinking about future cuts to this … this is something that saves lives. There’s very clear data that lifelines save lives, and we’re telling people that this resource is there; to cut funding would mean that people [who need] help wouldn’t be able to connect to somebody when they need it most.

Rovner: So I know there’s been some resistance to using 988. Some folks, particularly on social media, warn that callers could be subject to police involvement or involuntary treatment or confinement. Tell us how it really works when someone calls. And are some of those concerns well placed or not?

Wesolowski: Every concern that is made about this system comes from a real place of people who have been in crisis and gotten a horrific and traumatic response. With 988, the thing that is important for people to understand is there is no way to know your location. There is no tracking of your information. This is 100% anonymous. In fact, right now we have the challenge of calls being routed based on area code and not somebody’s general geographic location. So, for example, I have a New Hampshire area code, love the great state of New Hampshire, but live in Virginia and have for many years — I would get routed to New Hampshire. I’m still talking to a crisis counselor. That’s wonderful. But we want to be connected locally. So there is no way that police can be dispatched or somebody can be taken to a hospital. Now, there are situations where the crisis counselor determines a person may be at imminent risk. They may be having thoughts of suicide, and the counselors are trained to look for that, in which case they’ll initiate emergency protocol to try to get the individual to share their location. And it’s less than 2% of contacts that an individual is at imminent risk. And many of those voluntarily share their location. So it’s a lengthy process when they don’t. And that means many minutes where we could lose a life. So it’s a challenging situation, but we know that that location is not available when somebody calls 988. And the intention is very much for this to be an anonymous resource that provides the least invasive intervention.

Rovner: So I’ve also seen concerns about just the lack of resources to back up the call centers, particularly in rural areas. What’s being done to build up the capacity?

Wesolowski: That’s one of the biggest challenges with this. 988 should be the entry point to a crisis continuum of care. When you call 911, you are connected to existing services: law enforcement, fire, EMS. 988 — we’re trying to build that system at the same time this resource is available. Many states already have robust mobile crisis response, which is a behavioral health-based response, rather than relying on law enforcement, which is unfortunately often the response that people see in their communities.

Rovner: And often doesn’t end well.

Wesolowski: Right. Often very tragic and traumatic circumstances — and it doesn’t get people the mental health care that they need. Unfortunately, [in] many communities, that’s still the main option. But more and more communities are getting mobile crisis response online, social workers, peer support specialists, nurses, EMTs, psychologists who staff those and provide a mental health-based response. But it’s much harder in rural areas. It takes longer to get to people. You’re covering a much bigger geographic area. And so that still is a challenge. You know, communities are looking at innovative ways that they can leverage existing emergency response to connect to behavioral health providers, like having law enforcement with iPads so they can leverage telehealth if somebody is in a crisis. But certainly, it’s a challenge and a solution that has to be very localized to the needs of that community.

Rovner: So what still is most needed? I know the law that created 988 also allows states to assess a fee on cellphones to help pay to boost mental health services. Are any states doing that yet?

Wesolowski: We have five states that have passed laws since 2020 to assess a monthly fee on all phone bills. That’s similar to how we fund 911. Everyone across the country already pays a 911 fee. Virginia, Colorado, Nevada, California, and Washington state all currently have legislation that has implemented a small fee on phone bills. It ranges from $0.12 to $0.40 per phone line per month. And that really is helping build out not just the 988 call centers, but that range of crisis services that can respond when somebody needs more help; it can be provided over the phone.

Rovner: Well, it sounds like it’s off to a good start. Hannah Wesolowski, thank you for coming back to update us, and I’m sure we’ll have you back again.

Wesolowski: Thank you so much, Julie. Always a pleasure.

Rovner: OK, we’re back and it’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it; we will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Victoria, why don’t you kick us off this week?

Knight: My extra credit is “Emailing Your Doctor May Carry a Fee.” That’s the name of the article by Benjamin Ryan in The New York Times. So it basically was documenting how doctors practices are starting to charge for sending an email correspondence with a patient. I think we’ve all probably done that, especially during covid. It can be really helpful sometimes when you’re not feeling well and you don’t want to go into the office. But these doctors practices are starting to sometimes charge up to $30, $50 for this, and it’s going to become a new revenue stream for some clinics. And the example they gave in the story was the Cleveland Clinic that was doing this for some people.

Rovner: And the Cleveland Clinic, for people who don’t know, has a lot of patients. It’s a very large organization.

Knight: Yes. Yes, absolutely. So clinics are saying their doctors are spending time on this and so they need to be reimbursed for it. But the critics of this are saying it could discourage people from getting care when they need it. It also could contribute to health inequities, and also can contribute to doctor burnout, because they’re having to now really do these emails to contribute to the revenue stream. So anyway, super interesting, hasn’t happened to me yet, but I hope it doesn’t.

Rovner: The continued tension over doctors getting paid and patients having to pay and insurers having to pay. Rachel.

Roubein: My extra credit, it’s by my colleague, she’s a health and science reporter, Carolyn Y. Johnson, and it’s titled “I Wrote About High-Priced Drugs for Years. Then My Toddler Needed One.” And in her story, she describes her effort of essentially getting lost in the health care system and having to deal with a really complex system to get a pricey medication for her 3-year-old son. So her 3-year-old son was diagnosed with a rare type of childhood arthritis, which can cause young kids to suffer from daily spiking fevers, a fleeting rash, and arthritis. And doctors had recommended a really pricey drug, which required approval from her insurer. Aetna denied the request. In September, doctors wrote another test, which the insurer wanted. The denial was upheld again. She was able to get the medication through a free program offered by the drugmaker, but she was really worried because she was close to using up the last dose. She was calling it the insurer, etc., just really, really often. And, ultimately, the resolution was she was able to get a different high-cost drug that worked in a similar way approved because the request was subject to different rules. And the big-picture point that she makes is that this isn’t a unique story. It’s something that a lot of Americans deal with, a really frustrating, routine process known as prior authorization and step therapy, etc., trying to get coverage of medication that doctors think are needed.

Rovner: And boy, if it takes a professional health reporter that much time and effort to get this, just imagine what people who know less about the system have to go through. It was a really hard piece to read, but very good. Margot.

Sanger-Katz: I wanted to recommend an article from my colleague Amy Schoenfeld Walker called “Most Abortion Bans Include Exceptions. In Practice, Few Are Granted.” And I know that this connects with the abortion discussion that you guys had in the last episode, but I thought what she did was really remarkable. You know, we talk a lot in the political debate about abortion, about exceptions to protect the health of the mother, exceptions for fetuses that cannot survive outside the womb. And, of course, these very politically heated discussions about exceptions for rape and incest. And her article actually looked at the numbers of abortions that are being granted due to these exceptions and states that have them on the books and found that, you know, it’s so minimal that it’s almost not happening at all. If you are a woman who has been raped, if you are a woman who has a really serious health complication in a state where abortion has been banned, you almost always have to travel out of state, despite the existence of these exceptions. And I think this is not a huge surprise. It makes sense that medical providers are scared of getting in trouble when the sanction for being wrong is so high. And also that there aren’t a lot of abortion providers available in states that have banned abortion because there’s no place for them to practice. But I thought she did a really nice job of really putting numbers to this intuition that we all had about what was going to happen and showing how limited access is, and how meaningless in some ways these talking points are that, you know, legislators say that they are providing exceptions, but they’re not actually providing any infrastructure to provide care for the people who qualify.

Rovner: And yet we’re seeing these huge political fights in a lot of states about these exceptions, which, as we now know, don’t actually result in that much in actual practice. Well, my story this week is from Axios by former podcast panelist Caitlin Owens and Victoria here. It’s called “Republicans Break With Another Historical Ally: Doctors,” and it’s about the growing discord between the American Medical Association, long the bastion of male white Republican M.D.s, and Republicans in Congress, particularly Republican M.D.s themselves. The AMA has been moving, I won’t say left, but at least towards the center in recent years, reflecting in large part the changing demographics of the medical profession itself. And if you go back to our podcast of July 21 of last year, you can hear the “not that AMA-like” list of priorities from Jack Resnick, who’s the AMA’s current president. Well, the very conservative Republicans in Congress aren’t too thrilled and are describing the AMA as, quote, “woke” and prioritizing things that lawmakers don’t support, like the right to practice reproductive health according to their medical expertise and to treat teens with gender issues. I never thought I would say it, but it seems the Republicans in the AMA might actually be heading for a divorce. It’s a really great story. You really should read it.

OK. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review — that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Margot?

Sanger-Katz: @sangerkatz

Rovner: Victoria?

Knight: @victoriaregisk

Rovner: Rachel.

Roubein: @rachel_roubein

Rovner: We will be back in your feed next week. Until then, be healthy.

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Julie Rovner is chief Washington correspondent and host of KHN’s weekly health policy news podcast, “What the Health?” A noted expert on health policy issues, Julie is the author of the critically praised reference book “Health Care Politics and Policy A to Z,” now in its third edition.

While repealing the Affordable Care Act seems to have fallen off congressional Republicans’ to-do list for 2023, plans to cut Medicare and Medicaid are back. The GOP wants Democrats to agree to cut spending on both programs in exchange for a vote to prevent the government from defaulting on its debts.

Meanwhile, the nation’s health care workers — from nurses to doctors to pharmacists — are feeling the strain of caring not just for the rising number of insured patients seeking care, but also more seriously ill patients who are difficult and sometimes even violent.

This week’s panelists are Julie Rovner of KHN, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, Tami Luhby of CNN, and Victoria Knight of Axios.

Panelists

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

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Tami Luhby
CNN

@luhby

Read Tami's stories

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Among the takeaways from this week’s episode:

• Conservative House Republicans are hoping to capitalize on their new legislative clout to slash government spending, as the fight over raising the debt ceiling offers a preview of possible debates this year over costly federal entitlement programs like Medicare.
• House Speaker Kevin McCarthy said Republicans will protect Medicare and Social Security, but the elevation of conservative firebrands — like the new chair of the powerful House Ways and Means Committee — raises questions about what “protecting” those programs means to Republicans.
• Record numbers of Americans enrolled for insurance coverage this year under the Affordable Care Act. Years after congressional Republicans last attempted to repeal it, the once highly controversial program also known as Obamacare appears to be following the trajectory of other established federal entitlement programs: evolving, growing, and becoming less controversial over time.
• Recent reports show that while Americans had less trouble paying for health care last year, many still delayed care due to costs. The findings highlight that being insured is not enough to keep care affordable for many Americans.
• Health care workers are growing louder in their calls for better staffing, with a nursing strike in New York City and recent reports about pharmacist burnout providing some of the latest arguments for how widespread staffing issues may be harming patient care. There is bipartisan agreement in Congress for addressing the nursing shortage, but what they would do is another question.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week that they think you should read, too:

Julie Rovner: Roll Call’s “NIH Missing Top Leadership at Start of a Divided Congress,” by Ariel Cohen

Tami Luhby: CNN’s “ER on the Field: An Inside Look at How NFL Medical Teams Prepare for a Game Day Emergency,” by Nadia Kounang and Amanda Sealy

Joanne Kenen: The Atlantic’s “Don’t Fear the Handshake,” by Katherine J. Wu

Victoria Knight: The Washington Post’s “‘The Last of Us’ Zombie Fungus Is Real, and It’s Found in Health Supplements,” by Mike Hume

Also mentioned in this week’s podcast:

The New York Times’ “As France Moves to Delay Retirement, Older Workers Are in a Quandary,” by Liz Alderman

Stat’s “Congressional Medicare Advisers Warn of Higher Drug Prices, Despite New Price Negotiation,” by John Wilkerson

Click to Expand

Episode 280 Transcript

KHN’s ‘What the Health?’Episode Title: As US Bumps Against Debt Ceiling, Medicare Becomes a Bargaining ChipEpisode Number: 280Published: Dec. 19, 2023

Tamar Haspel: A lot of us want to eat better for the planet, but we’re not always sure how to do it. I’m Tamar Haspel.

Michael Grunwald: And I’m Michael Grunwald. And this is “Climavores,” a show about eating on a changing planet.

Haspel: We’re here to answer all kinds of questions. Questions like: Is fake meat really a good alternative to beef? Does local food actually matter?

Grunwald: You can follow us or subscribe on Stitcher, Apple Podcasts, Spotify, or wherever you listen.

Julie Rovner: Hello! Welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 19, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Joanne Kenen: Good morning, everybody.

Rovner: Tami Luhby of CNN.

Tami Luhby: Good morning.

Rovner: And Victoria Knight of Axios.

Victoria Knight: Good morning.

Rovner: So Congress is in recess this week, but there is still plenty of news, so we’ll get right to it. The new Congress is taking a breather for the MLK holiday, having worked very hard the first two weeks of the session. But there’s still plenty going on on Capitol Hill. Late last week, House Republicans leaked to The Washington Post a plan to pay only some of the nation’s bills if the standoff over raising the debt ceiling later this year results in the U.S. actually defaulting. Republicans say they won’t agree to raise the debt ceiling, something that’s been done every couple of years for decades, unless Democrats agree to deep spending cuts, including for entitlement programs like Social Security, Medicare, and Medicaid — why we are talking about this. Democrats say that a default, even a partial one, could trigger not just a crisis in U.S. financial markets, but possibly a worldwide recession. It’s worth remembering that the last time the U.S. neared a default but didn’t actually get there, in 2011, the U.S. still got its credit rating downgraded. So who blinks in this standoff? And, Tami, what happens if nobody does?

Luhby: That’s going to be a major problem for a lot of people. I mean, the U.S. economy, potentially the global economy, global financial markets, but also practical things like Social Security recipients getting their payments and federal employees in the military getting paid, and Treasury bond holders getting their interest payments. So it would be a giant mess. [Treasury Secretary Janet] Yellen last week in her letter to [House Speaker Kevin] McCarthy, signaling that we were going to hit the debt ceiling, likely today, urged Congress to act quickly. But instead, of course, what just happened was they dug their heels in on either side. So, you know, we have the Republicans saying that we can’t keep spending like we are. We don’t have just an unlimited credit card. We have to change our behavior to save the country in the future. And the White House and Senate Democrats saying this is not a negotiable subject. You know, we’ve been here before. We haven’t actually crossed the line before. So we’ll see what happens. But one of the differences is, this year, that McCarthy has a very narrow margin in the House. Any one of his members — this is among the negotiations that he did not want to agree to but had to after 15 rounds of voting for his job — any member can make a motion to vacate the speaker’s chair. And if that happens, then we don’t have to worry about the debt ceiling because we have to worry more about who’s going to be leading the House, because we can’t deal with the debt ceiling until we actually have someone leading the House. So this is going to be even more complicated than in the past.

Rovner: Just to be clear, even if we hit the debt ceiling today, that doesn’t mean we’re going to default, right? I mean, that’s not coming for several months.

Luhby: Right. So Social Security, seniors and people with disabilities, and the military and federal employees don’t have to yet worry about their payments. They’re going to be paid. The Treasury secretary and Treasury Department will take what’s called “extraordinary measures.” They’re mainly just behind-the-scenes accounting maneuvers. They won’t actually hurt anybody. Yellen had said that she expects these extraordinary measures in cash to last at least until early June, although she did warn that the forecast has considerable uncertainty, as does everything around the debt ceiling.

Rovner: So, Victoria, obviously, the sides are shaping up. Is this going to be the big major health fight this year?

Knight: I think it’s going to be one of the big topics that we’re definitely talking about this year in Congress. I think it’s going to be a dramatic year, as we’ve already seen in these first two weeks. My colleagues at Axios, we talked to some Republicans last week, asking them about: Do you actually think they will make cuts to entitlement programs, to Medicare, Medicaid? Is that realistic? It’s kind of a mixed bag. Some are like, yeah, we should look at this, and some are like, we don’t really want to touch it. I think they know it’s really a touchy subject. There are a lot of Medicare beneficiaries that don’t want the age increase. You know, there’s some talk of increasing the age to 67 rather than 65. They know that is a touchy subject. Last week in a press conference, McCarthy said, “We’re Republicans; we’ll protect Medicare and Social Security,” so they know people are talking about this. They know people are looking at it. So I think in a divided government, obviously, the Senate is in Democratic control. I think it seems pretty unlikely, but I think they’re going to talk about it. And we have a new Ways and Means chairman, Jason Smith from Missouri. He’s kind of a firebrand. He’s talked about wanting to do reform on the U.S. spending. So I think it’s something they’re going to be talking about. But I don’t know if that much will actually happen. So we’ll see. I have been talking to Republicans on what else they want to work on this year in Congress. I think a big thing will be PBM [pharmacy benefit managers] reform. It’s a big topic that’s actually bipartisan. So I think that’s something that we’ll see. These are the middlemen in regards to between pharmacies and insurers. And they’re negotiating drug prices. And we know there are going to be hearings on that. I think health care costs. There’s some talk about fentanyl, scheduling. But I think in regards to big health care reform, there probably isn’t going to be a lot, because we are in a divided government now.

Kenen: Just one thing about how people talk about protecting Medicare and Social Security, it doesn’t mean they don’t want to make changes to it. We’ve been through this before. Entitlement reform was the driving force for Republicans for quite a few years under … when Paul Ryan was both, I guess it was budget chair before he was speaker. I mean, that was the thing, right? And he wanted to make very dramatic changes to Medicare, but he called it protecting Medicare. So there’s no one like Ryan with a policy really driving what it should look like. I mean, he had a plan, yet the plan never got through anywhere. It died, but it was an animating force for many years. It went away for a minute in the face of the last 10 years that were about the Affordable Care Act. So I don’t think they’re clear on what they want to do. But we do know some conservative Republicans want to make some kind of changes to Medicare. TBD.

Rovner: And Tami, we know the debt ceiling isn’t the only place where House Republicans are setting themselves up for deep cuts that they might not be able to make while still giving themselves the ability to cut taxes. They finessed some of this in their rules package, didn’t they?

Luhby: Yes, they did. And they made it very clear that they, in the rules, they made it harder to raise taxes. They increased it to a supermajority, 3/5 of the House. They made it easier to cut spending in the debt ceiling and elsewhere. And, you know, the debt ceiling isn’t our only issue that we have coming up. It’s going to be right around the same time, generally, maybe, as the fiscal 2024 budget, which will necessitate discussion on spending cuts and may result in spending cuts and changes possibly to some of our favorite health programs. So we will see. But also just getting back to what we were talking about with Medicare. Remember, the trustees estimate that the trust fund is going to run out of money by 2028. So we’ll see in a couple of months what the latest forecast is. But, you know, something needs to be done relatively soon. I mean … the years keep inching out slowly. So we keep being able to put this off. But at some point …

Rovner: Yeah, we keep getting to this sort of brinksmanship, but nobody, as Joanne points out, ever really has a plan because it would be unpopular. Speaking of which, while cutting entitlement programs here is still just a talking point, we have kind of a real-life cautionary tale out of France, where the retirement age may be raised from 62 to 64, which is still younger than the 67, the U.S. retirement age is marching toward. It seems that an unintended consequence of what’s going on in France is that employers don’t want to hire older workers. So now they can’t get retirement and they can’t find a job. And currently, only half of the French population is still employed by age 62, which is way lower than other members of the European Union. France is looking at protests and strikes over this. Could the same thing happen here, if we might get to that point? It’s been a while since we’ve seen the silver-haired set out on the street with picket signs.

Knight: I think it would be pretty contentious, I think, if they decide to actually raise the age. It’ll be interesting to see [if] there are actual protests, but I think people will be very upset, for sure, especially people reaching retirement age having counted on this. So …

Kenen: They probably wouldn’t do it like … if you’re 62, you wouldn’t [go] to 67. When they’ve talked about these kinds of changes in the past, they’ve talked about phasing it in over a number of years or starting it in the …

Rovner: Right, affecting people in the future.

Kenen: Right.

Rovner: But I’m thinking not just raising the retirement age. I’m thinking of making actual big changes to Medicare or even Medicaid.

Kenen: Well, there’s two things since the last debate about this. Well, first of all, Social Security was raised and it didn’t cause … it was raised slowly, a couple of months at a time over, what, a 20-year period. Is that right? Am I remembering that right, Julie?

Rovner: Yeah, my retirement age is 66 and eight months.

Kenen: Right. So … it used to be 65. And they’ve been going, like, 65 and one month, 65 and two months. It’s crept up. And that was done on a bipartisan basis, which, of course, not a whole lot is looking very bipartisan right now. But I mean, that’s the other pathway we could get. We could get a commission. We could move toward some kind of changes after … last time there was a commission that failed, but the Social Security commission did work. The last Medicare commission did not. The two sides are so intractable and so far apart on debt right now that there’s probably going to have to be some kind of saving grace down the road for somebody. So it could be yet another commission. And also in 2011, 2012, which was the last time there was the big debate over Medicare age, was pre-ACA [Affordable Care Act] implementation. And, you know, if you’re 65 and you’re not working, if they do change the Medicare in the out years, it’s complicated what it would do to the risk pools and premiums and all that. But you do have an option. I mean, the Affordable Care Act would … right now you only get it to Medicare. That would have to be changed. So it’s not totally the same … I’m not advocating for this. I’m just saying it is a slightly different world of options and the chessboard’s a little different.

Rovner: Well, clearly, we are not there yet, although we may be there in the next couple of months. Finally, on the new Congress front. Last week, we talked about some of the new committee chairs in the House and Senate. This week, House Republicans are filling out some of those critical subcommittee chairs. Rep. Andy Harris, a Republican from Maryland who’s also an anesthesiologist who bragged about prescribing ivermectin for covid, will chair the Appropriations subcommittee responsible for the FDA’s budget [the Agriculture, Rural Development, Food and Drug Administration subcommittee]. Things could get kind of interesting there, right?

Knight: Yeah. And there is talk that he wanted to chair the Labor [Health and Human Services, Education] subcommittee, which would have been really interesting. He’s not.

Rovner: Which would’ve been the rest of HHS. We should point out that in the world of appropriations, FDA is with Agriculture for reasons I once tried to figure out, but they go back to the late 1940s. But the rest of HHS is the Labor HHS Appropriations subcommittee, which he won’t chair.

Knight: Right, he is not. Rep. Robert Aderholt is chairing Labor HHS. But this is, as we were talking about, they’re going to have to fund the government. Republicans are talking about wanting to pass 12 appropriations bills. If they actually want to try to do that, they’re going to have to do a lot of negotiations on what goes into the Labor HHS bill, what goes into the AG bill with FDA, with these chairs over the subcommittees, they’re going to want certain things in there. They’re going to maybe want oversight of these agencies, especially in regards to what’s happening with covid, what’s going on with the abortion pills. So I think it’ll be really interesting to see what happens. It seems unlikely they’re actually going to be able to pass 12 appropriations bills, but it’s just another thing to watch.

Rovner: I would point out that every single Congress, Republican and Democrat, comes in saying, we’re going to go back to regular order. We’re going to pass the appropriations bills separately, which is what we were supposed to do. I believe the last time that they passed separately, and that wasn’t even all of them, was the year 2000; it was the last year of President [Bill], it might have been. It was definitely right around then. When I started covering Congress, they always did it all separately, but no more.

Luhby: And they want to pass the debt ceiling vote separately.

Rovner: Right, exactly. Not that much going on this year. All right. Well, last week we talked about health insurance coverage. Now it is official. Obamacare enrollment has never been higher and there are still several weeks to go to sign up in some states, even though enrollment through the federal marketplace ended for the year on Sunday. Tami, have we finally gotten to the point that this program is too big to fail or is it always going to hang by a political thread?

Luhby: Well, I think the fact that we’re all not reporting on the weekly or biweekly enrollment numbers, saying “It’s popular, people are still signing up!” or under the Trump years, “Fewer people are signing up and it’s lost interest.” I think that in and of itself is very indicative of the fact that it is becoming part of our health care system. And I mean, I guess one day I’m not going to write the story that says enrollment opens on Nov. 1, then another one that says it’s ending on Jan. 15.

Rovner: I think we’ll always do that because we’re still doing it with Medicare.

Luhby: Well, but I’m not. So … it’s possible, although now with Medicare Advantage, I think it is actually worth a story. So that’s a separate issue.

Rovner: Yes, that is a separate issue.

Luhby: But yeah, no, I mean, you know, I think it’s here to stay. We’ll see what [District Judge Reed] O’Connor does in Texas with the preventive treatment, but …

Rovner: Yes, there will always be another lawsuit.

Luhby: There will be chips around the edges.

Kenen: I mean, this court has done … we all thought that litigation was over, like we thought, OK, it’s done. They’ve … upheld it, you know, however many times, move on. But this Supreme Court has done some pretty dramatic rulings and not just Roe [v. Wade], on many public health measures, about gun control and the environment and vaccine mandates. And, of course, you know, obviously, Roe. Do I think that there’s going to be another huge existential threat to the ACA arising out of this preventive care thing? No, but we didn’t think a lot of the things that the Supreme Court would do. There’s a real ideological shift in how they approach these issues. So politically, no, we’re not going to see more repeal votes. In the wings could there be more legal issues to bite us? I don’t think it’s likely, but I wouldn’t say never.

Rovner: In other words, just because congressional Republicans aren’t still harping on this, it doesn’t mean that nobody is.

Kenen: Right. But it’s also, I mean, I agree with Tami … I wrote a similar story a year ago on the 10th anniversary: It’s here. They spent a lot of political capital trying to repeal it and they could not. People do rely on it and more … Biden has made improvements to it. It’s like every other American entitlement: It evolves over time. It gets bigger over time. And it gets less controversial over time.

Rovner: Well, we still have problems with health care costs. And this week we have two sort of contradictory studies about health care costs. One from the Centers for Disease Control and Prevention found a three-percentage-point decline in the number of Americans who had trouble paying medical bills in 2021 compared to the pre-pandemic year of 2019. That’s likely a result of extra pandemic payments and more people with health insurance. But in 2022, according to a survey by Gallup, the 38% of patients reported they delayed care because of cost. That was the biggest increase ever since Gallup has been keeping track over the past two decades, up 12 percentage points from 2020 and 2021. This has me scratching my head a little bit. Is it maybe because even though more people have insurance, which we saw from the previous year. Also more have high-deductible health plans. So perhaps they don’t want to go out and spend money or they don’t have the money to spend initially on their health care. Anybody got another theory? Victoria, I see you sort of nodding.

Knight: I mean, that’s kind of my theory is, like, I think they just have high-deductible plans, so they’re still having to pay a lot out-of-pocket. And I know my brother had to get an ACA plan because he is interning for an electrician and — so he doesn’t have insurance on his own, and I know that, like, it’s still pretty high and he just has to pay a lot out-of-pocket. He’s had medical debt before. So even though more people have health insurance, it’s still a huge issue, it doesn’t make that go away.

Rovner: And speaking of high medical prices, we are going to talk about prescription drugs because you can’t really talk about high prices without talking about drugs. Stat News reports this week that some of the members of the Medicare Payment Advisory Committee, or MedPAC, are warning that even with the changes to Medicare that are designed to save money on drugs for both the government and patients — those are ones taking effect this year — we should still expect very high prices on new drugs. Partly that’s due to the new Medicare cap on drug costs for patients. If insurers have to cover even the most expensive drugs, aside from those few whose price will be negotiated, then patients will be more likely to use them and they can set the price higher. Are we ever going to be able to get a handle on what the public says consistently is its biggest health spending headache? Victoria, you kind of previewed this with the talk about doing something about the middlemen, the PBMs.

Knight: Yeah, I think it’s really difficult. I mean, the drug pricing provisions, they only target 20 of the highest-cost drugs. I can’t remember exactly how they determine it, but it’s only 20 drugs and it’s implemented over years. So it’s still leaving out a lot of drugs. We still have years to go before it’s actually going into effect. And I think drugmakers are going to try to find ways around it, raising the prices of other drugs, you’re talking about. And even though they’re hurt by the IRA [Inflation Reduction Act], they’re not completely down and out. So I don’t know what the answer is to rein in drug prices. I think maybe PBM reform, as I said, definitely a bipartisan issue. This Congress … I think will actually have maybe some movement and we’ll see if actually legislation can be passed. But I know they want to talk about it. So, I mean, that could help a little bit. But I think drugmakers are still a huge reason for a lot of these costs. And so it won’t completely go away even if PBMs have some reforms.

Rovner: And certainly the American public sees drug costs as one of the biggest issues just because so many Americans use prescription drugs. So they see every dollar.

Knight: Yes.

Rovner: So the good news is that more people are getting access to medical care. The bad news is that the workforce to take care of them is burned out, angry, and simply not large enough for the task at hand. The people who’ve been most outspoken about that are the nation’s nurses, who’ve given the majority of the care during the pandemic and taken the majority of patient anger and frustration and sometimes even violence. We’re seeing quite a few nurses’ strikes lately, and they’re mostly not striking for higher wages, but for more help. Tami, you talked to some nurses on the picket line in New York last week. What did they tell you?

Luhby: Yeah, I had a fun assignment last week. Since I live in the Bronx, I spent two days with the striking nurses at the Montefiore Medical Center, and there were 7,000 nurses at Mount Sinai Hospital in Manhattan and Montefiore in the Bronx that went on strike for three days. It was a party atmosphere there much of the time, but they did have serious concerns that they wanted to relay and get their word out. There was a lot of media coverage as well. Their main issue was staffing shortages. I mean, the nurses told me about terrible working conditions, particularly in the ER. Some of them had to put babies on towels on the floor of the pediatric ER or tell sick adults that they have to stand because there aren’t even chairs available in the adult ER, much less beds or cots. And every day, they feared for their licenses. One said that she would go to sleep right when she got home because she didn’t want to think about the day because she was concerned she might not want to go back the next day. And she said, heartbreakingly, that she was tired of apologizing to families and patients, that she was stretched too thin to deliver better care, that she was giving patients their medicines late because she had seven other patients she had to give medicine to and probably handle an emergency. So the nurses at Montefiore, interestingly, they’re demanding staffing. But one thing they kept repeating to me, you know, the leaders, was that they wanted enforcement ability of the staffing. They didn’t just want paper staffing ratios, and they wanted to be more involved in recruitment. While the hospitals — interestingly, this is not necessarily over in New York as it probably won’t be elsewhere. These hospitals reached a tentative agreement with the unions, but there’s another battle brewing. The nurses’ contract for the public hospital system expires on March 2, and the union is already warning that will demand better pay and staffing.

Rovner: Yeah. Well, it’s not just the nurses, though. Doctors are burnt out by angry and sometimes ungrateful patients. Doctors in training, too. And I saw one story this week about how pharmacists, who are being asked to do more and more with no more help — a similar story — are getting fried from dealing with short-tempered and sometimes abusive patients. Is there any solution to this, other than people trying to behave better? Is Congress looking at ways to buttress the health care workforce? This is a big problem. You know, they talked about, when they were passing the Affordable Care Act, that if you’re going to give all these people more insurance, you’re going to need more health care professionals to take care of them.

Knight: Yeah.

Rovner: Yet we haven’t seemed to do that.

Knight: Yeah, I know. It’s something that is being talked about. My colleague Peter [Sullivan] at Axios talked to both Sen. [Bernie] Sanders and Sen. [Bill] Cassidy about things they might want to work on on the HELP [Health, Education, Labor & Pensions] Committee. And I know that the nursing workforce shortage is one thing they do actually agree on. So it’s definitely possible. I do think the medical provider workforce shortage is maybe a bipartisan area in this Congress that they could work on. But I mean, they’ve been talking about it forever. And will they actually do something? I’m not sure. So we’ll see. But I know nursing …

Rovner: Yeah, the spirit of bipartisanship does not seem to be alive and well, at least yet, in this Congress.

Knight: Yeah, well, between the House and the Senate. Yeah, well, we’ll see.

Kenen: But the nursing shortage is, I mean, been documented and talked about for many, many years now and hasn’t changed. The doctor shortage is more controversial because there’s some debate about whether it’s numbers of doctors or what specialties they go into. I mean, and, also, do they go to rich neighborhoods or poor neighborhoods? I mean, if you’re in a wealthy suburb, there’s plenty of dermatologists. Right? But in rural areas, certain urban areas … So it’s not just in quantity. It’s also an allocation both by geography and specialty. Some of that Congress could theoretically deal with. I mean, the graduate medical education residency payment … they’ve been talking about reforming that since before half of the people listening to this were born. There’s been no resolution on a path forward. So some of these are things that Congress can nudge or fix with funding. Some of it is just things that have to happen within the medical community, some cultural shift. Also student debt. I mean, one reason people start out saying they’re going to go into primary care and end up being orthopedic surgeons is their debt. So it’s complicated. Some of it is Congress. Not all of it is Congress. But Congress has been talking about this for a very, very, very, very, very long time.

Rovner: I will point out — and Joanne was with me when this happened — when Congress passed the Balanced Budget Act in 1997, they cut the number of residencies that Medicare would pay for with the promise — and I believe this is in the report, if not in the legislation — that they would create an all-payer program to help pay for graduate medical education by the next year, 1998. Well, now it’s 2023, and they never did that.

Kenen: They meant the next century.

Rovner: We’re a fifth — almost a quarter of the way — through the next century, and they still haven’t done it.

Kenen: And if you were on the front lines of covid, the doctors and the nurses, I mean, at the beginning they had no tools. So many people died. They didn’t know how to treat it. There were so many patients, you know, in New York and other places early on. I mean, it was these nurses that were holding iPads so that people could say goodbye to their loved ones. I don’t think any of us can really understand what it was like to be in that situation, not for 10 minutes, but for weeks and over and over …

Rovner: And months and years, in some cases.

Kenen: Right. But I mean, the really bad … it’s years. But these crunches, the really traumatic experiences, I mean, we’ve also talked in the past about the suicide rate among health care providers. It’s been not just physically exhausting, it’s become emotionally unimaginable for those of us who haven’t been in those ICU or ERs.

Rovner: Well, it’s clear that the pandemic experiences have created a mental health crisis for a lot of people. Clearly, people on the front lines of health care, but also lots of other people. This week, finally, a little bit of good news for at least one population. Starting this week, any U.S. military veteran in a mental health crisis can get free emergency care, not just at any VA [Department of Veterans Affairs] facility, but at any private facility as well. They don’t even have to be in the VA health system because many former members of the military are not actually eligible for VA health care. This is for all veterans. It’s actually the result of a law passed in 2020 and signed by then-President [Donald] Trump. How much of difference could this change, at least, make? I mean, veterans in suicidal crises are also, unfortunately, fairly common, aren’t they?

Kenen: Yeah, but I mean, we have a provider shortage, so giving them greater access to a system that doesn’t have enough providers, I mean, will it help? I would assume so. Is it going to fix everything? I would assume not. You know, we don’t have enough providers, period. And there are complicated reasons for that. And that’s also … they’re not all doctors. They’re, you know, psychologists and social workers, etc. But that’s a huge problem for veterans and every human being on Earth right now. I mean, everybody was traumatized. There’s degrees of how much trauma people had, but nobody was untraumatized by the last three years. And the ongoing stresses. You can be well-adjusted traumatized. You could be in-crisis traumatized. But we’re all on that spectrum of having been traumatized.

Knight: Yeah.

Rovner: Well, lots more work to do. OK. That’s the news for this week. Now it is time for our extra-credit segment, where we each recommend a story we read this week we think you should read, too. Don’t worry if you miss it; we will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Victoria, why don’t you go first this week?

Knight: The story that I’m recommending is called “‘The Last of Us’ Zombie Fungus Is Real, and It’s Found in Health Supplements.” It’s in The Washington Post by Mike Hume. “The Last of Us” is a new HBO show everyone’s kind of talking about. And, basically, people become zombies from this fungus. Turns out that fungus is real in real life. It’s spread by insects that basically infect people and then kind of take over their minds and then shoot little spores out. And in the show, they do that as well, except they don’t spread by spores. They spread by bites. But it’s used in health supplements for different things like strength, stamina, immune boost. So it’s kind of just a fun little dive into a real-life fungus.

Rovner: To be clear, it doesn’t turn people into zombies.

Knight: Yes. To be clear, it does not turn people into zombies. If you eat it, that will not happen to you. But it is based on a real-life fungus that does infect insects and make them zombies.

Rovner: Yes. [laughter] It’s definitely creepy. Tami.

Luhby: My story is by my fantastic CNN colleagues this week. It’s called “ER on the Field: An Inside Look at How NFL Medical Teams Prepare for a Game Day Emergency.” It’s by my colleagues Nadia Kounang, Amanda Sealy, and Sanjay Gupta. Listen, I don’t know anything about football, but I happened to be watching TV with my husband when we flipped to the channel with the Bills-Bengals game earlier this month, and we saw the ambulance on the field. So like so many others, I was closely following the story of Damar Hamlin’s progress. What we heard on the news was that the team and the medical experts repeatedly said that it was the care on the field that saved Hamlin’s life. So Nadia, Amanda, and Sanjay provide a rare behind-the-scenes look at how hospital-quality treatment can be given on the field when needed. I learned that — from the story and the video — that there are about 30 medical personnel at every game. All teams have emergency action plans. They run drills an hour before kickoff. The medical staff from both teams review the plan and confirm the details. They station certified athletic trainers to serve as spotters who are positioned around the stadium to catch any injuries. And then they communicate with the medical team on the sidelines. But then — and this is what even my husband, who is a major football fan, didn’t know this — there’s the all-important red hat, which signifies the person who is the emergency physician or the airway physician, who stands along the 30-yard line and takes over if he or she has to come out onto the field. And that doctor said, apparently, they have all the resources available in an emergency room and can essentially do surgery on the field to intubate a player. So I thought it was a fascinating story and video even for non-football fans like me, and I highly recommend them.

Rovner: I thought it was very cool. I read it when Tami recommended it. Although my only question is what happens when there’s a team, one whose color is red and there are lots of people wearing red hats on the sidelines?

Luhby: That’s a good point.

Rovner: I assume they still can find the doctor. OK, Joanne.

Kenen: There was a piece in The Atlantic by Katherine J. Wu called “Covid Couldn’t Kill the Handshake.” It had a separate headline, depending on how you Googled it, saying “Don’t Fear the Handshake.” So, basically, we stopped shaking hands. We had fist bumps and, you know, bows and all sorts of other stuff. And the handshake is pretty much back. And yes, your hands are dirty, unless you’re constantly washing them, your hands are dirty. But they are not quite as dirty as we might think. We’re not quite as dangerous as we may think. So, you know, if you can’t get out of shaking someone’s hand, you probably won’t die.

Rovner: Good. Good to know. All right. My extra credit this week is a story I wish I had written. It’s from Roll Call, and it’s called “NIH Missing Top Leadership at Start of a Divided Congress,” by Ariel Cohen. And it’s not just about not having a replacement for Dr. Tony Fauci, who just retired as the longtime head of the National Institute for Allergy and Infectious Diseases last month, but about having no nominated replacement for Frances Collins, who stepped down as NIH [National Institutes of Health] director more than a year ago. In a year when pressure on domestic spending is likely to be severe, as we’ve been discussing, and when science in general and NIH in particular are going to be under a microscope in the Republican-led House, it doesn’t help to have no one ready to catch the incoming spears. On the other hand, Collins’ replacement at NIH will have to be vetted by the Senate HELP Committee with a new chairman, Bernie Sanders, and a new ranking member, Bill Cassidy. I am old enough to remember when appointing a new NIH director and getting it through the Senate was a really controversial thing. I imagine we are back to exactly that today.

OK. That’s our show for this week. As always, if you enjoyed the podcast, you could subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying, and to our KHN webteam, who have given the podcast a spiffy new page. As always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m still at Twitter, for now, where I’m @jrovner. Tami?

Luhby: I’m @Luhby — L-U-H-B-Y

Rovner: Victoria.

Knight: @victoriaregisk

Rovner: Joanne.

Kenen: @JoanneKenen

Rovner: We will be back in your feed next week. Until then, be healthy.

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AbbVie, which for years has fought off competition for its blockbuster autoimmune drug Humira — the world’s top-selling medicine before Pfizer’s Covid-19 vaccine hit the market — has been the target of congressional hearings and legislation aimed at so-called patent thickets that can stall rival products.

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The federal system meant to stop health care business owners and executives from repeatedly bilking government health programs fails to do so, a KHN investigation has found.

That means people are once again tapping into Medicaid, Medicare, and other taxpayer-funded federal health programs after being legally banned because of fraudulent or illegal behavior.

In large part that’s because the government relies on those who are banned to self-report their infractions or criminal histories on federal and state applications when they move into new jobs or launch companies that access federal health care dollars.

The Office of Inspector General for the U.S. Department of Health and Human Services keeps a public list of those it has barred from receiving any payment from its programs — it reported excluding more than 14,000 individuals and entities since January 2017 — but it does little to track or police the future endeavors of those it has excluded.

The government explains that such bans apply to “the excluded person” or “anyone who employs or contracts with” them. Further, “the exclusion applies regardless of who submits the claims and applies to all administrative and management services furnished by the excluded person,” according to the OIG.

Federal overseers largely count on employers to check their hires and identify those excluded. Big hospital systems and clinics typically employ compliance staff or hire contractors who routinely vet their workers against the federal list to avoid fines.

However, those who own or operate health care businesses are typically not subject to such oversight, KHN found. And people can sidestep detection by leaving their names off key documents or using aliases.

“If you intend to violate your exclusion, the exclusion list is not an effective deterrent,” said David Blank, a partner at Arnall Golden Gregory who previously was senior counsel at the OIG. “There are too many workarounds.”

KHN examined a sample of 300 health care business owners and executives who are among more than 1,600 on OIG’s exclusion list since January 2017. Journalists reviewed court and property records, social media, and other publicly available documents. Those excluded had owned or operated home health care agencies, medical equipment companies, mental health facilities, and more. They’d submitted false claims, received kickbacks for referrals, billed for care that was not provided, and harmed patients who were poor and old, in some cases by stealing their medication or by selling unneeded devices to unsuspecting Medicare enrollees. One owner of an elder care home was excluded after he pleaded guilty to sexual assault.

Among those sampled, KHN found:

• Eight people appeared to be serving or served in roles that could violate their bans;
• Six transferred control of a business to family or household members;
• Nine had previous, unrelated felony or fraud convictions, and went on to defraud the health care system;
• And seven were repeat violators, some of whom raked in tens of millions of federal health care dollars before getting caught by officials after a prior exclusion.

The exclusions list, according to Blank and other experts, is meant to make a person radioactive — easily identified as someone who cannot be trusted to handle public health care dollars.

But for business owners and executives, the system is devoid of oversight and rife with legal gray areas.

One man, Kenneth Greenlinger, pleaded guilty in 2016 to submitting “false and fraudulent” claims for medical equipment his California company, Valley Home Medical Supply, never sent to customers that totaled more than $1.4 million to Medicare and other government health care programs, according to his plea agreement. He was sentenced to eight months in federal prison and ordered to pay restitution of more than $1 million, according to court records. His company paid more than $565,000 to resolve allegations of false claims, according to the Justice Department website.

Greenlinger was handed a 15-year exclusion from Medicare, Medicaid, and any other federal health care program, starting in 2018, according to the OIG.

But this October, Greenlinger announced a health care business with government contracts for sale. Twice on LinkedIn, Greenlinger announced: “I have a DME [durable medical equipment] company in Southern California. We are contracted with most Medicare and Medi-Cal advantage plans as well as Aging in Place payers. I would like to sell,” adding a Gmail address.

Reached by phone, Greenlinger declined to comment on his case. About the LinkedIn post, he said: “I am not affiliated directly with the company. I do consulting for medical equipment companies — that was what that was, written representing my consulting business.”

His wife, Helene, who previously worked for Valley Home Medical Supply, is now its CEO, according to LinkedIn and documentation from the California Secretary of State office. Although Helene has a LinkedIn account, she told KHN in a telephone interview that her husband had posted on her behalf. But Kenneth posted on and commented from his LinkedIn page — not his wife’s.

At Valley Home Medical Supply, a person who answered the phone last month said he’d see whether Kenneth Greenlinger was available. Another company representative got on the line, saying “he’s not usually in the office.”

Helene Greenlinger said her husband may come by “once in a while” but “doesn’t work here.”

She said her husband doesn’t do any medical work: “He’s banned from it. We don’t fool around with the government.”

“I’m running this company now,” she said. “We have a Medicare and Medi-Cal number and knew everything was fine here, so let us continue.”

No Active Enforcement

Federal regulators do not proactively search for repeat violators based on the exclusion list, said Gabriel Imperato, a managing partner with Nelson Mullins in Florida and former deputy general counsel with HHS’ Office of the General Counsel in Dallas.

He said that for decades he has seen a “steady phenomenon” of people violating their exclusions. “They go right back to the well,” Imperato said.

That oversight gap played out during the past two years in two small Missouri towns.

Donald R. Peterson co-founded Noble Health Corp., a private equity-backed company that bought two rural Missouri hospitals, just months after he’d agreed in August 2019 to a five-year exclusion that “precludes him from making any claim to funds allocated by federal health care programs for services — including administrative and management services — ordered, prescribed, or furnished by Mr. Peterson,” said Jeff Morris, an attorney representing Peterson, in a March letter to KHN. The prohibition, Morris said, also “applies to entities or individuals who contract with Mr. Peterson.”

That case involved a company Peterson created called IVXpress, now operating as IVX Health with infusion centers in multiple states. Peterson left the company in 2018, according to his LinkedIn, after the settlement with the government showed a whistleblower accused him of altering claims, submitting false receipts for drugs, and paying a doctor kickbacks. He settled the resulting federal charges without admitting wrongdoing. His settlement agreement provides that if he violates the exclusion, he could face “criminal prosecution” and “civil monetary penalties.”

In January 2020, Peterson was listed in a state registration document as one of two Noble Health directors. He was also listed as the company’s secretary, vice president, and assistant treasurer. Four months later, in April 2020, Peterson’s name appears on a purchasing receipt obtained under the Freedom of Information Act. In addition to Medicare and Medicaid funds, Noble’s hospitals had received nearly $20 million in federal covid relief money.

A social media account with a photo that appears to show Peterson announced the launch of Noble Health in February 2020. Peterson identified himself on Twitter as executive chairman of the company.

It appears federal regulators who oversee exclusions did not review or approve his role, even though information about it was publicly available.

Peterson, whose name does not appear on the hospitals’ Medicare applications, said by email that his involvement in Noble didn’t violate his exclusion in his reading of the law.

He said he owned only 3% of the company, citing OIG guidance — federal regulators may exclude companies if someone who is banned has ownership of 5% or more of them — and he did not have a hand in operations. Peterson said he worked for the corporation, and the hospitals “did not employ me, did not pay me, did not report to me, did not receive instructions or advice from me,” he wrote in a November email.

A 2013 OIG advisory states that “an excluded individual may not serve in an executive or leadership role” and “may not provide other types of administrative and management services … unless wholly unrelated to federal health care programs.”

Peterson said his activities were apart from the business of the hospitals.

“My job was to advise Noble’s management on the acquisition and due diligence matters on hospitals and other entities it might consider acquiring. … That is all,” Peterson wrote. “I have expert legal guidance on my role at Noble and am comfortable that nothing in my settlement agreement has been violated on any level.”

For the two hospitals, Noble’s ownership ended badly: The Department of Labor opened one of two investigations into Noble this March in response to complaints from employees. Both Noble-owned hospitals suspended services. Most employees were furloughed and then lost their jobs.

Peterson said he left the company in August 2021. That’s the same month state regulators cited one hospital for deficiencies that put patients “at risk for their health and safety.”

If federal officials determine Peterson’s involvement with Noble violated his exclusion, they could seek to claw back Medicaid and Medicare payments the company benefited from during his tenure, according to OIG records.

Enforcement in a Gray Zone

Dennis Pangindian, an attorney with the firm Paul Hastings who had prosecuted Peterson while working for the OIG, said the agency has limited resources. “There are so many people on the exclusions list that to proactively monitor them is fairly difficult.”

He said whistleblowers or journalists’ reports often alert regulators to possible violations. KHN found eight people who appeared to be serving or served in roles that could violate their bans.

OIG spokesperson Melissa Rumley explained that “exclusion is not a punitive sanction but rather a remedial action intended to protect the programs and beneficiaries from bad actors.”

But the government relies on people to self-report that they are banned when applying for permission to file claims that access federal health care dollars through the Centers for Medicare & Medicaid Services.

While federal officials are aware of the problems, they so far have not fixed them. Late last year, the Government Accountability Office reported that 27 health care providers working in the federal Veterans Affairs system were on the OIG’s exclusion list.

If someone “intentionally omits” from applications they are an “excluded owner or an owner with a felony conviction,” then “there’s no means of immediately identifying the false reporting,” said Dara Corrigan, director of the center for program integrity at CMS. She also said there is “no centralized data source of accurate and comprehensive ownership” to check for violators.

The OIG exclusion list website, which health care companies are encouraged to check for offenders, notes that the list does not include altered names and encourages those checking it to vet other forms of identification.

Gaps in reporting also mean many who are barred may not know they could be violating their ban because exclusion letters can go out months after convictions or settlements and may never reach a person who is in jail or has moved, experts said. The exclusion applies to federal programs, so a person could work in health care by accepting only patients who pay cash or have private insurance. In its review, KHN found some on the exclusion list who were working in health care businesses that don’t appear to take taxpayer money.

OIG said its exclusions are “based largely on referrals” from the Justice Department, state Medicaid fraud-control units, and state licensing boards. A lack of coordination among state and federal agencies was evident in exclusions KHN reviewed, including cases where years elapsed between the convictions for health care fraud, elder abuse, or other health-related felonies in state courts and the offenders’ names appearing on the federal list.

ProviderTrust, a health care compliance group, found that the lag time between state Medicaid fraud findings and when exclusions appeared on the federal list averaged more than 360 days and that some cases were never sent to federal officials at all.

The NPI, or National Provider Identifier record, is another potential enforcement tool. Doctors, nurses, other practitioners, and health businesses register for NPI numbers to file claims to insurers and others. KHN found that NPI numbers are not revoked after a person or business appears on the list.

The NPI should be “essentially wiped clean” when the person is excluded, precluding them from submitting a bill, said John Kelly, a former assistant chief for health care fraud at the Department of Justice who is now a partner for the law firm Barnes & Thornburg.

Corrigan said the agency didn’t have the authority to deactivate or deny NPIs if someone were excluded.

The Family ‘Fronts’

Repeat violators are all too common, according to state and federal officials. KHN’s review of cases identified seven of them, noted by officials in press releases or in court records. KHN also found six who transferred control of a business to a family or household member.

One common maneuver to avoid detection is to use the names of “family members or close associates as ‘fronts’ to create new sham” businesses, said Lori Swanson, who served as Minnesota attorney general from 2007 to 2019.

Blank said the OIG can exclude business entities, which would prevent transfers to a person’s spouse or family members, but it rarely does so.

Thurlee Belfrey stayed in the home care business in Minnesota after his 2004 exclusion for state Medicaid fraud. His wife, Lanore, a former winner of the Miss Minnesota USA title, created a home care company named Model Health Care and “did not disclose” Thurlee’s involvement, according to his 2017 plea agreement.

“For more than a decade” Belfrey, his wife, and his twin brother, Roylee, made “millions in illicit profits by cheating government health care programs that were funded by honest taxpayers and intended for the needy,” according to the Justice Department. The brothers spent the money on a Caribbean cruise, high-end housing, and attempts to develop a reality TV show based on their lives, the DOJ said.

Federal investigators deemed more than $18 million in claims Model Health Care had received were fraudulent because of Thurlee’s involvement. Meanwhile, Roylee operated several other health care businesses. Between 2007 and 2013, the brothers deducted and collected millions from their employees’ wages that they were supposed to pay in taxes to the IRS, the Justice Department said.

Thurlee, Lanore, and Roylee Belfrey all were convicted and served prison time. When reached for comment, the brothers said the government’s facts were inaccurate and they looked forward to telling their own story in a book. Roylee said he “did not steal people’s tax money to live a lavish lifestyle; it just didn’t happen.” Thurlee said he “never would have done anything deliberately to violate the exclusion and jeopardize my wife.” Lanore Belfrey could not be reached for comment.

Melchor Martinez settled with the government after he was accused by the Department of Justice of violating his exclusion and for a second time committing health care fraud by enlisting his wife, Melissa Chlebowski, in their Pennsylvania and North Carolina community mental health centers.

Previously, Martinez was convicted of Medicaid fraud in 2000 and was excluded from all federally funded health programs, according to DOJ.

Later, Chlebowski failed to disclose on Medicaid and Medicare enrollment applications that her husband was managing the clinics, according to allegations by the Justice Department.

Their Pennsylvania clinics were the largest providers of mental health services to Medicaid patients in their respective regions. They also had generated $75 million in combined Medicaid and Medicare payments from 2009 through 2012, according to the Justice Department. Officials accused the couple of employing people without credentials to be mental health therapists and the clinics of billing for shortened appointments for children, according to the DOJ.

They agreed, without admitting liability, to pay $3 million and to be excluded — a second time, for Martinez — according to court filings in the settlement with the government. They did not respond to KHN’s attempts to obtain comment.

‘Didn’t Check Anything’

In its review of cases, KHN found nine felons or people with fraud convictions who then had access to federal health care money before being excluded for alleged or confirmed wrongdoing.

But because of the way the law is written, Blank said, only certain types of felonies disqualify people from accessing federal health care money — and the system relies on felons to self-report.

According to the DOJ court filing, Frank Bianco concealed his ownership in Anointed Medical Supplies, which submitted about $1.4 million in fraudulent claims between September 2019 and October 2020.

Bianco, who opened the durable medical equipment company in South Florida, said in an interview with KHN that he did not put his name on a Medicare application for claims reimbursement because of his multiple prior felonies related to narcotics.

And as far as he knows, Bianco told KHN, the federal regulators “didn’t check anything.” Bianco’s ownership was discovered because one of his company’s contractors was under federal investigation, he said.

Kenneth Nash had been convicted of fraud before he operated his Michigan home health agency and submitted fraudulent claims for services totaling more than $750,000, according to the Justice Department. He was sentenced to more than five years in prison last year, according to the DOJ.

Attempts to reach Nash were unsuccessful.

“When investigators executed search warrants in June 2018, they shut down the operation and seized two Mercedes, one Land Rover, one Jaguar, one Aston Martin, and a $60,000 motor home — all purchased with fraud proceeds,” according to a court filing in his sentencing.

“What is readily apparent from this evidence is that Nash, a fraudster with ten prior state fraud convictions and one prior federal felony bank fraud conviction, got into health care to cheat the government, steal from the Medicare system, and lavishly spend on himself,” the filing said.

As Kelly, the former assistant chief for health care fraud at the Justice Department, put it: “Someone who’s interested in cheating the system is not going to do the right thing.”

KHN Colorado correspondent Rae Ellen Bichell contributed to this report.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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Casi 1 de cada 7 adultos mayores muere dentro del año después de someterse a una cirugía mayor, según un nuevo estudio que arroja luz sobre los riesgos que enfrentan las personas mayores cuando tienen procedimientos invasivos.

Los pacientes mayores con probable demencia (33% mueren dentro del año) y fragilidad (28%), así como aquellos que se someten a cirugías de emergencia (22%) son los más vulnerables.

La edad avanzada también aumenta el riesgo: los pacientes de 90 años o más tienen seis veces más probabilidades de morir que los de 65 a 69.

El estudio, de investigadores de la Escuela de Medicina de Yale, publicado en JAMA Surgery, aborda una importante brecha: aunque en Estados Unidos los pacientes de 65 años y más representan casi el 40% de todas las cirugías, faltan datos nacionales detallados sobre los resultados de estos procedimientos.

“Como campo, hemos sido realmente negligentes al no comprender los resultados quirúrgicos a largo plazo para los adultos mayores”, dijo la doctora Zara Cooper, profesora de cirugía en la Escuela de Medicina de Harvard y directora del Centro de Cirugía Geriátrica en Brigham and Women’s Hospital de Boston.

La información sobre cuántas personas mayores mueren, desarrollan discapacidades, ya no pueden vivir de forma independiente o tienen una calidad de vida significativamente peor después de una cirugía mayor es crítica.

“Lo que los pacientes mayores quieren saber es: ‘¿cómo será mi vida?'”, dijo Cooper. “Pero no hemos podido responder antes con datos de calidad”.

En el nuevo estudio, el doctor Thomas Gill y sus colegas de Yale examinaron datos de reclamos de Medicare Tradicional y de encuestas del estudio Nacional de Tendencias de Salud y Envejecimiento que abarcan de 2011 a 2017.

Se contabilizaron como cirugías mayores los procedimientos invasivos que se realizan en quirófanos con pacientes bajo anestesia general. Los ejemplos incluyen cirugías para reemplazar caderas rotas, mejorar el flujo sanguíneo en el corazón, extirpar cáncer del colon, extirpar vesículas biliares, reparar válvulas cardíacas y hernias, entre muchas más.

Los adultos mayores tienden a experimentar más problemas después de la cirugía si tienen afecciones crónicas como enfermedades cardíacas o renales; si ya están débiles o tienen dificultad para moverse; si su capacidad para cuidar de sí mismos está comprometida; y si tienen problemas cognitivos, apuntó Gill, profesor de medicina, epidemiología y medicina de investigación en Yale.

Hace dos años, el equipo de Gill realizó una investigación que mostró que 1 de cada 3 adultos mayores no había vuelto a su nivel básico de funcionamiento a los seis meses de una cirugía mayor. Los más propensos a recuperarse fueron los adultos mayores que se sometieron a cirugías electivas para las que podían prepararse con anticipación.

En otro estudio, publicado el año pasado en Annals of Surgery, su equipo encontró que se realizan 1 millón de cirugías mayores en personas de 65 años o más cada año, incluido un número significativo cerca del final de la vida.

“Esto abre todo tipo de preguntas: ¿estas cirugías se hicieron por una buena razón? ¿Cómo se define la cirugía adecuada? ¿Se consideraron las metas del paciente?”, dijo el doctor Clifford Ko, profesor de cirugía en la Escuela de Medicina de UCLA y director de la División de Investigación y Atención Óptima del Paciente en el Colegio Estadounidense de Cirujanos.

Como ejemplo de este tipo de toma de decisiones, Ko describió a un paciente que, a los 93 años, se enteró que tenía cáncer de colon en etapa temprana además de una enfermedad preexistente del hígado, el corazón y los pulmones. Después de una discusión en profundidad y de que se le explicara que el riesgo de malos resultados era alto, el paciente decidió no realizar un tratamiento invasivo.

Pero la mayoría de los pacientes eligen la cirugía. La doctora Marcia Russell, cirujana del Sistema de Atención de Salud del Área de Asuntos de Veteranos de Los Ángeles, describió a un paciente de 90 años que recientemente se enteró de que tenía cáncer de colon durante una internación prolongada por una neumonía.

“Hablamos con él sobre la cirugía y su meta era vivir el mayor tiempo posible”, dijo Russell. Para prepararlo en casa para la futura cirugía, le recomendó que hiciera fisioterapia y comiera más alimentos ricos en proteínas, para fortalecerse.

“Es posible que necesite de seis a ocho semanas para prepararse para la cirugía, pero está motivado para mejorar”, dijo Russell.

Las decisiones que toman las personas mayores acerca de someterse a una cirugía mayor tienen amplias implicaciones sociales.

A medida que crece la población de más de 65 años, “cubrir la cirugía va a ser un desafío fiscal para Medicare”, señaló el doctor Robert Becher, profesor asistente de cirugía en Yale y colaborador de investigación de Gill.

Un poco más de la mitad del gasto de Medicare se deriva a la atención quirúrgica para pacientes hospitalizados y ambulatorios, según un análisis de 2020.

Además, “casi todas las subespecialidades quirúrgicas experimentarán escasez de profesionales en los próximos años”, dijo Becher. Señaló que en 2033 habrá casi 30,000 cirujanos menos de los necesarios para satisfacer la demanda esperada.

Estas tendencias hacen que los esfuerzos por mejorar los resultados quirúrgicos para los adultos mayores sean aún más críticos. Sin embargo, el progreso ha sido lento. El Colegio Estadounidense de Cirujanos lanzó un importante programa de mejora de la calidad en julio de 2019, ocho meses antes de la pandemia de covid-19.

Requiere que los hospitales cumplan con 30 estándares para lograr una experiencia reconocida en cirugía geriátrica. Hasta ahora, están participando menos de 100 de los miles de hospitales elegibles.

Uno de los sistemas más avanzados del país, el Centro de Cirugía Geriátrica del Brigham and Women’s Hospital, ilustra lo que es posible. Allí, se examina a los adultos mayores candidatos y, aquellos a los que se considera frágiles se someten a una evaluación geriátrica exhaustiva y se reúnen con una enfermera que ayudará a coordinar la atención después del alta.

También se evalúa a los seniors tres veces al día en busca de delirio (un cambio agudo en el estado mental que a menudo afecta a los pacientes mayores hospitalizados), y se usan analgésicos no narcóticos. “El objetivo es minimizar los daños de la hospitalización”, dijo Cooper, quien dirige el esfuerzo.

Cooper comentó sobre una paciente a quien describió como una “mujer sociable de poco más de 80 años que todavía usaba jeans ajustados e iba a cócteles”. Esta mujer llegó a la sala de emergencias con diverticulitis aguda y delirio. Se llamó a un geriatra antes de la cirugía para ayudarla a controlar sus medicamentos y su ciclo de sueño y vigilia, y para recomendar intervenciones no farmacéuticas.

Con la ayuda de los miembros de la familia que la atendieron, “ella está muy bien”, dijo Cooper. “Es el tipo de resultado que trabajamos muy duro para lograr”.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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Summaries of the 90 audits, which examined billings from 2011 through 2013 and are the most recent reviews completed, were obtained exclusively by KHN through a three-year Freedom of Information Act lawsuit, which was settled in late September.

The government’s audits uncovered about $12 million in net overpayments for the care of 18,090 patients sampled, though the actual losses to taxpayers are likely much higher. Medicare Advantage, a fast-growing alternative to original Medicare, is run primarily by major insurance companies.

Officials at the Centers for Medicare & Medicaid Services have said they intend to extrapolate the payment error rates from those samples across the total membership of each plan — and recoup an estimated $650 million as a result.

But after nearly a decade, that has yet to happen. CMS was set to unveil a final extrapolation rule Nov. 1 but put that decision off until February.

Ted Doolittle, a former deputy director of CMS’ Center for Program Integrity, which oversees Medicare’s efforts to fight fraud and billing abuse, said the agency has failed to hold Medicare Advantage plans accountable. “I think CMS fell down on the job on this,” said Doolittle, now the health care advocate for the state of Connecticut.

Doolittle said CMS appears to be “carrying water” for the insurance industry, which is “making money hand over fist” off Medicare Advantage. “From the outside, it seems pretty smelly,” he said.

In an email response to written questions posed by KHN, Dara Corrigan, a CMS deputy administrator, said the agency hasn’t told health plans how much they owe because the calculations “have not been finalized.”

Corrigan declined to say when the agency would finish its work. “We have a fiduciary and statutory duty to address improper payments in all of our programs,” she said.

The 90 audits are the only ones CMS has completed over the past decade, a time when Medicare Advantage has grown explosively. Enrollment in the plans more than doubled during that period, passing 28 million in 2022, at a cost to the government of $427 billion.

Seventy-one of the 90 audits uncovered net overpayments, which topped $1,000 per patient on average in 23 audits, according to the government’s records. Humana, one of the largest Medicare Advantage sponsors, had overpayments exceeding that $1,000 average in 10 of 11 audits, according to the records.

CMS paid the remaining plans too little on average, anywhere from $8 to $773 per patient.

Auditors flag overpayments when a patient’s records fail to document that the person had the medical condition the government paid the health plan to treat, or if medical reviewers judge the illness is less severe than claimed.

That happened on average for just over 20% of medical conditions examined over the three-year period; rates of unconfirmed diseases were higher in some plans.

As Medicare Advantage’s popularity among seniors has grown, CMS has fought to keep its audit procedures, and the mounting losses to the government, largely under wraps.

That approach has frustrated both the industry, which has blasted the audit process as “fatally flawed” and hopes to torpedo it, and Medicare advocates, who worry some insurers are getting away with ripping off the government.

“At the end of the day, it’s taxpayer dollars that were spent,” said David Lipschutz, a senior policy attorney with the Center for Medicare Advocacy. “The public deserves more information about that.”

At least three parties, including KHN, have sued CMS under the Freedom of Information Act to shake loose details about the overpayment audits, which CMS calls Risk Adjustment Data Validation, or RADV.

In one case, CMS charged a law firm an advance search fee of $120,000 and then provided next to nothing in return, according to court filings. The law firm filed suit last year, and the case is pending in federal court in Washington, D.C.

KHN sued CMS in September 2019 after the agency failed to respond to a FOIA request for the audits. Under the settlement, CMS agreed to hand over the audit summaries and other documents and pay $63,000 in legal fees to Davis Wright Tremaine, the law firm that represented KHN. CMS did not admit to wrongfully withholding the records.

High Coders

Most of the audited plans fell into what CMS calls a “high coding intensity group.” That means they were among the most aggressive in seeking extra payments for patients they claimed were sicker than average. The government pays the health plans using a formula called a “risk score” that is supposed to render higher rates for sicker patients and lower ones for healthier ones.

But often medical records supplied by the health plans failed to support those claims. Unsupported conditions ranged from diabetes to congestive heart failure.

Overall, average overpayments to health plans ranged from a low of $10 to a high of $5,888 per patient collected by Touchstone Health HMO, a New York health plan whose contract was terminated “by mutual consent” in 2015, according to CMS records.

Most of the audited health plans had 10,000 members or more, which sharply boosts the overpayment amount when the rates are extrapolated.

In all, the plans received $22.5 million in overpayments, though these were offset by underpayments of $10.5 million.

Auditors scrutinize 30 contracts a year, a small sample of about 1,000 Medicare Advantage contracts nationwide.

UnitedHealthcare and Humana, the two biggest Medicare Advantage insurers, accounted for 26 of the 90 contract audits over the three years.

Eight audits of UnitedHealthcare plans found overpayments, while seven others found the government had underpaid.

UnitedHealthcare spokesperson Heather Soule said the company welcomes “the program oversight that RADV audits provide.” But she said the audit process needs to compare Medicare Advantage to original Medicare to provide a “complete picture” of overpayments. “Three years ago we made a recommendation to CMS suggesting that they conduct RADV audits on every plan, every year,” Soule said.

Humana’s 11 audits with overpayments included plans in Florida and Puerto Rico that CMS had audited twice in three years.

The Florida Humana plan also was the target of an unrelated audit in April 2021 by the Health and Human Services inspector general. That audit, which covered billings in 2015, concluded Humana improperly collected nearly $200 million that year by overstating how sick some patients were. Officials have yet to recoup any of that money, either.

In an email, Humana spokesperson Jahna Lindsay-Jones called the CMS audit findings “preliminary” and noted they were based on a sampling of years-old claims.

“While we continue to have substantive concerns with how CMS audits are conducted, Humana remains committed to working closely with regulators to improve the Medicare Advantage program in ways that increase seniors’ access to high-quality, lower cost care,” she wrote.

Billing Showdown

Results of the 90 audits, though years old, mirror more recent findings of a slew of other government reports and whistleblower lawsuits alleging that Medicare Advantage plans routinely have inflated patient risk scores to overcharge the government by billions of dollars.

Brian Murphy, an expert in medical record documentation, said collectively the reviews show that the problem is “absolutely endemic” in the industry.

Auditors are finding the same inflated charges “over and over again,” he said, adding: “I don’t think there is enough oversight.”

When it comes to getting money back from the health plans, extrapolation is the big sticking point.

Although extrapolation is routinely used as a tool in most Medicare audits, CMS officials have never applied it to Medicare Advantage audits because of fierce opposition from the insurance industry.

“While this data is more than a decade old, more recent research demonstrates Medicare Advantage’s affordability and responsible stewardship of Medicare dollars,” said Mary Beth Donahue, president of the Better Medicare Alliance, a group that advocates for Medicare Advantage. She said the industry “delivers better care and better outcomes” for patients.

But critics argue that CMS audits only a tiny percentage of Medicare Advantage contracts nationwide and should do more to protect tax dollars.

Doolittle, the former CMS official, said the agency needs to “start keeping up with the times and doing these audits on an annual basis and extrapolating the results.”

But Kathy Poppitt, a Texas health care attorney, questioned the fairness of demanding huge refunds from insurers so many years later. “The health plans are going to fight tooth and nail and not make this easy for CMS,” she said.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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