The Host

Julie Rovner
KFF Health News

@jrovner

Read Julie's stories.

Julie Rovner is chief Washington correspondent and host of KFF Health News’ 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 Alabama Supreme Court’s groundbreaking ruling last week that frozen embryos have legal rights as people has touched off a national debate about the potential fallout of the “personhood” movement. Already the University of Alabama-Birmingham has paused its in vitro fertilization program while it determines the ongoing legality of a process that has become increasingly common for those wishing to start a family. 

Meanwhile, former President Donald Trump is reportedly leaning toward endorsing a national, 16-week abortion ban. At the same time, former aides are planning a long agenda of reproductive health restrictions should Trump win a second term.

This week’s panelists are Julie Rovner of KFF Health News, Lauren Weber of The Washington Post, Rachana Pradhan of KFF Health News, and Victoria Knight of Axios.

Panelists

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories.

Rachana Pradhan
KFF Health News

@rachanadpradhan

Read Rachana's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

• The Alabama Supreme Court’s decision on embryonic personhood could have wide-ranging implications beyond reproductive health care, with potential implications for tax deductions, child support payments, criminal law, and much more.
• Donald Trump is considering a national abortion ban at 16 weeks of gestation, according to recent reports. It is unclear whether such a ban would go far enough to please his conservative supporters, but it would be far enough to give Democrats ammunition to campaign on it. And some are looking into using a 19th-century anti-smut law, the Comstock Act, to implement a national ban under a new Trump presidency — no action from Congress necessary.
• New reporting from KFF Health News draws on many interviews with clinicians at Catholic hospitals about how the Roman Catholic Church’s directives dictate the care they may offer patients, especially in reproductive health. It also draws attention to the vast number of religiously affiliated hospitals and the fact that, for many women, a Catholic hospital may be their only option.
• Questions about President Joe Biden’s cognitive health are drawing attention to ageism in politics — as well as in American life, with fewer people taking precautions against the covid-19 virus even as it remains a serious threat to vulnerable people, especially the elderly. The mental fitness of the nation’s leaders is a valid, relevant question for many voters, though the questions are also fueled by frustration with a political system in which many offices are held by older people who have been around a long time.

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 “New CMS Rules Will Throttle Access Researchers Need to Medicare, Medicaid Data,” by Rachel M. Werner.

Lauren Weber: The Washington Post’s “They Take Kratom to Ease Pain or Anxiety. Sometimes, Death Follows,” by David Ovalle.

Rachana Pradhan: Politico’s “Red States Hopeful for a 2nd Trump Term Prepare to Curtail Medicaid,” by Megan Messerly.

Victoria Knight: ProPublica’s “The Year After a Denied Abortion,” by Stacy Kranitz and Kavitha Surana.

Also mentioned on this week’s podcast:

• The New York Times’ “Trump Privately Expresses Support for a 16-Week Abortion Ban,” by Maggie Haberman, Jonathan Swan, and Lisa Lerer.
• The New York Times’ “Trump Allies Plan New Sweeping Abortion Restrictions,” by Lisa Lerer and Elizabeth Dias.
• Politico’s “Trump Allies Prepare to Infuse ‘Christian Nationalism’ in Second Administration,” by Alexander Ward and Heidi Przybyla.
• KFF Health News’ “The Powerful Constraints on Medical Care in Catholic Hospitals Across America,” by Rachana Pradhan and Hannah Recht.
• The Washington Post’s “Tax Records Reveal the Lucrative World of Covid Misinformation,” by Lauren Weber.
• KFF Health News’ “Do We Simply Not Care About Old People?” by Judith Graham.
• Stat’s “A Neuropsychologist Clarifies Science on Aging and Memory in Wake of Biden Special Counsel Report,” by Annalisa Merelli.

click to open the transcript

Transcript: Alabama Court Rules Embryos Are Children. What Now?

KFF Health News’ ‘What the Health?’Episode Title: Alabama Court Rules Embryos Are Children. What Now?Episode Number: 335Published: Feb. 22,2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 22, 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 Lauren Weber of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: Victoria Knight of Axios.

Victoria Knight: Hello, everyone.

Rovner: And my KFF Health News colleague Rachana Pradhan.

Rachana Pradhan: Hi, there. Good to be back.

Rovner: Congress is out this week, but there is still tons of news, so we will get right to it. We’re going to start with abortion because there is lots of news there. The biggest is out of Alabama, where the state Supreme Court ruled last week that frozen embryos created for IVF [in vitro fertilization] are legally children and that those who destroy them can be held liable. In fact, the justices called the embryos “extrauterine children,” which, in covering this issue for 40 years, I never knew was a thing. There are lots of layers to this, but let’s start with the immediate, what it could mean to those seeking to get pregnant using IVF. We’ve already heard that the University of Alabama’s IVF clinic has ceased operations until they can figure out what this means.

Pradhan: I think that that is the immediate fallout right now. We’ve seen Alabama’s arguably flagship university saying that they are going to halt. And I believe some of the coverage that I saw, there was even a woman who was about to start a cycle or was literally about to have embryos implanted and had to encounter that extremely jarring development. Beyond the immediate, and of course, Julie, I’m sure we’ll talk about this, a bit about the personhood movement and fetal rights movement in general, but a lot of the country might say, “Oh, well, it’s Alabama. It’s only Alabama.” But as we know it, it really just takes one state, it seems like these days, to open the floodgates for things that might actually take hold much more broadly across the country. So that’s what I’m …

Rovner: It’s funny, the first big personhood push I covered was in 2011 in Mississippi, so next door to Alabama, very conservative state, where everybody assumed it was going to win. And one of the things that the opposition said is that this would ban most forms of birth control and IVF, and it got voted down in Mississippi. So here we are, what, 13 years later. But I mean, I think people don’t quite appreciate how IVF works is that doctors harvest as many eggs as they can and basically create embryos. Because for every embryo that results in a successful pregnancy, there are usually many that don’t.

And of course, couples who are trying to have babies using IVF tend to have more embryos than they might need, and, generally, those embryos are destroyed or donated to research, or, in some cases — I actually went back and looked this up — in the early 2000s there was a push, and it’s still there, there’s an adoption agency that will let you adopt out your unused embryos for someone else to carry to term. And apparently, all of this, I guess maybe not the adoption, but all the rest of this could theoretically become illegal under this Alabama Supreme Court ruling.

Pradhan: And one thing I just want to say, too, Julie, piggybacking on that point too is not just in each cycle that someone goes through with IVF — as you said, there are multiple embryos — but it often takes two people who want to start a family, it often takes multiple IVF cycles to have a successful pregnancy from that. It’s not like it’s a one-time shot, it usually takes a long time. And so you’re really talking about a lot of embryos, not just a one-and-done situation.

Rovner: And every cycle is really expensive. I know lots of people who have both successfully and unsuccessfully had babies using IVF and it’s traumatic. The drugs that are used to stimulate the extra eggs for the woman are basically rough, and it costs a lot of money, and it doesn’t always work. It seems odd to me that the pro-life movement has gotten to the point where they are stopping people who want to get pregnant and have children from getting pregnant and having children. But I guess that is the outflow of this. Lauren, you wanted to add something?

Weber: Yeah, I just wanted to chime in on that. I mean, I think we’re really going to see a lot of potential political ramifications from this. I mean, after this news came down, and just to put in context, the CDC [Centers for Disease Control and Prevention] reported in 2021 that there were 91,906 births via IVF. So that’s almost 92,000 families in 2021 alone. You have a political constituency of hundreds of thousands of parents across the U.S. that feel very strongly about this because they have received children that they paid a lot of money for and worked very hard to get. And it was interesting after this news came down — I will admit, I follow a lot of preppy Southern influencers who are very apolitical and if anything conservative, who all were very aggressively saying, “The only reason I could have my children is through this. We have to make a stand.”

I mean, these are not political people. These are people that are — you could even argue, veering into tradwife [traditional wife] territory in terms of social media. I think we’re really going to see some political ramifications from this that already are reflected in what Donald Trump has recently been reported as feeling about how abortion limits could cost him voters. I do wonder if IVF limits could really cause quite an uproar for conservative candidates. We’ll see.

Rovner: Yeah. Well, Nikki Haley’s already gotten caught up in this. She’s very pro-life. On the other hand, she had one of her children using IVF, which she’s been pretty frank about. She, of course, got asked about this yesterday and her eyes had the deer-in-the-headlights look, and she said, “Well, embryos are children,” and it’s like, “Well, then what about your extra embryos?” Which I guess nobody asked about. But yeah, I mean clearly you don’t have to be a liberal to use IVF to have babies, and I think you’re absolutely right. I want to expand this though, because the ruling was based on this 2018 constitutional amendment approved by voters in Alabama that made it state policy to, quote, “Recognize and support the sanctity of unborn life and the rights of unborn children.”

I should point out that this 2018 amendment did not directly try to create fetal personhood in the way that several states tried — and, as I mentioned, failed — in the 2010s, yet that’s how the Alabama Supreme Court interpreted it. Now, anti-abortion advocates in other states, Rachana, you mentioned this, are already trying to use this decision to apply to abortion bans and court cases there. What are the implications of declaring someone a person at the moment of fertilization? It obviously goes beyond just IVF, right?

Knight: Well, and I think you mentioned already, birth control is also the next step as well. Which basically they don’t want you to have a device that will stop a sperm from reaching an egg. And so I think that could have huge ramifications as well. So many young women across the U.S. use IUDs or other types of birth control. I know that’s one application that people are concerned about. I don’t know if there are others.

Rovner: Yeah, I’ve seen things like, if you’re pregnant, can you now drive in the HOV [high-occupancy vehicle] lane because you have another person?

Pradhan: I think that’s one of the more benign, maybe potential impacts of this. But I mean, if an embryo is a child, I mean it would affect everything from, I think, criminal laws affecting murder or any other … you could see there being criminal law impacts there. I think also, as far as child support, domestic laws, involving families, what would you — presumably maybe not everyone that I imagine who are turning to fertility treatments to start a family or to grow a family may not have a situation where there are two partners involved in that decision. I think it could affect everything, frankly. So much of our tax estate laws are impacted by whether people have children or not, and so …

Rovner: And whether those children have been born yet.

Pradhan: … tax deductions, can you claim an embryo as a dependent? I mean, it would affect everything. So I think they’re very wide, sweeping ramifications beyond the unfortunate consequences that some people might face, as Lauren said, which is that they’re just trying to start a family and now that’s being jeopardized.

Rovner: I think Georgia already has a law that you can take a tax deduction if you’re pregnant. I have been wondering, what happens to birthdays? Do they cease to mean anything? It completely turns on its head the way we think about people and humans, and I mean obviously they say, “Well, yeah, of course it is a separate being from the moment of fertilization, but that doesn’t make it a legal person.” And I think that’s what this debate is about. I did notice in Alabama — of course, what happened, what prompted this case was that some patient in a hospital got into the lab where the frozen embryos were kept and took some out and literally just dropped them on the floor and broke the vial that they were in. And the question is whether the families who belong to those embryos could sue for some kind of recourse, but it would not be considered murder because, under Alabama’s statutes, it has to be a child in utero.

And obviously frozen embryos are not yet in utero, they’re in a freezer somewhere. In that sense it might not be murder, but it could become — I mean, this is something that I think people have been thinking about and talking about obviously for many years, and you wonder if this is just the beginning of we’re going to see how far this can go, particularly in some of the more conservative states. Well, meanwhile, The New York Times reported last week that former President Trump, who’s literally been on just about every side of the abortion debate over the years, is leaning towards supporting a 16-week ban — in part, according to the story, because it’s a round number. Trump, of course, was a supporter of abortion rights until he started running for president as a Republican.

And, in winning the endorsement of skeptical anti-abortion groups in 2016, promised to appoint only anti-abortion judges and to reimpose government restrictions from previous Republican administrations. He did that and more, appointing the three Supreme Court justices who enabled the overturn of Roe v. Wade. But more recently, he’s seen the political backlash over that ruling and the number of states that have voted for abortion rights, including some fairly red states, and he’s been warning Republicans not to emphasize the issue. So why would he fail to follow his own advice now, particularly if it would animate voters in swing states? He keeps saying he’s not in the primaries anymore, that he’s basically running a general-election campaign.

Knight: I mean, I think to me, it seems like he’s clearly trying to thread the needle here. He knows some of the more social conservative of his supporters want him to do something about abortion. They want him to take a stand. And so he decided on allegedly 16 weeks, four months, which is less strict than some states. We saw Florida was 10 weeks. And then some other states …

Rovner: I think Florida is six weeks now.

Knight: Oh, sorry, six weeks. OK.

Rovner: Right. Pending a court decision.

Knight: Yeah. And then other states, in Tennessee, complete abortion ban with little room for exceptions. So 16 weeks is longer than some other states have enacted that are stricter. Roe v. Wade was about 24 weeks. So to me, it seems like he’s trying to find some middle ground to try to appease those social conservatives, but not be too strict.

Rovner: Although, I mean, one of the things that a 16-week ban would not do is protect all the women that we’ve been reading about who are with wanted pregnancies, who have things go wrong at 19 or 20 or 21 weeks, which are before viability but after 16 weeks. Well, unless they had — he does say he wants exceptions, and as we know, as we’ve talked about every week for the last six months, those exceptions, the devil is in the details and they have not been usable in a lot of states. But I’m interested in why Trump, after saying he didn’t want to wade into this, is now wading into this. Lauren, you wanted to add something?

Weber: Yeah, I wanted to echo your point because I think it’s important to note that 16 weeks is not based, it seems like, on any scientific reason. It sounds like to me, from what I understand from what’s out there, that 20 weeks is more when you can actually see if there’s heart abnormalities and other issues. So it sounds like from the reporting the Times did, was that he felt like 16 weeks was good as,  quote, “It was a round number.” So this isn’t exactly, these weak timing of bans, as I’m sure we’ve discussed with this podcast, are not necessarily tied towards scientific development of where the fetus is. So I think that’s an important thing to note.

Rovner: Yes. Rachana.

Pradhan: I mean, I think, and we’ve talked about this, but it’s the perennial danger in weighing in on any limit, and certainly a national limit, but any limit at all, is that 16 weeks, of course as the anti-abortion movement and I think many more people know now, the CDC data shows that the vast majority of abortions annually occur before that point in pregnancy. And so there are, of course, some anti-abortion groups that are trying to thread the needle and back a more middle-ground approach such as this one, 15 weeks, 16 weeks, banning it after that point. But for many, it’s certainly not anywhere good enough. And I think if you’re going to try to motivate your conservative base, I still have a lot of questions about whether they would find that acceptable. And I think it depends on how they message it, honestly.

If they say, “This is the best we can do right now and we’re trying,” that might win over some voters. But on the flip side, it’s still enough for Democrats to be able to run with it and say any national ban obviously is unacceptable to them, but it gives them enough ammunition, I think, to still say that former President Trump wants to take your rights away. And I think, as Lauren noted, genetic testing and things these days of course can happen and does happen before 16 weeks. So there might be some sense of whether there might be, your child has a lethal chromosomal disorder or something like that, that might make the pregnancy not viable. But the big scan that happens about midway through pregnancy is around 20 weeks, and that’s often when you, unfortunately, some people find out that there are things that would make it very difficult for their baby to survive so …

Rovner: Well, it seems that no matter what Trump does or says he will do if he’s elected in November, it’s clear that people close to him, including former officials, are gearing up for a second term that could go way further than even his very anti-abortion first term. According to Politico, a plan is underway for Trump to govern as a, quote, “Christian nationalist nation,” which could mean not just banning abortion, but, as Victoria pointed out, contraception, too, or many forms of contraception. A separate planning group being run out of the Heritage Foundation is also developing far-reaching plans about women’s reproductive health, including enforcement of the long-dormant 19th century Comstock Act, which we have talked about here many times before. But someone please remind us what the Comstock Act is and what it could mean.

Weber: I feel like you’re the expert on this. I feel like you should explain it.

Rovner: Oh boy. I don’t want to be the expert on the Comstock Act, but I guess I’ve become it. It’s actually my favorite tidbit about the Comstock Act is that it is not named after a congressman. It is named after basically an anti-smut crusader named Anthony Comstock in the late 1800s. And it bans the mailing of, I believe the phrase is “lewd or obscene” information, which in the late 1880s included ways to prevent pregnancy, but certainly also abortion. When the Supreme Court basically ruled that contraception was legal, which did not happen until the late 1960s — and early 1970s, actually —, the Comstock Act sort of ceased to be. And obviously then Roe v. Wade, it ceased to be.

But it is still in the books. It’s never been officially repealed, and there’s been a lot of chatter in anti-abortion movements about starting to enforce it again, which could certainly stop if nothing else, the distribution of the abortion pill in its tracks. And also it’s anything using the mail. So it could not just be the abortion pill, but anything that doctors use to perform abortions or to make surgical equipment — it seems that using Comstock, you could implement a national ban without ever having to worry about Congress doing anything. And that seems to be the goal here, is to do as much as they can without even having to involve Congress. Yes.

Pradhan: Julie, I’m waiting for the phrase “anti-smut crusader” to end up on a campaign sign or bumper sticker, honestly. I feel like we might see it. I don’t think this election has gotten nearly weird enough yet. So we still have nine months to go.

Rovner: Yeah. I’m learning way more about the Comstock Act than I really ever wanted to know. But meanwhile, Rachana, it does not take state or federal action to restrict access to reproductive health care. You have a story this week about the continuing expansion of Catholic hospitals and what that means for reproductive health care. Tell us what you found.

Pradhan: Well, yes, I would love to talk about our story. So myself and my colleague Hannah Recht, we started reporting the story, just for background, before the Supreme Court’s Dobbs decision, obviously anticipating that that is what was going to happen. And our story really digs into, based on ample interviews with clinicians, other academic experts, reading lots of documents about what the ethical and religious directives for Catholic health care services, which is what all, any health facility, a hospital, a physician’s office, anything that deems itself Catholic, has to abide by these directives for care, and they follow church teaching. Which we were talking about fertility treatments and IVF earlier actually, so in vitro fertilization is also something that the Catholic Church teaches is immoral. And so that’s actually something that they oppose, which many people may not know that.

But other things that the ERDs [ethical and religious directives] so to speak, impact are access to contraception, access to surgeries that would permanently prevent pregnancy. So for women that would be removing or cinching your fallopian tubes, but also, for men, vasectomies. And then, of course, anything that constitutes what they would call a direct abortion. And that affects everything from care for ectopic pregnancies, how you can treat them, to managing miscarriages. The lead story or anecdote in our story is about a nurse midwife who I spoke with, who used to work at a Catholic hospital in Maryland and talked to me about, relayed this anecdote about, a patient who was about 19 or 20 weeks pregnant and had her water break prematurely.

At that point, her fetus was not viable and that patient did not want to continue her pregnancy, but the medical staff there, what they would’ve done is induce labor with the intent of terminating the pregnancy. And they were unable to do that because of ERDs. And so, we really wanted to look at it systemically, too. So we looked at that combined with state laws that protect, shield hospitals from liability when they oppose providing things like abortions or even sterilization procedures on religious grounds. And included fresh new data analysis on how many women around the country live either nearby to a Catholic hospital or only have Catholic hospitals nearby. So we thought it was important.

Rovner: That’s a little bit of the lead because there’s been so much takeover of hospitals by Catholic entities over the last, really, decade and a half or so, that women who often had a choice of Catholic hospital or not Catholic hospital don’t anymore. That Catholic hospital may be the only hospital anywhere around.

Pradhan: Right and if people criticize the story, which we’ve gotten some criticism over it, one of the refrains we’ll hear is, “Well, just go to a different hospital.” Well, we don’t live in a country where you can just pick any hospital you want to go to — even when you have a choice, insurance will dictate what’s in-network versus what’s not. And honestly, people just don’t know. They don’t know that a hospital has a religious affiliation at all, let alone that that religious affiliation could impact the care that you would receive. And so there’s been research done over the years showing the percentage of hospital beds that are controlled by Catholic systems, et cetera, but Hannah and I both felt strongly that that’s a useful metric to a point, but beds is not relatable to a human being. So we really wanted to boil it down to people and how many people we’re talking about who do not have other options nearby. How many births occur in Catholic hospitals so that you know those people do not have access to certain care if they deliver at these hospitals, that they would have in other places.

Rovner: It’s a continuing story. We’ll obviously post the link to it. Well, I also want to talk about age this week. Specifically the somewhat advanced age of our likely presidential candidates this year. President [Joe] Biden, currently age 81, and former President Trump, age 77. One thing voters of both parties seem to agree on is that both are generically too old, although voters in neither party seem to have alternative candidates in mind. My KFF Health News colleague Judy Graham has a really interesting piece on increasing ageism in U.S. society that the seniors we used to admire and honor we now scorn and ignore. Is this just the continuing irritation at the self-centeredness of the baby boomers or is there something else going on here that old people have become dispensable and not worth listening to? I keep thinking the “OK, boomer” refrain. It keeps ringing in my ears.

Weber: I mean, I think there’s a mix of things going on here. I mean, her piece was really fascinating because it also touched upon the fact — which all of us here reported on; Rachana and I wrote a story about this back in 2021 — on how nursing homes really have been abandoned to some extent. I mean, folks are not getting the covid vaccine. People are dying of covid, they die of the flu, and it’s considered a way of life. And there is almost an irritation that there would be any expectation that it would be any differently because it’s a “Don’t infringe upon my rights” thought. And I do think her piece was fascinating because it asks, “Are we really looking at the elderly?”

I mean, I think that’s very different when we talk about politicians. I mean, the Biden bit is a bit different. I mean, I think there is some frustration in the American populace with the age of politicians. I think that reached a bit of a boiling point with the Sen. [Dianne] Feinstein issue, that I think is continuing to boil over in the current presidential election. But that said, we’re hurtling towards an election with these two folks. I mean, that’s where we’re at. So I think they’re a bit different, but I do think there is a national conversation about age that is happening to some degree, but is not happening in consideration to others.

Well, I was going to say, I think the other aspect is that these people are in the public all the time, or they’re supposed to be. President Biden is giving speeches. Potential candidate President Trump, GOP main candidate, he’s in the spotlight all the time, too. And so you can actually see when they mess up sometimes. You can see potentially what people are saying is signs of aging. And so I think it’s different when they’re literally in front of your eyes and they’re supposed to be making decisions about the direction of this country, potentially. So I think it’s somewhat a valid conversation to have when the country is in their hands.

Rovner: Yeah, and obviously the presidency ages you. [Barack] Obama went in as this young, strong-looking guy and came out with very gray hair, and he was young when he went in. Bill Clinton, too, was young when he was elected and came out looking considerably older. And so Biden, if people have pointed out, looks a lot older now than he did when he was running back in 2020. But meanwhile, despite what voters and some special councils think — including the one who said that Biden was what a kindly old man with a bad memory — neuroscientists say that it’s actually bunk that age alone can determine how mentally fit somebody is, and that even if memory does start to decline, judgment and wisdom may improve as you age. Why is nobody in either party making this point? I mean, the people supporting Biden are just saying that he’s doing a good job and he deserves to continue doing a good job. I mean, talk about the elephant in the room and nobody’s talking about it at all with Trump.

Pradhan: Yeah, I mean, I think probably the short answer is that it’s not really as politically expedient to talk about those things. I thought it was really interesting. Yeah, I really appreciated Stat News had this really interesting Q&A article. And then also there was this opinion piece in The New York Times that, this line struck me so much about, again, both about Biden’s age and his memory. And this line I thought was so fascinating because it just is telling how people’s perceptions can change so much depending on the discourse. So it pointed out that Joe Biden is the same age as Harrison Ford, Paul McCartney, Martin Scorsese. He’s younger than Berkshire Hathaway CEO Warren Buffett, who is considered to be one of the shrewdest and smartest investors, I think, and CEOs of modern times. And no one is saying, “Well, they’re too old to be doing their jobs” or anything. I’m not trying to suggest that people who have concerns about both candidates’ age[s] are not valid, but I think we sometimes have to double-check why we might be being led to think that way, and when it’s not really the same standards are not applied across the board to people who are even older than they are.

Rovner: I do think that some of the frustration, I think, Lauren, you mentioned this, is that in recent years, the vast majority of leadership positions in the U.S. government have been held by people who are, shall we say, visibly old. I mean Nancy Pelosi is still in Congress, but she at least figured out that she needed to step down from being speaker because I think the three top leaders in the House were all in their either late 70s or early 80s. The Senate has long been the land of very old people because you get elected to a six-year term. I mean, Chuck Grassley is 90 now, is he not? Feinstein wasn’t even, I don’t think, the oldest member of the Senate. So I think it’s glaring and staring us in the face. Rachana, you wanted to add something before we moved on.

Pradhan: Well, I think probably, and a lot of that too is just I think probably a reflection of voters’ broader gripes or concerns about the fact that we have people who hold office for an eternity, to not exaggerate it. And so people want to see new leadership, new energy, and when you have public officeholders who hold these jobs for … they’re career politicians, and I think that that is frustrating to a lot of people. They want to see a new generation, even regardless of political party, of ideas and energy. And then when you have these octogenarians holding onto their seats and run over and over and over again, I think that that’s frustrating. And people don’t get energized about those candidates, especially when they’re running for president. They just don’t. So it’s a reflection of just, I think, broader concerns.

Knight: And I think one more thing too was, I mean, Sen. Feinstein died while she was in office. I mean, people also may be referencing Ruth Bader Ginsburg on the Supreme Court, and it’s the question of, should you be holding onto a position that you may die in it, and not setting the way for the new person to take over and making that path available for the next people? Is that the best way to lead in whatever position you’re in? I think, again, Rachana said that’s frustrating for a lot of people.

Rovner: And I think what both parties have been guilty of, although I think Democrats even more than Republicans, is preparing people, making sure that that next generation is ready, that you don’t want to go from these people with age and wisdom and experience to somebody who knows nothing. You need those people coming up through the ranks. And I think there’s been a dearth of people coming up through the ranks lately, and I think that’s probably the big frustration.

Pradhan: I’m not sure if this is still true now, but I certainly remember, I think when Paul Ryan was speaker of the House, I remember the average age of the House Republican conference was significantly younger than that of Democrats. And they would highlight that. They would say, “Look, we are electing a new generation of leaders and look at these aging Democrats over here.” And that might still be true, but I certainly remember that that was something that they tried to capitalize on, oh-so-long ago.

Rovner: As we talked about last week, there are now a lot of those not-so-young Republicans, but not really old, who are just getting out because it is no fun anymore to be in Congress. Which is a good segue because … oh, go ahead.

Knight: Oh, I was just saying one thing Republicans do do in the House, at least they do have term limits on the chairmanships to ensure people do not hold onto those leadership positions forever. And Democrats do not have that. That’s at least in the House.

Rovner: But then you get the expertise walking out the door. It’s a double-edged sword.

Knight: Which is, not all the ones that are leaving have reached their term limits, which is the interesting thing actually. But yes, that expertise can walk out the door.

Rovner: Well, speaking of Congress, here in Washington, as I mentioned at the top, Congress is in recess, but when they come back, they will have I believe it is three days before the first raft of temporary spending bills expire. Victoria, is this the time that the government’s going to actually shut down, or are we looking at yet another round of short-term continuing resolutions? And at some point automatic cuts kick in, right?

Knight: Yeah, the eternal question that we’ve had all of this Congress, I think both sides do not want to shut down. I saw some reporting this morning that was saying [Senate Majority Leader] Chuck Schumer is talking to [House Speaker] Mike Johnson, but he also, Schumer did not want to commit to a CR [continuing resolution] yet either. So it’s possible, but we said that every time and they’ve pulled it off. I think they just know a shutdown is so, not even maybe necessarily politically toxic, but potentially —because I don’t know how much the public understands what that means …

Rovner: Because they don’t understand who’s at fault.

Knight: Right. Who’s at fault …

Rovner: … when it does shut down. They just know that the Social Security office is closed.

Knight: Right, but I just know they know it’s dysfunctional or it just can make things messy when that happens; it’s harder for agencies and things like that. So we’ll see. So the deadline is next Friday for the first set of bills. It’s just four bills then, and then the next deadline is March 8 for the other eight bills. There’s some talk that we may see a package over the weekend, but it’s Mike Johnson’s deciding moment. Again, he’s getting pressure from the House Freedom Caucus to push for either spending cuts or policy riders that include anti-abortion riders, anti-gender-affirming care, a lot. There’s a whole list of things that they sent yesterday they want in bills, and so he’s going to have to …

Rovner: Culture wars is the shorthand for a lot of those.

Knight: Yes, exactly. And so House Freedom Caucus sent a letter yesterday, and so Mike Johnson’s going to have to decide does he want to acquiesce to any House Freedom Caucus demands or does he want to work? But if he doesn’t want to do that, then he’s going to have to pass any funding bills with Democratic votes because he does not have enough votes with the Republicans alone, if Freedom Caucus people and people aligned in that direction don’t vote for any funding bills. If he does that, if he works with Democrats, then there is talk that they might file a motion to vacate him out of the speakership. So it’s the same problem that Kevin McCarthy had. The one thing going for Johnson is that he doesn’t have the baggage that Kevin McCarthy had, a lot of political baggage. A lot of people had ill will towards him, just built up over the years. Johnson doesn’t seem to have that as much, and also Republicans, do they want to be leadership-less again?

Rovner: Because that worked so well the first two times.

Knight: Right, so he has got to decide again who he wants to work with. And it doesn’t seem like we know yet how that’s going to go, and that will determine whether the government shuts down or not.

Rovner: But somebody also reminded me that on April 1, if they haven’t done full-year funding, that automatic cuts kick in. I had forgotten that. So I mean, they can’t just keep rolling these deadlines indefinitely. This presumably is the last time they can roll a deadline without having other ramifications.

Knight: Absolutely. And Freedom Caucus, actually, I think that’s partly why they don’t want to agree to something, because they want the 1% cuts across the board. So that was part of the deal made last year under Kevin McCarthy was, if they don’t come up with full funding bills by April 1, there will be a 1% cut put into place. And so the more hard-liners [are] like, “Great, we’re going to cut funding, so we want to do that.” And then Democrats don’t want that to happen. And so yeah, it’s the last time that they can potentially do a CR before that.

Rovner: Yeah, just a reminder, for those who are not keeping track, that April 1 is six months, halfway through the fiscal year for them to have not finished the fiscal year spending bills.

Knight: And one more note is that usually they’re starting on this coming year spending bills by this point in Congress. So we’re still working on FY24 bills. We should be working on FY25 bills already. So they’re already behind. It’s dysfunctional.

Rovner: I think it’s fair to say the congressional budget process has completely broken down. Well, moving on to “This Week in Medical Misinformation,” we have a case of doing well by doing no good. Lauren, tell us about your story looking into the profits that accrued to anti-vaccine and anti-science groups during the pandemic.

Weber: So I took a look at a bunch of tax records, and what I found is that four major nonprofits that rose to prominence during the covid pandemic by capitalizing on the spread of misinformation collectively gained more than $118 billion from 2020 to 2022. And were able to deploy that money to gain influence in statehouses, courtrooms, and communities across the country. And it’s a pretty staggering figure to tabulate all together. And what was particularly interesting is there was four of these different groups that I was directed to look at by experts in the field, and one of them includes Children’s Health Defense, which was founded by Robert F. Kennedy Jr., and they received, in 2022, $23.5 million in contributions, grants, and other revenue. That was eight times what they got before the pandemic. And that kind of story was reflected in these other groups as well. And it just shows that the fair amount of money that they were able to collect during this time as they were promoting content and other things.

Rovner: Yeah, I mean literally misinformation pays. While we’re on this subject, I would also note that this week there’s a huge multinational study of 99 million people vaccinated against covid that confirmed previous studies showing an association between being vaccinated and developing some rare complications. But a number of stories, at least I thought, overstated the risks of the study that it actually identified. Most failed to include the context that almost every vaccine has the possibility of causing adverse reactions in some very small number of people. The question of course, when you’re evaluating vaccines, is if the benefit outweighs the benefit of protecting against whatever this disease or condition outweighs the risk of these rare side effects.

I would also point out that this is why the U.S. actually has something called the [National] Vaccine Injury Compensation Program, which helps provide for people, particularly children, who experience rare complications to otherwise mandatory vaccines. Anyway, that is the end of my rant. I was just frustrated by the idea that yes, yes, we know vaccines sometimes have side effects. That’s the nature of vaccines. That’s one of the reasons we study them.

All right, anyway, that is the news for this week. Now it is 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Victoria, why don’t you go first this week?

Knight: So my extra credit this week is a story in ProPublica called “The Year After a Denied Abortion.” It’s by [photographer] Stacy Kranitz and [reporter] Kavitha Surana. And it was a very moving photo essay and story about a woman who was denied an abortion in Tennessee literally weeks to a month after Roe v. Wade was overturned in June 2022, and this was in July 2022. She got pregnant and was denied an abortion. And so it followed her through the next year of her life after that happened. And in Tennessee, it’s one of the strictest abortion bans in the nation. Abortion is banned and there are very rare exceptions. And so this woman, Mayron Michelle Hollis, she already had some children that had been taken out of her care by the state, and so she was already fighting custody battles and then got pregnant. And Tennessee is also a state that doesn’t have a very robust safety-net system, so it follows her as she has a baby that’s born prematurely, has a lot of health issues, doesn’t have a lot of state programs to help her.

She was afraid to go through unemployment because she had had issues with that before. The paperwork situation’s really tough. There’s just so much stress involved also with the situation. She eventually ends up kind of relapsing, starting drinking too much alcohol, and she ends up in jail at the end of the story. And so it just talks about how if there is not a robust safety net in a state, if you’re kind of forced to have a pregnancy that you maybe are not able to take care of, it can be really tough financially and psychologically and tough for the mother and the child. So it was a really moving story and there were photos following her through that year.

Rovner: Lauren.

Weber: I wanted to shout out my colleague who I actually sit next to, David Ovalle, who is wonderful at The Washington Post. He wrote an article called “They Take Kratom to Ease Pain or Anxiety. Sometimes, Death Follows.” And, as our addiction reporter for the Post, he did a horribly depressing but wonderful job actually calculating how many kratom deaths or deaths associated with kratom have happened in recent years. And what he found through requests is that at least 4,100 deaths in 44 states and D.C. were linked to kratom between 2020 and 2022, which is public service journalism at its best. I mean, I think people are clear that there is more risks with this, but I think that it’s emerging actually how those risks are. And he catalogs through the hard numbers, which is often what it requires for folks to pay attention, that this is something that is interactive with other medications which is causing death, in some cases, on death certificates. So pretty moving story, he talked to a lot of the families of folks that have died and it really makes you wonder about the state of regulation around kratom.

Rovner: Yeah, and then, I mean, all food diet supplements that are basically unregulated by the FDA because Congress determined in the 1990s that they should be unregulated because the supplement industry lobbied them very heavily and we will talk about that at some other time. Rachana.

Pradhan: My extra credit is a story in Politico by Megan Messerly. It’s titled “Red States Hopeful for a 2nd Trump Term Prepare to Curtail Medicaid.” The short version is work requirements are in, again. There was an effort previously that Republicans wanted to impose employment as a condition of receiving Medicaid benefits, and then they were very quickly, a couple of states, were sued. Only one program really got off the ground, Arkansas. And what happened as a result is because of the paperwork burdens and other things, thousands of people lost coverage. So currently the Biden administration, of course, is not OK at all with tying any type of work, volunteer service, you name it, to Medicaid benefits. But I think Republicans would be — the story talks about how Republicans would be eager to go and pursue that policy push again and curtail enrollment as a result of that.

So I thought that was, it’s an interesting political story. One thing it did make me wonder though, just as an aside is, there’s also been discussion on the flip side, the states in the story, which focus on South Dakota and Louisiana, states that many of them have already expanded coverage to cover the ACA [Affordable Care Act] population, but there are also still states that have not expanded Medicaid under the ACA’s income thresholds. And those conservative states might find it slightly more palatable to do so if you allow them to impose these types of conditions on the program. And so I think we will see what happens.

Rovner: Although, as we talked about not too long ago, Georgia, one of the states that has not expanded Medicaid under the Affordable Care Act now has a work requirement for Medicaid. And they’ve gotten something in the neighborhood, I believe, of like 2,700 people who’ve signed up out of a potential 100,000 people who could be covered if they actually expanded Medicaid. So another space that we will watch.

Well, my extra credit this week is from Stat News and, warning, it’s super nerdy. It’s called “New CMS Rules Will Throttle Access Researchers Need to Medicare, Medicaid Data.” It’s by Rachel Werner, who’s a physician researcher at the University of Pennsylvania, and it’s about a change recently announced by the Centers for Medicare & Medicaid Services that will make it more difficult and more expensive for researchers to work with the program’s data, of which there is a lot. Since the new policy was announced earlier this month, according to CMS, in response to an increase in data breaches, I’ve heard from a lot of researchers who are worried that critical research won’t get done and that new researchers won’t get trained if these changes are implemented because only certain people will have access to the data because you’ll have to pay every time somebody else gets access to the data. Again, it’s an incredibly nerdy issue, but also really important. So the department is taking comment on this and we’ll see if they actually follow through.

OK, that is our show. 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 technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner. Rachana, where are you?

Pradhan: Still on X, hanging on, @rachanadpradhan.

Rovner: Victoria.

Knight: I’m also on X @victoriaregisk.

Rovner: Lauren?

Weber: Still on X @LaurenWeberHP.

Rovner: I think people have come sort of slithering back. 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 KFF Health News’ 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.

A federal judge in Texas has turned back the first challenge to the nascent Medicare prescription-drug negotiation program. But the case turned on a technicality, and drugmakers have many more lawsuits in the pipeline.

Meanwhile, Congress is approaching yet another funding deadline, and doctors hope the next funding bill will cancel the Medicare pay cut that took effect in January.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Lauren Weber of The Washington Post.

Panelists

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

• Rep. Cathy McMorris Rodgers (R-Wash.), chair of the powerful House Energy and Commerce Committee, announced she would retire at the end of the congressional session, setting off a scramble to chair a panel with significant oversight of Medicare, Medicaid, and the U.S. Public Health Service. McMorris Rodgers is one of several Republicans with significant health expertise to announce their departures.
• As Congress’ next spending bill deadline approaches, lobbyists for hospitals are feverishly trying to prevent a Medicare provision on “site-neutral” payments from being attached.
• In abortion news, anti-abortion groups are joining the call for states to better outline when life and health exceptions to abortion bans can be legally permissible.
• Senate Finance Chairman Ron Wyden (D-Ore.) is asking the Federal Trade Commission and the Securities and Exchange Commission to investigate a company that collected location data from patients at 600 Planned Parenthood sites and sold it to anti-abortion groups.
• And in “This Week in Health Misinformation”: Lawmakers in Wyoming and Montana float bills to let people avoid getting blood transfusions from donors who have been vaccinated against covid-19.

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

Julie Rovner: Stateline’s “Government Can Erase Your Medical Debt for Pennies on the Dollar — And Some Are,” by Anna Claire Vollers.

Alice Miranda Ollstein: Politico’s “‘There Was a Lot of Anxiety’: Florida’s Immigration Crackdown Is Causing Patients to Skip Care,” by Arek Sarkissian.

Rachel Cohrs: Stat’s “FTC Doubles Down in Welsh Carson Anesthesia Case to Limit Private Equity’s Physician Buyouts,” by Bob Herman. And Modern Healthcare’s “Private Equity Medicare Advantage Investment Slumps: Report,” by Nona Tepper.

Lauren Weber: The Wall Street Journal’s “Climate Change Has Hit Home Insurance. Is Health Insurance Next?” by Yusuf Khan.

Also mentioned on this week’s podcast:

• The Washington Post’s “U.S. Investigates Alleged Medicare Fraud Scheme Estimated at $2 Billion,” by Dan Diamond, Lauren Weber, and Dan Keating.
• Super Bowl ads from Pfizer, Power to the Patients, and the American Values 2024 super PAC.
• KFF Health News’ “Rapper Fat Joe Says No One Is Making Sure Hospitals Post Their Prices,” by Julie Appleby.

click to open the transcript

Transcript: Biden Wins Early Court Test for Medicare Drug Negotiations

KFF Health News’ ‘What the Health?’Episode Title: Biden Wins Early Court Test for Medicare Drug NegotiationsEpisode Number: 334Published: Feb. 15, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 15, 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: Lauren Weber of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: And Rachel Cohrs of Stat News.

Rachel Cohrs: Hi everyone.

Rovner: No interview this week, but we do have a special Valentine’s Day surprise. But first, the news. We’re going to start this week in federal district court, where the drug industry has lost its first legal challenge to the Biden administration’s Medicare drug price negotiation program, although on a technicality. Rachel, which case was this, and now what happens?

Cohrs: This was the capital “P” PhRMA trade association. And this case was a little bit of a stretch, anyways, because they were trying to find some way to get a judge in Texas to hear it. Because the broader strategy is for companies and trade groups to spread out across the country and try to get conflicting decisions from these lower courts.

Rovner: Which would force the Supreme Court to take it?

Cohrs: Exactly, yes. Or make it more likely. So PhRMA, in this case, they had recruited, there’s a national group that represents infusion centers and that was headquartered in Texas. The judge ultimately ended up ruling that this association didn’t follow the right procedure to qualify for judicial review and threw them off the case. And then they were like, well, if you throw them off the case, then there’s nobody in Texas, you can’t hear this here. So that was the ultimate decision there, but this could come back up. It was dismissed without prejudice. So this isn’t the end of the road for this lawsuit.

And it’s important to keep in mind that this wasn’t a ruling on any of the substance of the arguments. And trade groups generally are going to have less of an argument for standing, or it’s going to be a harder argument than the companies themselves that actually have drugs up for negotiation.

Rovner: And they’re suing too, the drug companies?

Cohrs: They are suing too. Yeah, just for everybody to keep on your calendars, there’s a judge in New Jersey who is hoping to have a quadruple oral argument on four of these cases, so stay tuned. That could be coming early next month. But these are very much moving. I think we are going to get insight on some of these arguments pretty soon, but this case is not quite that test case yet.

Rovner: All right, well, we’ll get to it eventually. Well, moving on to Capitol Hill. When we were taping last week, Sen. Bernie Sanders was holding his much-publicized hearing to grill drug company CEOs about their too-high prices. Rachel, you were there. Did anything significant happen?

Cohrs: I think it was kind of expected. I don’t think we were trying to find any innovative legislative solutions here. Honestly, it seemed, just from a candid take, that a lot of these lawmakers were not very well-prepared for questioning. There were a couple of notable exceptions, but we didn’t learn a whole lot new about why drug prices are high in the United States, how our system works differently from other countries.

I did find some useful nuggets in the CEO’s testimony about how low the net prices are for some of their medications, that they’re already offering a 70% discount, a 90% discount, which to me just kind of put into perspective some of the discounts we could be hearing in the Medicare negotiation program. That oh, even if it’s a 90% discount, that might not even be different from what they’re paying now. So just interesting to file a way for the future, but I think it was mostly a non-event for the CEOs who, for some reason, had to, under the threat of subpoena, come make these arguments. So it seemed like much ado about not a whole lot of substance.

Rovner: That was sort of my theory going in, but you always have to watch just in case. Well, also on Capitol Hill, the chairman of the powerful House Energy and Commerce Committee announced she will retire at the end of the Congress. Cathy McMorris Rodgers, who’s a Republican from Washington, was in her first term as chair of the committee that oversees parts of Medicare, all of Medicaid, as well as the entire U.S. Public Health Service.

I imagine this is going to set off a good bit of jockeying to take her place. And why would somebody step down early from such a powerful position? Do we have any idea?

Cohrs: Have you seen …? Oh, go ahead.

Ollstein: Facing Congress is what you say? Yes. This is part of a wave of retirements we’ve been seeing recently, including from some other committee chairs who could have theoretically continued to be powerful committee chairs for several years to come. People are taking this as part of the bad sign for Republicans. Either a sign that they don’t believe they’re going to hold the majority after this November’s election, or they’re just so fed up with the struggles they’ve had governing over the last few years and the inability to get anything done. And people are thinking, well, maybe I can get something done in a different role, not in Congress, because certainly, we’re not doing too much here to be proud of.

Rovner: Yeah, I feel like Cathy McMorris Rodgers is kind of this poster child for a very conservative Republican who’s not the far-right-wing MAGA type, who actually wants to do legislation. She just wants to do Republican legislation, and that seems to be getting harder in the House.

Ollstein: Right, right. And there’s a concern that, particularly on the right within Republicans, that we’re losing a health policy brain trust. We’re losing the people that have been really integral to a lot of the nitty-gritty policy work over the years, and they’re not being replaced with people who have that interest. They’re being replaced with people who are more focused on culture wars and other things. And so there’s concern in the future about the ability to cobble together things like Medicare reimbursement rates, or these technical things that aren’t really part of the culture wars.

Rovner: Yeah, I think we mentioned at some point that Mike Burgess is also retiring, also high up on the Energy and Commerce Committee. And he’s a doctor who’s really had his hands into some of this really nerdy stuff, like on Medicare physician reimbursement. And that will be obviously just a big loss of institutional memory there.

Cohrs: For the future of the committee, I know congressman Brett Guthrie has kind of thrown his hat in the ring to succeed her. Unclear who exactly is going to win this race, but he is the chairman of the health subcommittee, does bring some health expertise. So the E&C committee deals with a lot of different priorities, but if he were to succeed her, then I think we would see, at least at the top of the committee, some of the expertise remain.

Rovner: Well, meanwhile, in all of this jockeying, the next round of temporary government funding bills expires on March 1 and March 8, respectively, which is getting pretty close. And that brings back efforts to cancel the 3.4% pay cut that doctors got for Medicare patients in January. Where are we on funding, and are any of these health issues that people are out lobbying on going to make it into this next round? Is there going to be a next round?

Cohrs: Yeah, we don’t know if there’s going to be a next round, I don’t think. But at least the sources I’ve talked to have said that a full cancellation of the 3.4% cut for Medicare or payments to doctors is off the table at this point. They are hoping to do some sort of partial relief. They haven’t decided on percentages for that yet. And it’s unclear how much money will be available from pay-fors. It is still very much squishy, not finalized, two, three weeks out from the deadline, but I think …

Rovner: Two weeks.

Cohrs: There is some agreement on some relief, which has not been the case thus far for doctors. So I think that’s a positive sign.

Ollstein: Yeah. Overall, the chatter is about the need for yet another CR [continuing resolution] because the work is not getting done in time to meet these deadlines. That seems to be where we’re headed. Obviously, that will piss off a lot of members on the right who don’t want another CR, who didn’t want the last couple CRs. And so once again, we are staring down a possible shutdown.

Rovner: And I had forgotten, somebody reminded me, that even if they get another temporary funding bill, starting in April, there are automatic cuts if they’re not finished with this year’s funding bills. Which, I don’t know, is there any indication that they’re going to be finished with them by April either? I have not seen a lot of progress here. They’ve been fighting over other things, which is fine to fight over other things, but I’m not noticing a lot happening on the spending bills.

I’m seeing a lot of shaking heads. I guess nobody else is noticing either. Well, we will obviously keep watching that space because next week, we will only be one week away.

Well, another Medicare policy that supporters are hoping to get into one or another of these spending bills is creating something called more site-neutral payments in Medicare. Currently, Medicare pays hospitals and hospital outpatient departments, and sometimes even hospital-owned physician practices, more than it pays non-hospital affiliated providers for the exact same service.

The theory is that hospitals need higher payments because they have higher fixed costs, like keeping emergency rooms open 24/7. But it costs Medicare many billions of taxpayer dollars for this differential in payments. And this has become quite the lobbying frenzy for the hospital industry, yes?

Cohrs: Yes. I think it’s something that they can all get on board with hating, and I think they view it similarly to the drug pricing debate as a slippery slope. The policy Congress really is looking at now is a $3 billion, very small slice of all the services that could potentially be subjected to site-neutral payments. But the whole pie here is $150 billion potentially for Medicare.

We’re talking hundreds of billions of dollars for commercial payments. So I think they are really pushing to get to lawmakers, especially, from what I’ve talked to Senate Republicans, they are just not on board with it, they’re worried about the rural hospitals. And if they can connect to those things, which they have been successful in doing so far, they’re just not going to get very far.

I mean, if you look at the Senate Finance Committee, you have Mike Crapo from Idaho, Republican leadership. You have [John] Barrasso from Wyoming. There’s really just so many rural states that even Chuck Grassley, who is a moderate on a lot of health policy issues, talked about his rural hospitals in Iowa as soon as I asked him about this. So they’re not there yet right now, but I think hospitals are trying to keep it that way.

Rovner: And it was ever thus that the Senate is much more rural-focused than the House because pretty much every single senator has at least part of a rural area that they represent. Lauren, you wanted to add something?

Weber: Yeah, I just wanted to say, I always find it funny when rural hospitals come up as a cudgel by the big hospital associations, who don’t seem to look out for them the vast majority of the time when they’re closing. But as you pointed out, the Senate is much more rural-focused. So I do agree with all of you all, that I question whether or not this will have much ground to gain.

Rovner: Yeah. And the other thing that I keep wanting to point out is that there’s all this talk on Capitol Hill among Republicans of cutting the spending bills, the appropriations, and we’re going to balance the budget. Well, there’s just not enough money in the appropriation bills to do anything to the deficit. The money is in things like Medicare. I mean, that’s where, if you really want to make a dent in the deficit, you’re going to do it. And, as we’re seeing with this particular fight, every time they want to do something that’s going to save money, it’s going to hurt somebody. And I mean, there are obviously legitimate concerns about rural hospitals that are in trouble, particularly in states that haven’t expanded Medicaid, but that’s one of the reasons. It’s not so much the spending bills that make it hard to do anything about the deficit. It’s fights like these.

Meanwhile, for better or worse, another reason that Medicare costs so much is that it’s subject to a lot of fraud. Lauren, I have seen a lot of Medicare fraud stories over the years, but you’ve got one that was discovered in a pretty novel way. So tell us about it.

Weber: Yeah, my colleagues Dan Diamond, Dan Keating, and I found out early last week — we got a tip from the National Association of ACOs [Accountable Care Organizations] saying that they had seen this massive spike in catheter billing. When we did some digging into the companies they had identified — and to be clear, that spike of catheter billing was worth an alleged $2 billion in billings to Medicare. So when we talk about site-neutral payments, that’s almost what you would get for site-neutral payments: the $2 billion in Medicare fraud, but regardless.

So my colleagues and I dug in. So Dan, Dan, and I called around, and we found links between the seven companies that were charging Medicare for catheters that folks never received. I want to point out, I spoke to this lovely woman in Ponta Vedra Beach, Florida. She’s 74, Aileen Hatcher, who spotted this diligently going through her Medicare form, but as she said, she went to her — literally, these are her words — she’s like, “I went to my old lady luncheon and told them all this was on my Medicare statement.” And they said, “Oh, we don’t read those because we don’t pay Medicare the money. So we don’t read the explanation of benefits to see what we’ve been charged.”

And, unfortunately, I think that is what happens a lot of times with Medicare fraud. It goes unnoticed because folks aren’t the ones paying the dollars. But the bottom line is this was so large and so many people called into Medicare that Dan and I discovered that there is an ongoing federal investigation. Three of the companies, former owners that I called, confirmed to me that FBI had interviewed them or was talking to them about these folks that had taken over the companies and started charging Medicare this much money. And Dan also got some sources on that front as well.

So, I mean, it’s a pretty massive Medicare fraud scheme. I’ll give a call-out here. If anyone here has been affected by catheter and Medicare fraud, please give me an email. We’d love to hear more. I think it speaks to the fact that Medicare fraud — we all know this because we cover this — Medicare fraud is as old as time. It continues to happen, especially durable medical equipment Medicare fraud. But this is so much money. And it is wild that even though we talked to so many people that called Medicare over and over and over again, these folks were able to get away with billing for a very long time.

Rovner: What I found really fascinating about the story, though, is that it was the doctors in the ACOs that spotted it because — we’ve talked about these accountable care organizations — they’re accountable for how much it costs to take care of their patients.

The patients aren’t paying for it, as they point out, but these doctors, it’s coming right out of their bonuses and what they’re charged and how much they get for Medicare. So there’s finally somebody with a real incentive to spot this kind of fraud, because, basically, it was taking money from them. Right?

Weber: That’s exactly right. I think that’s why they were so hot to have some movement on this because, as they pointed out, they could lose millions of dollars in bonuses for better taking care of their patients.

It’s wild that it gets to this point. Like I said, we had all these people that called in to Medicare and many fraud lawyers we talked to said, “Look, why aren’t the NPIs [National Provider Identifiers] turned off?” Great question.

Rovner: Yeah. Anyway, I was fascinated by this story, and as I told Lauren earlier, I’m not a big fan of Medicare fraud stories just because there are so many of them. But this one is like, oh, maybe we finally have somebody … the ACOs can become bounty hunters for Medicare fraud, which would not be a bad thing.

All right, well, moving on to abortion this week, we have spent a lot of time talking about how doctors who perform abortions and patients who need them in emergencies have been trying to get state officials to spell out when the exceptions to state bans apply. Well, now it seems that it’s the other side looking for clarification.

Stat News reports that several anti-abortion groups have joined doctors and patients in urging the Texas Medical Board to spell out which conditions would qualify for the exception to the ban, and not subject doctors who guess wrong to potential prison terms and loss of their medical licenses.

Meanwhile, legislation moving through the House in South Dakota, endorsed by multiple anti-abortion groups, would require the state to make a video explaining how its ban works and under what circumstances. Alice, what’s going on here?

Ollstein: I think it’s this interesting confluence and it’s an interesting development because, at first, anti-abortion groups were insisting that the laws were perfectly clear. And that doctors were either willfully or mistakenly misinterpreting them. As more and more stories came forward of women being turned away while experiencing a medical emergency and suffering harm as a result, a lot of those women are part of lawsuits now.

They were saying the law is fine. In some cases, these anti-abortion groups wrote the laws themselves or advised on them saying, your interpretation is what’s wrong. The law is fine. But I think as so many of these stories are coming out, that’s not proving enough. And now they’re going back and saying, OK, well, maybe there do need to be some clarifications. They don’t want changes. There’s different camps because some people do want changes. Some people say, OK, we need more exceptions. We need more carve-outs to avoid these painful stories. Whereas other anti-abortion forces and elected officials say, no, we don’t need to change the law. We just need to clarify it and explain it. And so I think that’s going to be an ongoing tension.

Rovner: Yeah, I know one of the big themes earlier in this whole fight — I won’t say earlier this year, it was mostly last year — was redefining things as not abortions. That if you’re terminating an ectopic pregnancy, that’s not an abortion. Well, that is an abortion.

Ollstein: Medically, yes.

Rovner: So apparently, the … right. The renaming has not worked so far. So now I guess they’re trying to clarify things. Lauren, you wanted to add something?

Weber: Yeah, I just wanted to say, when you kick things to the medical board, I think people see that as an unbiased unpolitical organization. But medical boards are often appointed by the governor. So, in this case, Gov. [Greg] Abbott. And also take Ohio, for example: I believe that one of their medical board leaders is the head of the right-to-life movement.

I haven’t looked at Texas’. But kicking it to the medical board to make a decision — putting aside the fact that most medical boards are incredibly inadequate at their actual job, which is disciplining doctors, they’re not necessarily known for their competence — is that you also deal with some of the politics involved in this as well.

Rovner: So in South Dakota, it would kick this to the South Dakota Department of Health, which, of course, is controlled by the governor, who’s a Republican and pro-lifer. And so it’s hard to imagine what sort of doing a video explaining this is going to do to clarify things any further than they already think the law has gone. But at least … I’m fascinated by the effort here, that this is going on in multiple states. Speaking of state legislators, in Missouri, they’re working on a bill to create an abortion ban exception for children 12 and under — obviously thinking of the 10-year-old in Ohio in 2022 [who] had to go to Indiana to get a pregnancy terminated. But one Republican state senator complained that “a 1-year-old could get an abortion under this.” This is a serious question: Should legislators have to pass a basic biology test to make laws about reproductive health? As we know, 1-year-olds cannot get pregnant.

Ollstein: I mean, this was a more glaring example. We see this over and over in a lot more subtle ways, too, where doctors and medical societies are pointing out that these laws are drafted using language that is not medically accurate at all. And it can be small things in terms of when someone should qualify for a medical exemption to an abortion ban. Some states have language around if it would cause “irreversible damage.” That’s not a term doctors use in that circumstance, things like that. Or a major bodily function would be impaired if they don’t get an abortion. Well, what is a major bodily function? That’s not defined. And so, yes, this was an almost laughable example of this, but I think that it’s a sign of something more pervasive and maybe less obvious.

Rovner: Yeah, I mean, I have listened to a lot of state debates with a lot of legislators saying things that are, as I say, kind of laughably inaccurate. Sorry, Lauren.

Weber: Oh, I would just say as a Missourian and as someone who lived in Missouri until a year ago, this gentleman, in particular, it does seem like has a history of making somewhat inflammatory statements that he knows will be picked up by the media. I mean, I think he brought a flamethrower to an event. I mean, I think that’s part of the shtick. But welcome to Missouri politics. You never know what you’re going to get.

Ollstein: And of course, we have the famous assertion that people can’t get pregnant as a result of rape because the body knows how to shut it down, which is obviously not …

Rovner: Which happened in a Missouri Senate race.

Ollstein: Yes. Yep. Exactly. So Missouri, once again, covering itself in glory.

Rovner: All right, well, something we haven’t talked about a lot recently are crisis pregnancy centers, which are usually storefronts for anti-abortion organizations that often lure women seeking abortions by offering free pregnancy tests and ultrasounds so that they can then talk them into carrying their pregnancies to term. The centers are getting more and more public support from states. One estimate is that government support totaled some $344 million in fiscal 2022. So that was a couple of years back. And increasingly as abortion clinics close in states with bans, crisis pregnancy centers, which typically don’t have medical professionals on staff and aren’t technically medical facilities, may be the only resource available to pregnant women. It seems that could have some pretty serious ramifications. Yes?

Ollstein: I mean, I think people don’t realize just how vast the network of these centers are. They outnumber abortion clinics by a lot in a lot of states, including states that support abortion rights. They’re very, very pervasive. And this is becoming a huge focus for the anti-abortion movement. It was basically the theme of this year’s March for Life, was these sort of resources. In part, it is an attempt to show a kinder face of the movement and change public opinion. Obviously, like we discussed, there are all these painful stories coming out about people being denied care. And so promoting these stories of places that provide some form of something, some services, it’s not necessarily medical care, but …

Rovner: They provide diapers and strollers and car seats. I mean, they do actually … many of them actually provide services for babies once they’re born.

Ollstein: Right. Right, right, right. And so I think there is going to be a huge focus on this in the policy space, both in terms of directing more taxpayer funding to these centers, which progressives vehemently oppose.

And so I think this is going to be a big focus going forward. It already has in Texas. Texas has directed a lot of money towards what they call alternatives to abortion, which include these centers. And so I think it’s going to be a big focus going forward.

Rovner: Well, one other thing about crisis pregnancy centers, because they are not medical facilities, they are not subject to HIPAA medical privacy rules. And it turns out that is important. According to an investigation by Senate Finance Committee Chairman Ron Wyden, a company gathered and sold location data for people whose phones were in or around 600 separate Planned Parenthood locations, without the patients’ consent, to use an anti-abortion advertising.

Wyden is asking the SEC and the FTC to investigate the company, but this raises broader questions about information privacy, particularly in the reproductive health space. I remember right after Roe v. Wade was overturned, there were lots of warnings to women who were using period-tracking apps and other things about the concern about people who you may not want to know your private medical situation being able to find out your private medical situations. Is there any indication that there’s any way from the federal government point of view to crack down on this?

Ollstein: So I don’t know about that specifically, but there is a bigger effort on privacy and digital privacy and how it relates to abortion. We’re still waiting on the release of the final HIPAA rule from the Biden administration, which will extend more protections around abortion data, I think. But, because it’s HIPAA, it does only apply to certain entities and these centers are not among them. Another area I’ve been hearing concern about is research. A researcher at a university who is studying people who have abortions or don’t have abortions, their data is not protected. And so they are very stressed out about that, and that’s compromising medical research right now. So there’s a lot of these different areas of concern. And as we so often see, technology evolves a hell of a lot faster than government evolves to regulate it and address it. And that is just an ongoing concern.

Rovner: Yes, it is. And at some point, we’ll talk about artificial intelligence, but not today. Actually, right now, I want to turn to the Super Bowl. Yes, the Super Bowl. In between all the ads for blockbuster movies, beer, cars, and snack foods, and, right, a football game, there were three ads aimed directly at health policy issues.

In one, the nonprofit price transparency advocacy group Power to the Patients got musicians Jelly Roll, Lainey Wilson, and Valerie June to basically call hospitals and insurance companies greedy. It’s not clear to me if this was a free PSA or if this group paid for it, but I suspect the latter.

Does anybody know who this group is? They seem to have lots of access to big names for what seems to be a kind of obscure health issue. I mean, everybody’s for transparency, but I don’t think I’ve ever seen a Super Bowl ad about it.

Cohrs: This is not their first Super Bowl. It’s backed by Cynthia Fisher who is married to the CEO of Sam Adams, parent company. And he’s also a member of the Koch family. But she has been passionate about health care price transparency for years. I mean, was in President [Donald] Trump’s ear, has made the legal argument that the authority existed under the Affordable Care Act. Lobbied to get these regulations passed. And she has definitely employed unusual or unorthodox techniques, like Super Bowl ads, like painting murals, like hosting parties and concerts for health staff and health policy people in D.C. And I think she’s also lobbying for the codification of these transparency regulations.

And it is a little wonky, but I think her frustration is that she lobbied so hard to get these price transparency regulations and everyday people don’t even know that it should be available for them. And obviously academics disagree over how useful that information is for everyday people. But I think she has just taken it upon herself to do the PR campaign for these regulations that she believes could help people make more educated decisions about care that isn’t necessarily emergency care, like MRIs, that kind of thing. So she’s been around for years and has been very active.

I think Fat Joe is another celebrity that she’s brought onto the case. Jelly Roll — I hadn’t seen him do an event with her before or an ad. But I think there’s an ever-expanding cast of celebrities where this is just … it seems like a pretty noncontroversial issue. So I mean, Busta Rhymes, like French Montana, there’s been a lot of people involved in this campaign and I expect it to be ongoing.

Rovner: I feel like she’s kind of the Mark Cuban of price transparency, where Mark Cuban is all into drug prices. Alice, you want to add something?

Ollstein: Well, it’s just funny to me because, as we’ve discussed many, many times on this podcast, transparency goes not very far in helping actual patients. And so it’s funny that a group called Power to the Patients is going all in on this issue when, as we know, the vast majority of health care people need they cannot shop around for and, even when they can, it’s not something people are always able or willing to do.

And so transparency gets a lot of bipartisan support and sounds good in theory, but we’ve seen in terms of what’s been implemented so far in terms of hospital prices, et cetera, that it doesn’t do that much to bring down prices or empower people.

Rovner: Although, I don’t know, getting famous people to care about health policy can’t be a terrible thing. Lauren, did you want to add something too?

Weber: No, I just wanted to say, I mean, I will say as much as we’re all clear on price transparency, what this all means, the Super Bowl is a new audience. So, I mean, if you’re going to spend your money, at least you’re spending it — and that was the most watched TV program, I believe, of all time — so you’re spending it in a way that you’re getting some eyeballs on it.

Rovner: All right, well, that was not the only ad. Next, a company that clearly did pay for its ad was Pfizer, which used a soundtrack by Queen and talking paintings and statues to celebrate science and declare war on cancer. This is also one I don’t think I had seen before. I mean, what is Pfizer up to here? I mean, obviously, Pfizer can afford a Super Bowl ad. There’s no question about that, but why would they want to?

Cohrs: I mean, Pfizer has not been performing great financially lately. And I think they pulled out of the lobbying organization biome and chose to spend money on a Super Bowl ad, which I think is a really interesting choice. I mean, I don’t know what the dues are, but a Super Bowl ad is an expensive thing.

And I think there has been this attack on science, as a whole, and I think there’s an outstanding question of how to rebuild trust. And I think that this was Pfizer’s unorthodox tactic of trying to equate themselves with more credible, historical scientists who are less controversial. Yeah, my colleague did a good story on it.

Rovner: Yeah, like Einstein.

Cohrs: Right.

Rovner: Well, we’ll link to all of these ads. If you haven’t seen them there, they’re definitely worth watching. Well, finally, and in keeping with the occasional politics that does creep into Super Bowl ads, the super PAC supporting the presidential candidacy of independent anti-vaxxer Robert F. Kennedy Jr. paid $7 million for an ad that was basically a remake of the 1960 ad for his uncle John F. Kennedy, when he was running for president, which provoked an outcry from several of his Kennedy cousins who have repeatedly disavowed RFK Jr.’s candidacy and his causes.

For his part, the candidate apologized to his family members and said he didn’t have anything to do with the ad directly, because it was the super PAC. But then he pinned it to his Twitter profile, where he has more than 2½ followers. I can’t help but wonder if they’re going after football fans who actually believe the whole Taylor Swift-Travis Kelsey thing is a conspiracy.

No comment on Robert F. Kennedy Jr. and pissing off his entire family? We will move ahead then.

Speaking of conspiracy theories, in “This Week in Health Misinformation,” we have — drum roll — blood transfusions. Seems that there are a significant number of people who believe that getting blood from someone who has been vaccinated against covid, using the mRNA vaccines, will somehow change their DNA or otherwise harm them. And state legislators are listening.

In Wyoming, a state representative has introduced a bill that would require the labeling of blood from a covid-vaccinated donor. So prospective recipients could refuse it, at least in nonemergency situations. And in Montana, there’s a bill that would go even further, banning blood donations from the covid-vaccinated. That one appears to not be going anywhere, but this could have serious implications. It would create blood shortages, I imagine, even in rural areas where fewer people are vaccinated than in some of the urban areas. But I mean, this strikes me as not an insignificant kind of movement.

Ollstein: Well, it seems troubling on two fronts. One, we already have blood shortages and we already have dangerously low vaccination rates and not just covid vaccination rates. The hesitancy and anti-vax sentiment is spilling over into routine childhood vaccinations and all kinds of things.

And so I think anything that appears to give that sort of stigma and conspiracy a veneer of credibility, like state law for instance, threatens to further entrench those trends.

Rovner: All right, well, that is this week’s news. We will do our extra credits in a minute, but first, as promised, we have the winners of the KFF Health News “Health Policy Valentines” contest. This year’s winner, and we will post the link to the poem and its accompanying illustration, is from Jennifer Reck.

It goes, “Darling, this Valentine’s Day, let’s grab our passports and fly away to someplace where the same drugs cost a fraction of what they do in the States.” I have asked the panel to each choose a finalist of their own to read. So, Lauren, why don’t you start?

Weber: “The paperwork flirts with my affections, a dance of denials, full of rejections. My heart yearns for you, my sweet medication, but insurance insists on prior authorization.”

Rovner: And who’s that from?

Weber: That’s from Sally Nix. Excellent work, Sally.

Rovner: Alice.

Ollstein: OK, I have one from Kara Gavin. It’s “My love for you, darling, is blinding / Like a clinical trial pre-findings / But I fear we shall part / And I’ll lose my heart/ Because of Medicaid unwinding!” Very topical.

Rovner: Very. Rachel.

Cohrs: OK, this is from Andrea Ferguson. “Parental love is beautiful and guess what makes it stronger? A paid parental leave policy to stay with baby longer.”

Rovner: Very nice. Thank you all who entered. And we’ll do this again next year. All right, now it is 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Alice, why don’t you go first this week?

Ollstein: I have a piece from my colleague Arek Sarkissian, down in Florida, and it is about how the state’s immigration law is deterring immigrants from seeking health care. And one of the areas they’re most concerned about is maternal health care. We already are in a maternal health crisis and the law requires hospitals that receive Medicaid funding to ask people about their immigration status when they come in for care. What a lot of people don’t know is that they don’t have to answer, but this fear of being asked and potentially being flagged for deportation enforcement, et cetera, is making people avoid care. And so there’s just a lot of concern about this and a lot of attempts to educate folks in the immigrant community. Obviously, Florida has a very large immigrant community. And it just reminded me of the fears that were happening early in the pandemic when the public charge rule under Trump was in effect and it was deterring immigrants from seeking care.

And in the middle of a pandemic, when we’re dealing with an infectious disease that doesn’t care if you have citizenship or not, having a large segment of the population avoid care is dangerous for everyone.

Rovner: Indeed. Lauren.

Weber: So I chose an article titled “Climate Change Has Hit Home Insurance. Is Health Insurance Next?” by Yusuf Khan in The Wall Street Journal. And, I mean, look, the insurers are — they’re looking out for their bottom line. And the bottom line is that climate change does have health impacts. So the question is, will that start to hit premiums? The sad answer, in part of this article, is that, unfortunately, the people often most affected by climate change don’t have health insurance. So that may not affect premiums as much as we expect, but I think this is a really fascinating test case of how when climate change comes for your money, you’ll start to see it validated more. So I’ll be curious to see how this plays out with the various health insurers.

Rovner: Yeah, obviously, we’re already seeing people not being able to get home insurance in places like Florida and California because of increasing fires and increasing hurricanes and increasing flooding in some places. Rachel?

Cohrs: So mine is a package deal. It’s two stories related to private equity investment in health care. The first is a piece in Modern Healthcare by Nona Tepper on a Medicare Advantage report by the Private Equity Stakeholder Project. And it just kind of highlighted the downturn in investment in Medicare Advantage, like marketing companies and brokers, consultants.

And I thought it was an interesting take because, I think so often, we see reporting about how private equity is expanding its investment in a certain sector. But this, I think, was an interesting indicator where, oh, it’s turning downward so dramatically. And I think that it’s interesting to track the tail end of more regulation or whatever rule comes out. How does that impact investment? And we talk a lot about that in the pharmaceutical space. But I thought this was a great interesting creative take on the Medicare Advantage side of things.

And also just highlighting some reporting from my colleague Bob Herman about the FTC doubling down on the Welsh Carson’s anesthesia case to limit private equity’s physician buyouts. So the FTC is taking on Welsh Carson, a powerful private equity firm, and other private equity firms asked for the case to be dismissed. And Bob does a great job breaking down these really complicated arguments by the FTC as to why they’re not backing down. They’re not going to cut a deal, they want this case to go forward.

So it will be interesting to watch as this develops, but I think Bob makes a great argument. There are applications for other cases as well and for the FTC and being able to attack these complex corporate arrangements where they’re using subsidiaries to drive prices up for physician services and other things. So definitely worth a read from Bob.

Rovner: Yes, another theme of the Federal Trade Commission getting more and more involved in health care in general and private equity in health care in particular. My extra credit this week is from Stateline by Anna Claire Vollers, and it’s called “Government Can Erase Your Medical Debt for Pennies on the Dollar — And Some Are.” It’s about how a growing number of states and cities are buying up and forgiving medical debt for their residents. Backers of the plans point out that medical debt is a societal problem that deserves a societal solution. And that relieving people’s debt burdens can actually add to economic growth. So it’s a good return on a small investment. It’s obviously not going to solve the medical debt problem, but it may well buy some government goodwill for some of the people of these states and cities.

All right, that is our show. 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 technical guru, Francis Ying, and to Stephanie Stapleton, filling in this week as our editor. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Lauren, where are you these days?

Weber: Still just on Twitter @LaurenWeberHP, or X, I guess.

Rovner: Alice.

Ollstein: On X @AliceOllstein and on Bluesky @alicemiranda.

Rovner: Rachel.

Cohrs: I’m @rachelcohrs on X and also getting more engaged on LinkedIn lately. So feel free to follow me there.

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 KFF Health News’ 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.

For the first time, a jury has convicted a parent on charges related to their child’s mass-shooting crime: A Michigan mother of a school shooter was found guilty of involuntary manslaughter. What remains unclear is whether this case succeeded because of compelling evidence of negligence by the shooter’s mother or if this could become a new avenue for gun control advocates to pursue.

Meanwhile, a prominent publisher of medical journals has retracted two articles that lower-court judges used in reaching decisions that the abortion pill mifepristone should be restricted. The case is before the Supreme Court, with oral arguments scheduled for March 26.

This week’s panelists are Julie Rovner of KFF Health News, Sarah Karlin-Smith of the Pink Sheet, Alice Miranda Ollstein of Politico, and Rachana Pradhan of KFF Health News.

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Sarah Karlin-Smith
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Alice Miranda Ollstein
Politico

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Rachana Pradhan
KFF Health News

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Read Rachana's stories.

Among the takeaways from this week’s episode:

• Sage Journals, a major medical publisher, has retracted two studies central to abortion opponents’ arguments in a federal court case over access to the abortion pill mifepristone. Although the retraction came before next month’s Supreme Court hearing on the case, the now-discredited studies have permeated the public debate over mifepristone.
• Florida’s Supreme Court has until April 1 to stop a measure about the availability of abortion from appearing on the November ballot. The decision could be pivotal in determining abortion access in the South, as Florida’s current 15-week ban (compared with near-total bans in surrounding states) has made it a regional destination for abortion care.
• In Medicaid news, the nation is about halfway through the “unwinding,” the redetermination process states are undergoing to strip ineligible beneficiaries from the program’s rolls. Although the process will amount to the biggest purge of the Medicaid and Children’s Health Insurance Program rolls in a one-year period, it is expected that, when all is said and done, overall enrollment will look much as it did before the pandemic — though how many people are left uninsured remains to be seen.
• In the states, Georgia is suing the Biden administration to extend its Medicaid work-requirement program. Meanwhile, some states are using Medicaid funding to address housing issues. Despite evidence that addressing housing insecurity can improve health, it is also clear that state budgets would need to be adjusted to meet those needs.
• And in “This Week in Health Misinformation,” PolitiFact awarded a “Pants on Fire!” rating to the claim — in a fundraising ad for Rep. Matt Rosendale (R-Mont.) — that Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases, “brought COVID to Montana” a year before it spread through the U.S., among other spurious claims.

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

Julie Rovner: Alabama Daily News’ “Alabama Lawmakers Briefed on New ‘ALL Health’ Insurance Coverage Expansion Plan,” by Alexander Willis.

Alice Miranda Ollstein: Stat’s “FDA Urged to Move Faster to Fix Pulse Oximeters for Darker-Skinned Patients,” by Usha Lee McFarling.

Sarah Karlin-Smith: The Atlantic’s “GoFundMe Is a Health-Care Utility Now,” by Elisabeth Rosenthal.

Rachana Pradhan: North Carolina Health News’ “Atrium Health: A Unit of ‘Local Government’ Like No Other,” by Michelle Crouch and the Charlotte Ledger.

Also mentioned on this week’s podcast:

• Sage Journals’ “Retraction Notice.”
• KFF Health News’ “Halfway Through ‘Unwinding,’ Medicaid Enrollment Is Down About 10 Million,” by Phil Galewitz.
• KFF Health News’ “Congressman Off-Base in Ad Claiming Fauci Shipped Covid to Montana Before the Pandemic,” by Katheryn Houghton.

click to open the transcript

Transcript: To End School Shootings, Activists Consider a New Culprit: Parents

KFF Health News’ ‘What the Health?’Episode Title: To End School Shootings, Activists Consider a New Culprit: ParentsEpisode Number: 333Published: Feb. 8, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 8, 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 Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Karlin-Smith: Hi, everybody.

Rovner: And my KFF Health News colleague Rachana Pradhan.

Rachana Pradhan: Hi, Julie.

Rovner: No interview today, so we will get straight to the news. We’re going to start in Michigan this week, where a jury convicted the mother of a teenager, who shot 10 of his high school classmates and killed four of them, of involuntary manslaughter. This is the first time the parent of an underage mass school shooter has been successfully prosecuted. The shooter’s father will be tried separately starting next month. Some gun control advocates say this could open the door to lots more cases like this, but others think this may have been a one-off because prosecutors had particularly strong evidence that both parents should have known that their son was both in mental distress and had easy access to their unlocked gun. Is this possibly a whole new avenue to pursue for the whole “What are we going to do about school shooters?” problem?

Ollstein: I mean, it seems like we’re just in an era where people are just trying various different things. I mean, there was ongoing efforts to try to hold gun manufacturers liable. There were efforts on a lot of different fronts. And the goal is to prevent more shootings in the future and prevent more deaths. And so, I think the goal here is to impress upon other parents to be more responsible in terms of weapon storage and also in terms of being aware of their child’s distress.

So, whether or not that happens, I think, remains to be seen, but these shootings have just gone on and on and on and not slowed down. And so, I think there’s just a desperation to try different solutions.

Rovner: Yeah. Apparently in other states they’re starting to look at this, but I guess we talk so much about the chilling effect. That’s actually what they’re going for here, right? As you say, to try and get parents to at least be more careful if they have guns in the house of how they’re storing them, and who has access to them.

Well, we will turn to abortion now. As we noted last week, the Supreme Court will hear the case challenging the FDA’s approval of the abortion drug mifepristone on March 26. We’ll get to some of the amicus briefs that are flooding in, in a minute. But I think the most surprising thing that happened this week is that two of the journal studies that the appeals court relied on in challenging the FDA’s actions were officially retracted this week by the journal’s publisher, Sage.

In a very pointed statement, Sage editors wrote that it had been unaware that the authors, and in one case one of the peer reviewers, were all affiliated with anti-abortion advocacy organizations and that the articles were found by a new set of peer reviewers to have, “fundamental problems with study design and methodology, unjustified or incorrect factual assumptions, material errors in the author’s analysis of the data.” And a lot more problems I won’t get into, but we will post the link to the entire statement in our show notes.

Now, close listeners to the podcast might remember that we talked about this last August, when a pharmacy professor in Georgia alerted the journals to some of the substantive and political problems, and Sage printed something at the time called an expression of concern. Alice, these articles were cited many times in both the lower-court and the appeals-court rulings. What does it mean that they’ve been formally disavowed by their publisher?

Ollstein: It’s really hard to tell what it’s going to mean because we’re in an era where facts don’t always matter in the courts. I mean, we had recently a whole Supreme Court case about a wedding website designer that was based on facts that did not turn out to be true about their standing. The football coach who prayed on the 50-yard line turned out to not be a true story.

And so, it’s really hard to tell. And pro-abortion rights groups have been arguing that evidence cited by the lower court was not scientifically sound. And so, it’s this “flood the zone with competing studies.” And the average person is just confused and throws up their hands. So, in terms of how much it’ll matter, I’m not sure. You already have the groups in question behind the retracted study accusing the publisher of bias. I think this back-and-forth and finger-pointing will continue, and it’s unclear what effect it’ll actually have in court.

Pradhan: I think the thing that I find troubling about it is it’s … and it’s happened with other issues too. It certainly happened during the covid-19 pandemic, where people would say that there would be research or science via press release instead of academic research really undergoing the controls that it is meant to undergo before it’s released and published in a journal. And I hope at the very least that it leads to this, if we’re going to get some amount of good change, it’s that it really does reinforce the need for really rigorous checks, regardless of what the subject of the study is, because clearly these things, it has real consequences.

And frankly, I mean, look at one of the best-known examples of a retracted study which links vaccines to autism. I mean, that happened. It was widely discredited after the fact, and it is still doing harm in society, even though it’s been retracted and the researcher discredited. So, I think it really underscores the importance. I hope that frankly some of these journals get their act together before they publish things that … because it’s too little too late by the time that the damage has been done already.

Rovner: Yeah, I feel like I would say the judicial version of the journalistic “he said, she said.”

Ollstein: I mean, that’s such a good point by Rachana about how the damage is already done in the public understanding of it. But I also am pretty cynical about the ramifications in court specifically, particularly given the fact that the same lower court that cited these studies also cited things that weren’t peer-reviewed or published in medical journals at all. Things that were just these online surveys of self-reported problems with abortion pills. And so, there doesn’t seem to be a clear bar for scientific rigor in the courts.

Karlin-Smith: I was going to say that gets to this fundamental issue in this case, which is: Are judges capable of really assessing the kinds of evidence you need to make these decisions or whether we should trust the FDA and the people we’ve charged with that to do that? Because they know how to look at research papers and the range of research papers out there and evaluate what science is credible, what’s been replicated, look for these problems.

Because if you want to make an argument, you probably can always find one scientific paper or two scientific paper that might seem like it was published in some journal somewhere that can help support your point, but it’s being able to really understand how science works and back it up with that breadth of evidence and the accurate and really reliable evidence.

Rovner: Yeah. I would note that one of the amicus briefs came from a bunch of former heads of the FDA who are very concerned that judges are taking on, basically, the kind of scientific questions that have been ceded to the expertise of the FDA over many, many generations. I don’t remember another amicus brief like this coming from former FDA commissioners banding together. Have you seen this before?

Karlin-Smith: Yeah. I mean, I certainly can’t think of something like it, but I haven’t necessarily scoured the history books to make sure of it, but it is pretty unusual. I did actually note that [former President Donald] Trump’s two FDA commissioners are not among the alive possible FDA commissioners who could have joined in, that didn’t join in on this one, which is interesting.

Ollstein: Oh, I just think that we’re seeing a lot of the medical community that has previously tried to stay above the fray now feeling like this is such a threat to the practice of medicine and regulatory scientific bodies that they feel like they have to get involved, where they didn’t before. And now you’ve reported a lot on how much the AMA [American Medical Association] has changed over time.

But I think seeing these folks in the medical community that aren’t exactly waving a flag at the front of the abortion rights parade really speaking out about this, and it’s a really interesting shift.

Pradhan: It’s certainly a case that challenges the administrative state, if you will, right? Like the one about mifepristone, about FDA’s expertise in science and scientific background in assessing whether a drug should be approved or not.

But as you all know, there’s another case going before the Supreme Court that challenges what’s known as the Chevron doctrine, which is how the agencies are relied upon to interpret federal laws and court rulings, and it’s their expertise that is deferred to, that also is now, I think being questioned and very well could be undermined potentially next year. So, who else? I guess it’s either judges or lawmakers that are supposed to be the ones that truly know how to implement various laws, instead of the folks that are working at these agencies.

Rovner: As you say, this is a lot broader than just the abortion pill. One of the briefs that I didn’t expect to see came from the former secretaries of the Army, Navy, and Air Force who argued that restricting medication abortion would threaten military readiness by hurting recruitment and retainment and the ability for active women service members in states that ban abortion to basically be able to serve. I did not have that particular amicus on my bingo card, but, Alice, this is becoming a bigger issue. Right?

Ollstein: Well, it’s just interesting because I think about the Biden administration policy supporting service members traveling across state lines for an abortion if they’re stationed in a state where it’s now banned. And the administration has been defending that policy from attacks from Capitol Hill, et cetera, and saying, “Look, we’re not backing this policy because it’s some high-minded abortion right priority. We’re backing this because they think it’s good for the military itself.”

And so, I think this amicus brief is making that same case and saying, having tens of thousands of service members lose access to decision-making ability would really hurt the military. So, I think that’s an interesting argument. Again, like these medical groups, you don’t see the military making this kind of case very often and you might not see it under a different administration.

Rovner: Yeah. It’s yet another piece of this that’s flowing out. Well, not everything on abortion is happening in Washington. The states are still skirmishing over whether abortion questions should even appear on ballots this fall. The latest happened in Florida this week, where the Supreme Court there heard arguments about a ballot question that would broadly guarantee abortion rights in the state. Alice, you were watching that, yes?

Ollstein: Yeah. It was an interesting mixed bag because most of the current state Supreme Court was appointed by [Republican Gov.] Ron DeSantis. These are very conservative people, a lot of them are very openly anti-abortion, and were making that clear during the oral arguments, and they were repeating anti-abortion talking points about what the amendment would do. But at the same time, they seemed really skeptical of the state’s argument that they should block it and kill it.

They were saying, “Look, it’s not our job to decide whether this amendment is good or not. It’s our job to decide whether the language is deceptive or not, whether voters who go to vote on it will understand what they’re voting for and against.” And so, they had this whole analogy of, “Is this a wolf in sheep’s clothing or is it just a wolf?” They seem to be leaning towards “it’s just a wolf” and voters can decide for themselves if they think it’s good or bad.

Rovner: Well, my favorite fun fact out of this case yesterday is that one of the five Republican members of the seven-member Florida Supreme Court is Charles Kennedy, who, when he was serving in the House in the 1990s, was the first member of Congress to introduce a bill to ban “partial-birth” abortion. So, he was at the very, very forefront of that very, very heated debate for many years. And now he is on the Florida Supreme Court, and we will see what they say.

Do we have any idea when we’re expecting a decision? Obviously, ballots are going to have to be printed in the not-too-distant future.

Ollstein: Yes. So, the court has to rule before April 1, otherwise the ballot measure will automatically go forward. And so, they can either rule to block it and kill it, they can rule to uphold it, or they can do nothing and then it’ll just go forward on its own.

Pradhan: The thing that — what I keep thinking about too is so, OK, they’ve indicated that they have to rule, right, by April 1. But then we also have this separate pending matter of what is the status of the six-week ban that is still blocked currently? And I just keep wondering, I’m like, how much could change over the course of 2024? We still don’t have a decision on that, even though that’s been pending for much longer. No?

Rovner: Yeah. Where is the Florida six-week ban? It’s not in effect, right?

Ollstein: Yes. There was the hearing on the 15-week ban, and if that gets upheld, the six-week ban automatically goes into effect after a certain period of time. So, we’re waiting on a ruling on the 15-week ban, which will determine the fate of the six-week ban, and then the ballot measure could wipe out both, potentially.

Pradhan: Right. So, it’s very topsy-turvy.

Ollstein: It’s very simple, very simple.

Pradhan: Right. Yeah. I mean, even just the 15-week ban and the six-week ban, to me, at first it was counterintuitive to think, “Oh, so either both of them stand or neither of them do.” So, it seems like we could be in for many, many changes in Florida this year, but I’m very curious about when that is going to happen because it’s been much longer since … rather than the abortion rights ballot measure for this year.

Rovner: And meanwhile, I mean, Florida is a really key state in this whole issue because it’s one of the only states in the South where abortion is still available, right?

Ollstein: Right. And we saw how important it’s become in the data where the number of abortions taking place plummeted in so many states, but in Florida, they’ve actually gone up since Dobbs, even with the 15-week ban in place. A lot of that is people coming from surrounding states. And so, it is really pivotal, and I think that’s why you’re seeing these big national groups like Planned Parenthood really prioritizing it, and there’s so many different ballot measure fights going on, but I think you’re seeing a lot of resources go to Florida, in part for that reason.

Rovner: We will keep an eye on it. Well, we have not talked about Medicaid in a while, and conveniently, my KFF Health News colleague Phil Galewitz has an interesting story this week that halfway through the largest eligibility redetermination in history, Medicaid rolls nationwide are down net about 10 million people or at roughly the number that they were before the pandemic. Rachana, you spend a lot of time looking at Medicaid. Does that surprise you, that the rolls ended up where they were before?

Pradhan: I think, no, not necessarily. Our esteemed KFF colleague Larry Levitt put it really well in the story Phil wrote, which is that the rapid clip at which this is happening is obviously notable, right? It is not normal for how fast enrollment is declining.

I do think the thing that I wish we had, and we only, I think maybe from a state or two know this, but we certainly don’t have nationwide data and won’t for several years, but how many of these people are becoming uninsured? I think at the end of the day, that’s really what big picture-wise matters. Right? But I think certainly, I mean, the unwinding is still occurring. We’re still probably going to have disenrollments that will, I think at least through basically the first half of this year, certain states are still going to take that long. And so, we really won’t know the full picture for obviously a little bit, but I thought that Phil’s piece was really interesting and on point, for sure.

Rovner: Yeah. We talked about how many more people joined the exchanges this year, on now ACA [Affordable Care Act] coverage. Anecdotally, we know that a lot of those came from being disenrolled from Medicaid, and obviously Medicaid is always full of churn. People get jobs and they get job insurance, and they go on, and then other people lose jobs and they lose their job insurance and they qualify for Medicaid. So, there’s always a lot of ups and downs.

But I’m just wondering, the rolls had gotten so swell during the pandemic when states were not allowed to take people off, that I think it will be interesting that when this is all said and done, Medicaid rolls end up where you would’ve expected them to be had there not been a pandemic, right?

Pradhan: Right. I think that what’ll be interesting to see is, I mean, we have some sense of ACA marketplace enrollment, the way it increased this past open enrollment, but again, we don’t know if some of those Medicaid enrollees, how many of them have shifted to job-based plans, if they have at all, or if they’ve just fallen off the rolls entirely.

One of the other things I think about also is the macro-level picture, of course, is important and good, but knowing who has lost their coverage is also … and so, children, I think have been impacted quite a lot by these disenrollments, and so that’s certainly something to keep in mind and keep an eye on. Right?

Rovner: Yeah. And I know, I mean, the federal government obviously has, I think, more data than they’re sharing about this because we know they’ve quietly or not so quietly told some states that they wish they were doing things differently and they should do things differently. But I think they’re trying very hard not to politicize this. And so, I think it’s frustrating for people who are trying to follow it because we know that they know more than we know, and we would like to know some of the things that they know, but I guess we’re not going to find out, at least not right away.

Well, so remember that work requirement that Georgia got permission to put in, as opposed to just expanding Medicaid? Georgia, remember, is one of the 10 states that have yet to expand Medicaid under the Affordable Care Act. Well, now Georgia is suing the Biden administration to try to keep their experiment going, which seems like a lot of trouble for a program that has enrolled only 2,300 of a potential pool of 100,000 people. Why does Georgia think that extending its program is going to increase enrollment substantially? Clearly, this is not going over in a very big way for the work requirements. Alice, you’ve been our work-requirement person. I’ll bet you’re not surprised.

Ollstein: So, the state’s argument is that all of the back-and-forth with the administration before they launched this partial, limited, whatever you want to call it, expansion, they say that that didn’t give them enough time to successfully implement it and that they shouldn’t be judged on the small amount of people they’ve enrolled so far. They should be given more time to really make it a success.

We don’t have a ton of data of what it looks like when states really go all in on these work requirements, but what we have shows that it really limits enrollment and a lot of people who should qualify are falling through the cracks. So, I don’t know if more time would help here, in Georgia and in some other states that haven’t expanded yet. There’s a real tussle right now between the people who just want to take the federal help and just do a real, full expansion like so many other states have done, and those who want to put more of a conservative stamp on the idea and feel like they’re not just wholeheartedly embracing something that they railed against for so many years.

Rovner: Yeah. Just a gentle reminder that the majority of people on Medicaid either are working or cannot work or are taking care of someone who cannot work. And that in the few states that tried to implement work requirements, the problem wasn’t so much that they weren’t working, it’s that they were having trouble reporting their work hours, that that turned out to be a bigger issue than actually whether or not they were … the perception that, I guess, from some of these state leaders that people on Medicaid are just sitting at home and collecting their Medicaid, turns out not to be the case, but that doesn’t mean that people don’t get kicked off the program likely when they shouldn’t.

I mean, that’s what we saw, Alice, you were in … it was Arkansas, right, that tried to do this and it all blew up?

Ollstein: That’s right. And there were other factors there that made it harder for folks to use the program. But I mean, everywhere that’s tried this, it shows that the administrative burdens of having to report hours trip people up and make it so that people who are working still struggle to prove they’re working or to prove they’re working in the right way in order to qualify for insurance that they theoretically should be entitled to.

Rovner: Well, before we leave Medicaid for this week, I want to talk about the newest state trend, which is using Medicaid money to help pay for housing for people who are homeless or at risk of eviction. California is doing it, so are Arizona and Oregon; even Arkansas is joining the club. All of them encouraged by the Biden administration.

The idea is to keep people from ending up in places that are even more expensive for taxpayers, in hospitals or jails or nursing homes, and that so very many health problems cannot be addressed unless patients have a stable place to live. But pouring money earmarked for health services into housing is a really slippery slope, isn’t it? I mean, we obviously have a housing crisis, but it’s hard to feel like Medicaid’s going to be able to plug that hole very effectively.

Karlin-Smith: I feel like that’s where some of the debate is moving next, which is there’s certainly lots of evidence that shows how much being unhoused impacts somebody’s health and their life span and so forth. But state Medicaid programs have to balance their budget and are usually not unlimited. And for me, in following drugs, that’s been a big issue with some of the really new expensive drugs coming on the market is it’s not that Medicaid doesn’t necessarily want to cover it, it’s that if they cover it, they might have to cut some other health service somewhere else, which they also don’t want to cut.

So, I think maybe this evidence of the ability to improve health through housing might have to lead to thinking about, OK, how do we change our budgets or our systems to ensure we’re actually tackling that? But I’m not sure that long-term, unless we really expand the funding of Medicaid, you can really continue doing that and serve all the traditional health needs Medicaid serves.

Pradhan: Yeah, I mean, if you think about Medicaid, I mean, just going back to the bread and butter of reimbursement of providers. I mean, everyone knows that it’s bad, right? It’s too low, it’s lower than Medicare, it’s lower than commercial insurance, and it affects even a Medicaid enrollee’s ability to see a primary care doctor, specialists. I mean, because there are clinicians that will not accept Medicaid as a form of insurance because they lose too much money on it.

And so, I think this is, it’s interesting, I think there’s this big philosophical debate of, is this Medicaid’s problem? Should it be paying for this type of need when there are so many other, you could argue, unmet needs in the program that you could be spending money on? But these states are not necessarily doing that. And so, I think, obviously, I think it would help to have housing stability, but it, for me, raises these broader questions of, but look at all these other things. Like Sarah said, being able to afford drugs that are expensive, but also are quite effective potentially and could really help people. But they’re already scrambling to do those basic things and now they’re moving on to, is it a new shiny toy? Or, something that’s obviously important, but then you’re ignoring some of the other challenges that have existed for a long time.

Rovner: And housing is only one of these social determinants of health that people are trying to address. And it’s absolutely true. I mean, nobody suggests that not having housing and nutrition and lots of other things very much affect your health, and if people have them, they’re very much likely to do better health-wise. But whether that should all fall to the Medicaid program is something that I think is going to have to be sorted out.

Well, back here in Washington, Congress is having some kind of week, mostly not on health care. So, if you’re interested in the gory details, you’re going to have to find them someplace else. But in the midst of the chaos, the House yesterday did manage to pass a bill called the Protecting [Health] Care for [All] Patients Act [of 2022], which certainly sounds benign enough. Its purpose is to ban the use of a measurement called quality-adjusted life years or QALYs, as they’re known. But Sarah, this is way more controversial than it seems, right? Particularly given the bill passed on a party-line vote.

Karlin-Smith: To back up a little bit, quality-adjusted life years, or QALYs, it’s basically a way to figure out cost-effectiveness or what’s a fair price of a product based on the dollar amount that they’re saying it costs per year of quality of your life extended. So, it’s not just taking into account if your life’s extended, but the quality of your life during that time.

And a lot of people have trouble with that metric because they feel like it unfairly penalizes people with disabilities or conditions where the quality of your life might not seem quite the same as somebody who a drug can make you almost perfectly healthy, if that makes sense? And so actually, Democrats are fairly in alignment with Republicans on not being huge fans of the QALY, that particular measure. It’s actually already banned in Medicare, but they are concerned that the way Republicans drafted this bill, it could make it pretty much hard to use any kind of metric that tries to help programs, state agencies, the VA, figure out what’s a fair price to pay for a drug. And then you get into really difficult problems figuring out what to cover, how to negotiate with a drug company for that.

So, Democrats have actually been pushing Republicans to take out some language that might basically narrow the bill or ensure you could use some other measures that are similar to QALYs, but they argue is a bit fairer for the entire populace. So, something that potentially down the road there could be some bipartisan agreement to ban this measure. I think the concern from people who work in the health economist space is that it does make people, I think, uncomfortable thinking about placing this dollar value on life.

But the flip side is, is that again, every drug that saves your life, we can’t spend a billion dollars on it. Right? And so, we have to come up with some way to effectively figure out how to bargain and deal with the drugmakers to figure out what is a fair price for the system. And these are tools to do it, and they’re really not meant to penalize people on an individual basis, because, again, if the drug is priced way too high, regardless of how beneficial it is, the system and you are not going to be able to afford it. It’s a way of figuring out, OK, what is a fair price based on what this does for you? And also then incentivize drug companies to develop drugs that at the price are really a good benefit for the price.

Rovner: It’s so infuriating because I mean, Congress and health policy experts and economists have been talking about cost-effectiveness measures for 30 years, and this was one of the few that there were, and obviously everybody agrees that it is far from perfect and there are a lot of issues. But on the other side, you don’t want to say, “Well, we’re just not going to measure cost-effectiveness in deciding what is allowed.” Which essentially is where we’ve been and what makes our system so expensive, right?

Karlin-Smith: Right. I mean, you can imagine, like, if you thought about other things that are crucial in your life, like I sometimes think about it, it makes it easier if I think about water, OK, everybody needs water to live. If we let the water utilities charge us $100,000 for every jug of water, we would get into problems.

So again, I think the people that use these metrics and try and think about it, they’re not trying to penalize people or put a price on life in the way I think the politicians use it to get out of this. They’re trying to figure out, how do we fairly allocate resources in society in an equitable way? But it can be easily politicized because it is so hard to talk about these issues when you’re thinking about your health care and what you have access to or not.

Rovner: We will watch this as it moves through what I’m calling the chaotic Congress. Turning to “This Week in Health Misinformation,” we have a story from KFF Health News’ Katheryn Houghton for PolitiFact that earned a rare “Pants on Fire!” rating. It seems that a fundraising ad for Republican congressman Matt Rosendale of Montana, who’s about to become Senate candidate Matt Rosendale of Montana, claims that former NIH [National Institutes of Health] official Tony Fauci brought covid to Montana a year before the pandemic. In other forums, Rosendale has charged that an NIH researcher at Rocky Mountain Laboratories infected bats with covid from China. It actually turns out that the laboratory was studying another coronavirus entirely, not the coronavirus that causes covid, the covid that we think of, and that the virus wasn’t actually shipped, but rather its molecular sequence was provided. To quote from this story, “Rosendale’s claim is wrong about when the scientists began their work, what they were studying, and where they got the materials.” But other than that, these kinds of scary claims keep getting used because they work in campaigns. Right?

Karlin-Smith: It taps into this theme that we’ve seen that Republicans on the Hill have certainly been tapping into over the past year or two of whether covid came from a lab and what funding from the U.S. to China contributed to that, and what do people in the U.S., particularly connected to Democrats, know that they’re not saying.

So, even though as you start to dig into this story and you see every level how it’s just not true, the surface of it, people have already been primed to believe that this is occurring, and it’s been how we do this sort of research in this country has already been politicized. So, if you just see a clip, people are easily persuaded.

Rovner: Yes. I think it was Alice, we started out by saying we’ve become a fact-free society. I think this is another example of it. All right, well that is this week’s news.

Now it is 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Rachana, you got the first one in this week. Why don’t you go first?

Pradhan: Oh, sure. The story I wanted to highlight was from North Carolina Health News. It is focusing on a very large health system known as Atrium Health, which is based in Charlotte, North Carolina. And basically, it’s really interesting, it talks about how Atrium actually operates under a public hospital authority. So, it enjoys certain benefits of being a public or government entity, including they avoid millions in state and federal taxes. They have the power of eminent domain, and they are not subject to antitrust regulations.

And again, this is one of the largest health systems in North Carolina, but it’s playing it both ways. Right? It tries to use the advantages of being a public entity like the ones I just named, but when it comes to other requirements to have checks and balances in government, as we do with various levels of government, like having open public meetings, being able to ask for public comment at these meetings and the like, Atrium does not behave like a government entity at all.

I would also note, as an aside, Atrium was, in the past, one of the most litigious hospital systems in North Carolina. They sued their patients for outstanding medical debt until they ended the practice last year. And so, it’s a really interesting story. So, I enjoyed it.

Rovner: It was a really interesting story. Sarah.

Karlin-Smith: I looked at a piece in the Atlantic from KFF [Health] News editor Elisabeth Rosenthal, “GoFundMe Is a Health-Care Utility Now,” and she tracks the rise of people in the U.S. using GoFundMe to help pay for medical bills, which I think, at first, maybe doesn’t seem so bad if people are having another way to help them pay for medical expenses. But she shows how it’s a band-aid for much bigger problems in an unfair and inequitable system. And, really, also documents how it tends to perpetuate the already existing socioeconomic disparities.

So, if you’re somebody who’s famous or has a lot of friends or just has a lot of friends with money, you’re more likely to actually have your crowdfunding campaign succeed than not. And talking about how health systems are actually directing patients there to fund their medical debt. So, it’s just one of those trends that highlights the state of where the U.S. health system is and that our health insurance system, which is in theory supposed to do what GoFundMe is now an extra band-aid for, which is, you pay money over time so that when you are sick, you’re not hit with these huge bills. But that obviously isn’t the case for many people.

Rovner: Indeed. Alice.

Ollstein: So, I have a piece from Stat’s Usha Lee McFarling, and it’s about the FDA coming under pressure to act more quickly now that they know that pulse oximeters, which were really key during the worst months of the covid pandemic for detecting who needed to be hospitalized, that they don’t work on people of color, they don’t work as well on detecting blood oxygen.

And so, it’s a really fascinating story about, now that we know this, how quickly are regulators going to act and how can they act? But also going forward, this is what happens when there’s not enough diversity in clinical trials. You don’t find out about really troubling racial disparities in efficacy until it’s too late and a lot of people have suffered. So, really curious about what reforms come out of this.

Rovner: Yeah, me too. Well, my extra credit this week is from the Alabama Daily News, and it comes with the very vanilla-sounding headline “Alabama Lawmakers Briefed on New ‘ALL Health’ Insurance Coverage Expansion Plan,” by Alexander Willis. Now, Alabama is also one of the 10 remaining states that have not expanded Medicaid under the Affordable Care Act, much to the chagrin of the state’s hospitals, which would likely have to provide much less free care if more low-income people actually had insurance, even Medicaid, which, as Rachana points out, doesn’t pay that well. The plan put forward by the state hospital association would create a public-private partnership where those who are in the current coverage gap, the ones who earn too much for Medicaid now, but not enough to qualify for Affordable Care Act subsidies, would get full Medicaid benefits delivered through a private insurer. Ironically, this is basically how neighboring Arkansas, another red state, initially expanded Medicaid back in 2013. I did go and look this up when this happened. And it wasn’t even new then. But still, the plan could provide a quarter of a million people in Alabama with insurance at apparently no additional cost to the state for at least the first five years and maybe the first 10. So, another place where we will watch that space.

All right, that is our show. 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 technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Sarah, where are you these days?

Karlin-Smith: I’m on Twitter a little bit, @SarahKarlin. And Bluesky, I’m @sarahkarlin-smith, other platforms as well.

Rovner: Alice?

Ollstein: @AliceOllstein on X, and @alicemiranda on Bluesky.

Rovner: Rachana?

Pradhan: I’m @rachanadpradhan on X, although my presence lately has been a little lacking.

Rovner: Well, you can definitely find all of us. And 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 KFF Health News’ 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 Supreme Court in March will hear oral arguments in two very different cases that boil down to the same question: How much power do “experts” in health and science deserve? At stake is the future accessibility of the abortion pill mifepristone, and the ability of government officials to advise social media companies about misinformation.

Meanwhile, abortion opponents are preparing action plans in case Donald Trump retakes the White House. While it’s unlikely Congress will have enough votes to pass a national abortion ban, a president can take steps to make abortion far less available, even in states where it remains legal.

This week’s panelists are Julie Rovner of KFF Health News, Sandhya Raman of CQ Roll Call, Joanne Kenen of Johns Hopkins University and Politico Magazine, and Sarah Karlin-Smith of the Pink Sheet.

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

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Sarah Karlin-Smith
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Read Sarah's stories.

Sandhya Raman
CQ Roll Call

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Read Sandhya's stories.

Among the takeaways from this week’s episode:

• Abortion opponents are preparing for the possibility of a second Trump presidency. Among ways the former GOP president could influence policy without Congress is by installing an activist secretary of Health and Human Services, possibly allowing a political appointee to overrule decisions made by FDA employees.
• While President Joe Biden is embracing abortion rights, Donald Trump is highlighting two conflicting truths: that he appointed the Supreme Court justices who helped overturn the constitutional right to an abortion and that embracing abortion restrictions could drive away voters.
• The federal government is making its initial offers on 10 expensive pharmaceuticals targeted for Medicare price negotiations. But the process is private, so it is unknown what those offers are.
• Two pharmaceuticals that have been in the headlines — the controversial Alzheimer’s disease drug Aduhelm and the insulin Levemir — will soon be pulled from the market. The decisions to discontinue them play into an ongoing debate in drug development: When is innovation worth the price?
• “This Week in Health Misinformation” features an article by KFF Health News’ Amy Maxmen about how what once were fringe views questioning science are now becoming more mainstream.

Also this week, Rovner interviews Samantha Liss, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” feature, about a husband and wife billed for preventive care that should have been fully covered. If you have an outrageous or confounding medical bill you’d like to share with us, you can do that here.

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

Julie Rovner: ProPublica’s “Amid Recall Crisis, Philips Agrees to Stop Selling Sleep Apnea Machines in the United States,” by Debbie Cenziper, ProPublica, and Michael D. Sallah, Pittsburgh Post-Gazette.

Joanne Kenen: The New York Times’ “Elmo Asked an Innocuous Question,” by Callie Holtermann.

Sarah Karlin-Smith: The Texas Tribune’s “Texas Attorney General Requests Transgender Youths’ Patient Records From Georgia Clinic,” by Madaleine Rubin.

Sandhya Raman: The Associated Press’ “Community Health Centers Serve 1 in 11 Americans. They’re a Safety Net Under Stress,” by Devi Shastri.

Also mentioned on this week’s podcast:

• Politico’s “The Anti-Abortion Plan Ready for Trump on Day One,” by Alice Miranda Ollstein.
• The 19th’s “The Tools Trump Cold Use to Curb Abortion Access if He’s Elected,” by Shefali Luthra and Mel Leonor Barclay.
• The New York Times’ “How Trump Could Institute a Backdoor Federal Abortion Ban,” by Mary Ziegler.
• CQ Roll Call’s “GOP Pivots on Abortion Stance as 2024 Nears,” by Ariel Cohen and Sandhya Raman.

click to open the transcript

Transcript: The Struggle Over Who Gets the Last Word

KFF Health News’ ‘What the Health?’Episode Title: The Struggle Over Who Gets the Last WordEpisode Number: 332Published: Feb. 1, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We are taping this week on Thursday, Feb. 1, 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 Joanne Kenen of Johns Hopkins University and Politico Magazine.

Joanne Kenen: Good morning, everybody.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Hello, everyone.

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

Sarah Karlin-Smith: Morning.

Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Samantha Liss, who reported and wrote the latest KFF Health News-NPR “Bill of the Month.” This month’s patient — actually, patients — got unexpected bills for care that should have been fully covered.

Before we get to this week’s news, it is February, so that means we want your health policy valentines. We will put a link to submit in our show notes. It’s on our web page at kffhealthnews.org. Show us, and your valentine, your affection for nerdy health policy topics. Winners will get read on the podcast and shared on our webpage and social media. The top poem will get its own illustration by our amazing in-house artist, Oona Tempest, so get those entries in.

OK, now the news. We will start this week in federal court where March is starting to look like “Health Policy Month.” At the 5th Circuit in New Orleans, judges will hear arguments in the case Braidwood v. Becerra, which challenges the very popular provision of the Affordable Care Act that requires insurers to cover a long list of preventive services at no out-of-pocket cost to patients. Fun fact: This is the provision in question in the latest “Bill of the Month,” which you will hear about in a few minutes. Another fun fact: The lower-court decision in this case came from Judge Reed O’Connor, whose name might sound familiar because he was the judge who tried to strike down the entire Affordable Care Act back in 2018. Somebody remind us why the plaintiffs here think the preventive services mandate is unlawful and should be stricken?

Raman: One of the issues that they have in this case is that certain types of this preventative care are in question — so, some of the things related to women’s health, vaccines, PrEP for preventing HIV, and just the moral issues that they have that those things do not necessarily need to be applied to under their plan. It’s some of those things in particular that come up.

Rovner: Yeah. I think in this case it seems to be mostly PrEP. It seems to be mostly about not wanting to encourage homosexual behavior, as the plaintiffs are saying, which is a rerun of what we had with the birth control cases, which went on, also for this provision of the ACA. No matter what happens in this case, Braidwood is sure to be appealed to the Supreme Court, which already has two health-related cases set for March oral arguments.

On March 18, the justices will hear Murthy v. Missouri, which challenges the government’s ability to coordinate with social media companies to downplay medical misinformation. The attorneys general of Louisiana and Missouri are arguing that the Biden administration essentially worked to censor conservative views. The Murthy in this case is Surgeon General Vivek Murthy, on whose behalf the Justice Department called the lower-court ruling seeking to bar communication between the White House and federal health agencies with social media companies, quote, “novel, unbounded, startling, radical, and ill-defined.” This could be a really important case for those trying to rein in medical misinformation, right? I mean, it’s obviously a really delicate thing. What serves as medical misinformation when the government gets to say, “Really, it should be at least de-algorithming,” if that’s a word, “this stuff because it’s not correct.”

Karlin-Smith: Right. I think one of the questions here is was the government collaborating and just sort of discussing and flagging these concerns to the companies, or did they exercise some sort of undue leverage here? Which is a big debate. Obviously, a private company has different ability to also regulate speech on its platform than the government does. So that’s another element to the case. I think sometimes people get confused about what your free speech rights are when you’re not directly dealing with the government in the U.S.

Rovner: Yes, there’s no guaranteed free speech in a private space like social media. I mean, they are not government-run. Although, I guess one of the arguments here is that they may be government-involved. I guess that’s what this case is supposed to try and create the guidelines for, but it’ll be … I’m looking forward to actually listening to these oral arguments.

Well, the following week, on March 26, the Supreme Court will hear the case FDA v. Alliance for Hippocratic Medicine, which is the one where conservative doctors challenged the original year 2000 approval of the abortion pill mifepristone. Technically, the justices are no longer considering canceling the original approval. They’re considering rolling back the FDA’s loosening of restrictions on the drug in 2016. But still, that alone could be a big deal, right? Sandhya, you’ve been following this, have you?

Raman: Yeah. Yeah. The Supreme Court decided at the end of last year that they would be taking up the case. So this week they set the actual oral arguments that we can look forward to. That’s going to be the first big abortion case that they’re going to hear since Dobbs. We have another abortion case coming up in April related to emergency health care. I think that it is interesting that it’s not over the full approval of the drug, it’s the regulations, but if you …

Rovner: Well, that’s because the 5th Circuit rolled back the original decision.

Raman: Yes. But I think that if you look at how much the regulations have changed since the original approval, there’s been a lot of expansion in just how it can be used, who can prescribe it, where it can be used, that kind of thing. So even if they were to rule to rescind some of those regulations and keep the original approval in place, that could have a huge effect in terms of who can get it. I mean, since the initial approval, we’ve been allowed to distribute it by mail, we’ve been allowed to do by telehealth to prescribe it. Just the length into pregnancy that it can be used, there’s been a lot of changes there. So we’ll have that to watch. The briefs have all started coming in, at least in favor of keeping the regulations as they are. We’ve had a huge lawmaker brief from a lot of Democrats. We had one from a lot of the pharmaceutical companies, including some big ones like Pfizer and Biogen.

Rovner: Yeah. I noticed in the PhRMA brief — or the pharmaceutical companies’ brief; I don’t believe it was from PhRMA the organization yet. But they did say that they were worried that if the court even were to uphold the 5th Circuit decision, which doesn’t cancel the approval but would cancel all of the changes since 2016, that that would basically freeze in place the use of drugs as we discover new uses for the same drugs. I mean, if you can’t relabel and put them out in a different way for different things, that would be a big hit to the drug industry, which, Sarah, spends a lot of time repurposing existing drugs, right? That’s a big part of drug development.

Karlin-Smith: Right. Improving upon a drug once it gets approved, expanding the label to treat different conditions is a big thing. The underlying tension for the pharmaceutical industry here is that there is a concern that this is the courts weighing in on sort of questioning the scientific judgment of the FDA in a way that would just make our whole drug approval regulatory system not function well for the industry, regardless of whether you’re talking about an abortion drug or a cancer drug or an arthritis drug. That’s really why there’s so much engagement from folks who are not necessarily here to argue about abortion politics. It’s just this concern that there’s certain scientific expertise and deference that we feel like the FDA should have, and that there’s concern that courts don’t really have that ability to accurately second-guess their judgments there.

Rovner: This really harkens back to what we’ve been talking about for the last couple of weeks with this big Supreme Court case on Chevron deference, which is basically the question of whether judges get to decide how to interpret federal laws or whether courts get to decide. This obviously would be a big deal because judges are not generally people with the expertise that doctors and scientists at the FDA have, right? Isn’t that sort of a big piece of this case too?

Kenen: Yes. We know that this particular court is anti-abortion. If they had just sort of a birthday cake wish, they would make the abortion pill go away. The question is where are they going to come down on who gets to decide? Is this an FDA decision or is this a legal decision elsewhere in the system? That’s the mystery. We really don’t know. In some ways, too, with the prior case we were just talking about, about preventive care, the USP has a lot of … the U.S. Preventive …

Rovner: Services Task Force.

Kenen: Who decides? What’s their authority? Which is part of the underlying legal battle in that case. So, are they anti-abortion? Yeah. Six, we know, are. Are they anti-FDA? Are they going to find some legal rationale for pulling this out of the FDA, with leaving other drugs in the FDA? That’s sort of part of what we’ll be watching for. Not just us. I mean, that’s what it comes down to.

Rovner: I was going to say, even the social media case, I mean, all of these cases are basically about scientific expertise and who gets to have the last say on questions of science and medicine. I mean, literally, all of these cases are about the same thing when you come right down to it.

So while we are on the subject of abortion, former South Carolina governor and, still, Republican presidential candidate Nikki Haley has been dodging questions about a federal abortion ban by pointing out that if neither party has 60 votes in the Senate, nothing can pass. Which is true as long as there’s still a filibuster. Well, it seems that the anti-abortion movement took that as a challenge. Two of our podcast colleagues, Shefali Luthra and Alice [Miranda] Ollstein, have eye-opening stories this week about all the things that President Donald Trump could do, if he’s elected again, without Congress. Some of those are things that he did in his first term that President Biden reversed, but some are new ones too. They’re already vetting people to carry out those policies. It looks like they want to be ready on day one. At least the anti-abortion forces want to be ready on day one, to do kind of a full-court press on anything that they consider to be abortion related.

Raman: Yeah, I think there have been, in the past, some of these policies that have gone back and forth between each administration. So something like Title X, the family planning program. Depending on if we have a Democrat or a Republican in office, they change what some of the regulations are there, but then …

Rovner: They basically kick Planned Parenthood in or out.

Raman: Yeah, things like that. Or like the Mexico City policy, which does something in a similar … but for overseas funding. And we’ve had also a ton of different new regulations since the Dobbs decision, in the Biden administration making it a little easier if you are, in certain cases, needing an abortion and are in the VA, in the Defense Department, things like that, that have been big issues for a lot of Republicans. So they would also have to — it’s more of a new territory to figure out how to roll back some of those compared to some of the things that they have a standard plan on.

But if you look at both of our podcast colleagues’ stories, one that stuck out to me was just kind of how they would have the FTC [Federal Trade Commission] try to crack down on abortion by mail, which comes back to the court case we were just discussing, abortion medication, abortion. And just how you could reinterpret some of the existing regulations that we do have regardless of what happens at the Supreme Court.

Karlin-Smith: I was going to say one thing that really stuck out to me in one of The New York Times pieces about this was how even the Trump administration could basically have their HHS [Department of Health and Human Services] secretary override FDA decisions, because we sort of forget that, actually, the way Congress has written a lot of the laws, actually, the HHS secretary has that ultimate authority around drug approvals. We just sort of take it for granted, I think, that for the most part they delegate that to FDA and the political appointees stay out of it. That’s another thing they raise is you could have sort of a more activist HHS secretary that could interfere with what does or doesn’t get approved by FDA. So there’s some pretty norm-ending ideas there for the government.

Rovner: I will say that I do remember Kathleen Sebelius came in and overrode an FDA … about contraception coverage decision. President [Barack] Obama made it clear that he asked Secretary Sebelius to override the FDA, but I think that was more to protect the FDA. Made it clear that this was a policy decision, not a medical decision. I know that they struggled with that a lot. For exactly the reason that you’re saying, that they didn’t want this to become normal, to have the secretary override the decision of the FDA.

Kenen: But that was a big controversy and someone at the FDA quit over it. I think it was the women’s health person. In that case, it was narrow. It was about, if I’m remembering correctly, Julie has a, sometimes, better memory, it was under-18 access to the morning-after pill, right? It was about 10 or 12 years ago.

Rovner: It was 2011 because it was the night my dog had her leg surgery and I had to come back to the office at 1 in the morning because we didn’t think that the secretary was going to override this decision.

Kenen: No, I said 10 to …

Rovner: I remember it really vividly.

Kenen: … 10 to 12 years ago. Yes, it was, then, 12 years ago. There hasn’t been a high-level repetition of that that I can think — of a HHS override. I mean, that’s one reason why the former FDA commissioners maybe … Julie, you and I were both at Aspen that year. It was maybe eight years ago or nine years ago where all the former FDA commissioners came together and called for the FDA to become an autonomous agency, sort of like the SEC [Securities and Exchange Commission], which was a proposal that then fell in a pond and was never heard from again. But that would prevent that kind of political interference. I mean, I actually spoke to a former FDA commissioner sort of recently and said, “Whatever happened to that?” And he said, “Wait.” So apparently they haven’t totally forgotten. We’re going to see reiterations of this fight over absolutely everything for the indefinite future: Who gets to decide?

Rovner: Yeah, I do think, like I was saying, that this is basically all about who gets to make medical and scientific decisions and whose, quote-unquote, “opinion” holds. Well, before we get off of this totally, both Alice’s and Shefali’s story, and an op-ed by University of California-Davis law professor Mary Ziegler, who’s also been on this podcast, talk about the revival of the Comstock Act. We have talked about this before and we surely will again, but somebody remind us what this 1873 law does and how it could be applied to abortion.

Karlin-Smith: In simple terms, it’s to prevent sending what are considered, quote-unquote, “obscene materials” through the mail. What that can refer to has been interpreted in different ways over the years. I mean, some of the … when it’s from the 1800s, it’s before we had medication abortion. It’s before we had the internet and telemedicine and all of these things. So there’s a lot of room that people have seen for just how it can be reinterpreted now with a lot of different things in place compared to over a 100-and-some years ago, and just how that can work in certain favors.

Rovner: I think I’ve said this before, now that we’re talking about the Comstock Act again, I realize that Anthony Comstock, who it is named after, was not a member of Congress. He was just an anti-smut crusader, basically. I believe the phrase, “You can’t send anything lewd or obscene through the mail.” This would be how they could sort of use it to say that anything abortion or possibly even contraception could be lewd or obscene. With all of this, that the Republicans are getting ready, or at least the anti-abortion groups are getting ready to do, Sandhya, you have a story out this week pointing out that abortion is not something Republicans are emphasizing on the campaign trail. Why not? There seems to be an awful lot of enthusiasm on that side.

Raman: It is pretty interesting. I mean, even if at this point it’s looking like we’re going to have the Round Two of the Trump-Biden matchup, if you look at how Trump, and then even Nikki Haley, have been messaging, all their ads, all that, they have not been as strong on anti-abortion issues as they have in the past. They’re both people that — both of them I’ve covered addressing annual Susan B. Anthony List events. I’ve covered March for Life where Trump has addressed them. They’ve both been very strong on this issue. And then, as you look at it now, neither of them have been really strong on committing to signing a national ban. Haley has really sidestepped the issue in a lot of the interviews that she’s done, just because, like you said, the Senate filibuster. I think even Trump has … they’ve been messaging on him being the most pro-life president that they’ve had. He’s just kind of sidestepped it as well, just kind of emphasizing other things. If you look at the advertising they’ve been doing, it’s not focused on this. It’s such a stark contrast to what the Biden campaign has done, which has really gone all in on abortion rights. They even had an all-reproductive-rights-themed rally a couple weeks ago.

Kenen: When Trump did the town hall on Fox, two, three weeks ago, whenever that was, he had it both ways, which meant that there’s a film clip to use whoever you’re advertising to. Within a minute and a half or two minutes or whatever it was, Trump took credit for knocking down Roe. He took credit for … “I accomplished that.” In other words, he appointed the justices or some of the justices that voted for that. So he took credit for finally being the one to get rid of abortion after 50 … get rid of Roe after 50 years. He was very …

Rovner: Which is true.

Kenen: It’s true. Well, both things he said were true because he took credit for that. So there’s your film clip one for that ad, or that message, or that social media, or whatever, direct mail. Whatever you want to use it for. It’s “I am the one.” And it’s true. And then, in the next breath, he said, “But we have to win elections.” He’s also said he’s for a … is it rape and incest or just rape? I think it was both. He’s for that exception. And then he talked about, “Face reality, we have to win.” Which is also a true statement if you’re running for president. You have to win or you don’t get to do these things that you’ve promised. So, I mean, he’s not the first politician or the last to try to have it both ways. It was interesting that he had it both ways, both accurately, in a two-minute conversation.

Rovner: Not that uncommon for him, though …

Kenen: No, but …

Rovner: To take both sides of an issue at the same time.

Kenen: He was so unabashed about it, it was sort of interesting that, “I did this, but maybe I won too much. Maybe it wasn’t …” I mean, at the polls, abortion has won.

Rovner: Yeah.

Kenen: Anytime there’s been a single-issue vote on abortion, the pro-choice people have won every ballot initiative since Dobbs.

Rovner: Yeah. And yet the other ironic thing, I mean, Sandhya, you already mentioned this, that the Biden administration is going all in on abortion because they know that Democratic women and independent women in most polls are supportive of abortion rights and not supportive of the Dobbs decision. On the other hand, Biden himself is an unlikely messenger for this. He’s a Catholic man of a certain age. He’s always been uncomfortable with this issue. He was pro-life early in his career. There was a joke that he didn’t even say “abortion,” I think, until a year into his presidency. There was an actual website that said, “Has Joe Biden said the word abortion yet?” So is he going to be able to bring along all of these people because they’re just going to, “If you support abortion rights, you’ll just vote for anybody not named Donald Trump”?

Raman: I mean, I think that we’ve already seen some of these different abortion-oriented groups really mobilize or kind of illustrate, commit how much money they’re going to spend, all the on-the-ground stuff they’re going to do to get him reelected. They have called out some of the things that he’s done, some of the regulations we’ve already talked about, that kind of thing. But I do get the sense that some of them are frustrated that we haven’t done enough. But I mean you could say the same for the other side. There’s always more that people want. Given the limitations of government when you don’t have the trifecta, and even when you do have the trifecta, if you don’t have enough of a majority to get some of your golden-ticket items done. So I think that it will be interesting to watch. I mean, we even, going forward, for the State of the Union coming up, they’ve already announced that they’re going to have … one of the guests is Kate Cox, the Texas woman who had to travel when she wasn’t able to get the court order to get the emergency abortion.

Rovner: Yeah.

Kenen: I mean, it’s a turnout issue. We know that voters are not enthusiastic about either candidate. We know that, right? I mean, will that change as the election gets closer? Who knows? But right now, many polls are finding that America’s not crazy about this particular rematch. So what are the issues that motivate people who are lukewarm to actually vote? This is going to be on both sides. This is going to be an issue, but the intensity in many ways is going to be on the Democratic side because they’re, just like it used to be, the one fighting for change. The one on the out is the one more likely to have that voter intensity. For 50 years, it was the Republicans. For the last 18 months, it’s been the Democrats. Vice President [Kamala] Harris has been talking about this. A lot of the other surrogates are talking about this. So this is a “Will this make you get out of whatever else you were going to do that Tuesday, or early vote, and actually vote?” It’s going to be one of the key issues in turnout.

Karlin-Smith: I think that’s a great point, that that is another reason why there’s so much Republican messaging on some of these other issues, on immigration, on crime and things like that. Because when it’s not a single-issue thing like the ballot — they’re still winning tons of races for governor and things like that. Maybe focusing on those issues might be good for them to boost some of the turnout.

Rovner: Well, another big issue that voters care about is drug prices. We actually have a lot of drug news this week. The federal government, just this morning, sent out its first set of proposed prices for the 10 drugs they have selected for Medicare price negotiation. Of course, they’re not telling us those prices because this is a private negotiation. But Sarah, did anything jump out at you from what they’ve said about kicking off this process?

Karlin-Smith: I think right now what the Biden administration is trying to do is just sort of publicize that this process is happening. Because again, this is a big political issue, an election thing that they’re hoping will motivate voters. But at the same time, it’s a little bit of a dud in some ways because the government can’t say what they’re offering and the companies don’t necessarily seem inclined to put out any information on this yet. So it’s going to be a pretty private process, potentially all the way up until this fall, in September, when we’ll get some public information. But I think the Biden administration just wants to keep ramming it into voters’ heads that, “Hey, we’re doing work to try and lower drug prices for people as much as we can.”

Rovner: Of course, the drug industry still hopes that some court will overrule and stop this whole thing, right?

Karlin-Smith: Right. There was actually oral arguments yesterday in one of the challenges from AstraZeneca to … that they’re hoping courts will intervene. I think some of the initial reporting from that was that the judge was fairly skeptical of some of AstraZeneca’s arguments, such as that there’s sort of a due process or taking of property that the government is not allowed to do here. The judge was basically saying, “Well, nobody is forcing you to participate in the Medicare program and sell your drugs there.” So some initial, at least, positive signs for the government in those oral arguments.

Rovner: Yeah. Although, as we know, they have a long way to go. In the individual-drug news category, remember when we were talking all about the controversial Alzheimer’s drug, Aduhelm, pretty much every week? Well, it is back and it’s sort of gone, or going, at least. Drug company Biogen is giving up ownership and prematurely ending a trial that was supposed to confirm the drug’s effectiveness in treating early Alzheimer’s. Sarah, you followed this from the very beginning. What do you take away from this whole saga? I mean, at one point, Aduhelm was going to be the answer, and then it was going to break Medicare because it costs so much. And then it was going to make people sick because it had side effects. And now it’s just going away.

Karlin-Smith: There’s so many layers to this story, but the quick version of it is, basically, FDA sort of controversially approved this drug over a lot of skepticism of whether it was actually going to be beneficial to patients. They use sort of a controversial measure that the drug reduced these amyloid plaques in the brain, but there were a lot of questions, including by outside scientists and so forth, as to whether this would actually improve the lives of patients with Alzheimer’s in terms of helping them function and memory. There’s a lot of side effects to the drug. Of course, the third layer of this is it was priced quite costly. What ended up happening was Medicare said, “We will only cover this drug at this point in time if it’s used in a clinical trial.” Part of what happened, I think in large part because of that, is there was no uptake of this product, no sales. That’s really why Biogen has pulled the plug here. The other element of this is that Biogen also has another Alzheimer’s drug that was approved fairly shortly thereafter that actually has better data to show there’s some benefit in actually improving people’s cognition. So again, they’re not necessarily invested in pushing forward a drug where they face all these payment challenges and have less solid data. The question now becomes, what does FDA do here? Do they officially go through the process and make sure … force Biogen to pull it off the market? What do they do about this clinical trial that they were supposed to be conducting to confirm the benefit? And what does science lose if that just gets stopped? I’m not sure if anyone will feel like there’s a need to complete that at this point. But it does raise interesting questions to me because I think about 1,500 or something patients were actually already enrolled in participating in that study.

Rovner: But I do think it’s important to emphasize that since Aduhelm was sort of all the rage, the big debate, we actually are finally seeing some drugs that do appear to have more benefit than cost for early Alzheimer’s. I mean, not a cure, but at least a slowing of the deterioration, right?

Karlin-Smith: I guess I think people are sort of cautiously optimistic about these drugs. They’re excited. Nobody thinks these are the holy grail yet of Alzheimer’s treatments. I think even some of the CEOs of the companies working on them have acknowledged that, but they do seem to offer some benefit. Again, there’s still a lot of these brain-swelling safety events that can be fairly devastating. So I think people are going to be watching really closely. Because usually what we know when a drug is initially approved is a fraction of what we end up knowing over time. So I think it’s still early days, but there is some hope that we finally sort of maybe cracked the code on some of the mechanisms of action of how to treat Alzheimer’s.

Kenen: Like with other drugs in cancer, elsewhere, sometimes you just need the first-draft drug. Hopefully, this isn’t the best we’re going to get. These new drugs that are showing some promise and some slowing down is sort of a proof of concept. Yes, you can make a drug that works. In other fields, too, you ended up … the first drug wasn’t a great drug, but it was a leap ahead in terms of understanding the science. So the fact that we have anything that does anything, scientists do consider that they don’t really understand Alzheimer’s, but it matters that there’s some effect. It’s not next week or next year, but there’s a goal that you can see. I think if you’re an Alzheimer’s researcher who’s spent their life not seeing a lot of tangible results, this is like a glimmer. Maybe more than a glimmer. I mean, this is like, “OK, we’re learning how to do this.”

Karlin-Smith: That was actually one of Biogen’s arguments, I think, for why Aduhelm should have been approved in the first place. Maybe even some folks at the FDA basically saying, “Look, we know this maybe isn’t the home run, but if you don’t approve these products, people are just going to leave this space and not invest in it and not keep trying to bring forth drugs.” I mean, there are people that vehemently disagree with that argument, that that’s the best way to encourage the right innovation for this country, but that wasn’t an argument you saw from industry and even some at the FDA, I think.

Kenen: But I wasn’t talking about Aduhelm specifically. I mean, the other ones that are in the pipeline that are coming out. I mean, it’s new and we don’t really know much about them yet. But the past Alzheimer’s drugs were basically useless or really limited use. These might be what we will later look back on as the first draft as opposed to another failure.

Rovner: I want to move on to another drug that’s being discontinued. European mega drugmaker Novo Nordisk has announced its ending production of a long-acting insulin, Levemir — I think that’s how you pronounce it — that, coincidentally, is one of the insulins that it slashed prices on last year under pressure from lawmakers. The announcement came the same week the company announced it would double the availability in the U.S. of its blockbuster weight loss drug, Wegovy, and the same week that the company hit $500 billion in market value. While there are substitutes for the insulin, for Levemir, many of its patients say this particular product is the best one for them, and there isn’t a one-to-one substitute. I guess this is a reminder that for drug companies, the prime goal is turning profits for their shareholders. I mean, they’re making a lot more money off of these weight loss drugs than they are off their diabetes drugs. We know that the weight loss drugs were in shortage because they couldn’t make enough of them. So you don’t have to be really good at math to kind of put two and two together here, right?

Raman: Right. I’m not sure they’re necessarily even hiding that fact, to some degree. They basically lowered the prices of a lot of these insulin products because of changes in the Medicaid rebate program, where because these products had their prices raised so much over the years, they were going to be subject to new inflation penalties, where they’d essentially owe Medicaid money if they didn’t lower the price. So now you have these older insulin products with lower prices that don’t make them as much money. And Novo Nordisk, in the insulin space, has innovated over the years and made some improvements. So they want to focus on selling their insulin products that they can sell at a higher price point. But again, you get patients who say, “Look, this older drug, actually, I personally, think works better.” And there’s a benefit to patients that it’s cheaper. This is, I think, an old story in the pharmaceutical space that sometimes is looked upon by lawmakers, which is, they innovate and they push patients onto newer products, but is the innovation really worth the price or should people have some way to choose the older product for the lower price if they think it works fine for them?

Rovner: Speaking of drug company profits, the CEOs of Merck and Johnson & Johnson have voluntarily agreed to testify before the Senate Health Committee — meaning that Chairman Bernie Sanders won’t have to subpoena them after all. The hearing is scheduled for Feb. 8. But it’s not about any specific legislation, this is just a chance for Sanders to lecture the CEOs about their high prices, Sandhya?

Raman: Essentially, yes. I think, also, it’s been such a big issue for him. Even if you look back when we had the various nominees, that they wanted to … that would go through his committee where he said that he really wanted more action on this. So I think it’ll be interesting what he brings up, and if there’s a clear pathway of something to move forward since this has been such a big issue for him for a while.

Rovner: Well, he successfully made me want to watch this hearing. We’ll see how it goes. All right. Well, let us turn to “This Week in Health Misinformation.” In addition to that case that the Supreme Court will hear, that we talked about at the top, we have a story from my new KFF Health News colleague, Amy Maxmen, about how what used to be fringe anti-science views are now mainstream among Republicans in general. Vaccine hesitancy has gone up. And that’s hesitancy even to long-proven childhood vaccines, not just the covid vaccine. While trust in science in general has dropped, according to numerous polls. In Florida, Gov. Ron DeSantis has made public health conspiracies part of his platform. And as a presidential candidate, he said he would’ve considered nominating noted conspiracy theoretician and anti-vaxxer Robert F. Kennedy Jr. to run the CDC [Centers for Disease Control and Prevention]. I’ve certainly seen more pushback in my reporting of things that people used to agree on. I assume you guys have too. I mean, it harkens right back to our original theme of who gets trusted when they talk about science and medicine.

Karlin-Smith: I think one of the interesting things that Amy’s story really points out very well, that people have been talking about a lot since the beginning of the covid era, is that this anti-science or anti-vaccine attitude has really become embedded in people’s personal identity and personal politics in a new way. Once it becomes part of your political identity, the experts are saying, it becomes much harder to change people’s views. That’s seen as one of the key problems right now, because, again, providing facts or just rebutting the information doesn’t seem to work when you’re basically sort of attacking somebody’s core identities and beliefs.

Rovner: Yeah, it’s an interesting subject, how we’re sort of freezing a lot of these things in place.

Kenen: Well, it’s also tied up with liberty and freedom in a way that has been part of the anti-vax movement for a long time, but it was a much smaller thread. Right now, this individual liberty or medical freedom, “You don’t have the right to mandate anything,” that “It’s my body.” Now, that’s fine if it’s really only your body, but when you’re talking about infectious diseases, it’s everybody’s bodies. Anti-vaxxing is across the … there are people on both the left and right who are against vaccination. That has changed in the intensity and the politicization on the right, during covid and since covid, and this medical freedom movement, which is sort of a subsection of libertarianism. We tend to talk about anti-vaxxers and anti-vaccination because that’s the most salient thing in the last few years, but there is a broader distrust of expertise, period. Scientific expertise, medical expertise, everything. I mean, some of you know I’m writing a book. We turned in the first draft this very morning. Misinformation is part of the book, and disinformation. This decline, when I was researching … it wasn’t that America was a really trusting society. I was surprised. Going back in history, we’ve always [had] pretty high distrust rates of many major institutions, but it’s much higher in health, medicine, science, public health right now.

Rovner: It’s not just the U.S. We’re seeing this around the world, basically, since the pandemic.

Kenen: It’s tied into the pandemic. It’s tied into the research of populism, a right-wing form of populism. It’s tied into a whole anxiety. The last few years have been really hard on people. Science didn’t have the answers and quick fixes that people wanted, because science is incremental, and people wanted instantaneous fixes. They didn’t understand the incremental changing nature of science, and scientists didn’t always explain it well enough. So it’s here to stay for the near future. It’s pretty insidious because it’s way beyond vaccines.

Rovner: I’m sure we will talk about it more. Well, that is this week’s news. Now we will play my “Bill of the Month” interview with Samantha Liss, and then we will come back with our extra credits.

I am pleased to welcome to the podcast my colleague Samantha Liss, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” installment. Thanks for joining us, Sam.

Samantha Liss: Hi.

Rovner: So, this month’s patients, a husband and wife, got some mysterious bills for preventive care that they thought should have been free. Tell us who they are and what they got.

Liss: Yeah. So this month we bring you Chantal Panozzo and her husband. They live outside Chicago. And they underwent their first colonoscopies last year, after turning 45.

Rovner: Then, as we say, the bill came. Now, colonoscopies are very much on the list of preventive services that are supposed to be available at no out-of-pocket cost to patients. So there really shouldn’t even have been a bill. How much was the bill and what was it for?

Liss: Yeah. So their insurance company paid for the screening, but there was a separate $600 charge for something called “surgical trays.” Supplies you’d expect to be covered.

Rovner: Yeah. It’s like saying, “We’re going to charge you rent for lying on our table.”

Liss: Exactly.

Rovner: Chantal Panozzo knew that there shouldn’t be a charge. After getting no good explanation from her insurer or the gastroenterology practice, she went to complain. She went pretty much everywhere she could, right?

Liss: Yeah. Chantal is a savvy consumer, and she was furious. She lodged an appeal with her insurer, she filed a formal complaint with state regulators in Illinois, and she wrote to her elected officials.

Rovner: So what eventually happened?

Liss: She won, but she’ll tell you she did not feel victorious. Her insurer waived the bills for her and her husband, and they didn’t owe anything, but it was a months-long slog. I think seven months in total.

Rovner: Just to be clear, it was actually the insurer that she appealed to, and she won that appeal.

Liss: Yeah. I think part of what helped push that appeal along was her complaint to the Illinois Department of Insurance.

Rovner: So, doing all of those things apparently helped. It turns out that the couple uncovered quite the loophole in the preventive services mandate. What is that and how can others avoid falling into the same trap?

Liss: Yeah. Under the law, the insurer bears the legal burden to pay for preventative care. There’s no requirement on providers to bill a certain way. So I think as we tell all our folks who read and listen to our “Bill of the Month” series, never pay the first bill. Wait until you get your explanation of benefits, and if something doesn’t feel right, ask questions.

Rovner: So basically, people can go in and get care that they expect and should be free and get random charges, and they can complain about those, right?

Liss: Exactly. And I think Chantal’s example shows sometimes you have to fight so hard and for so long to get something waived that you shouldn’t have been charged for to begin with. It’s maddening and it ticks people off.

Rovner: And if all else fails, you can send your bill to us.

Liss: Yes, please do.

Rovner: Sam Liss, thank you very much.

Liss: Thanks.

Rovner: OK, we’re back. 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Joanne, you have my favorite this week, why don’t you go first?

Kenen: I told Julie that Elmo didn’t want her to get sad if I was going to do this one, and she didn’t. I’m sure almost everybody saw the Elmo phenomenon this week. The particular story that I’m referring to is by Callie Holtermann in The New York Times, “Elmo Asked an Innocuous Question.” And then there’s this wonderful sub-headline, “Elmo was not expecting it to open a yawning chasm of despair.” Elmo tweeted or X’ed, whatever you call it … I mean, it wasn’t really Elmo, it was his human. Elmo is just checking in, “How is everybody doing?” There were tens of thousands of views. Last time I looked, there were more than 16,000 responses. I did not read all 16,000, but people really are not happy. And they told Elmo that. It just became this sort of mass confessional to Elmo of all the things that people were feeling despair about. And then Elmo ended up saying something like, “Wow, Elmo is glad he asked.” So I don’t know if Elmo has now become our national shrink, but to a certain extent this week, he was.

Rovner: Absolutely. Sarah?

Karlin-Smith: I looked at a piece from The Texas Tribune about not quite an amazing topic, maybe. The “Texas Attorney General Requests Transgender Youths’ Patient Records From Georgia Clinic,” by Madaleine Rubin. It basically looks at a trend where Texas seems to be trying to not only control what is happening to the care of transgender children within their state, but trying to maybe intimidate or prevent care from happening out of state by going after telehealth providers, but maybe even trying to request records related to people that have traveled outside of the state to get care because they can’t get it in the state. It reminds me a bit of some of what some of these states are also trying to do in the abortion space as well, but raises interesting questions about whether the state really has the authority to interfere here and so forth.

Rovner: Yeah, Texas is obviously fighting this border issue, too, with the federal government. So Texas is trying to basically see how far it can press its authority, in general. Sandhya?

Raman: My pick this week is called “Community Health Centers Serve 1 in 11 Americans. They’re a Safety Net Under Stress.” It’s from Devi Shastri at The AP. I just thought it was a great look at some of the challenges, some new, some evergreen for the 1,400 federal community health centers that provide medical care, social services, and so much for so many folks in the country. It just looks at some of the issues. In Congress, there’s always the periodic federal funding drama of just, “When will community health centers get funded?” And, “They can’t long-term plan on that.” That and just how the staffing concerns, whether it’s money or quality of life, or just how they can address new health equities and things like that.

Rovner: It was a really good story. My extra credit this week is from ProPublica. It’s a coda to a series of stories that they’ve been working on, and we’ve been talking about over the past several years, after reporters at our fellow nonprofit newsroom helped uncover serious defects in the CPAP breathing machines manufactured by Philips Respironics, and the company’s failure to report complaints about the foam in those machines crumbling and getting into patient’s lungs. The company finally issued a recall. Then, apparently, the replacement foam also started to deteriorate, which also became a subject of the series. Now the GAO is investigating the FDA’s oversight of medical devices, and a federal criminal probe is being sought for Philips. And now, at least, the company will stop selling the machines in the United States. So journalism works, particularly when reporters keep at it. And boy, did they keep at it on this story.

OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left a review; that helps other people find us, too. Special thanks, as always, to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Joanne, where are you hanging out these days?

Kenen: I’m mostly on Threads @joannekenen1.

Rovner: Sarah?

Karlin-Smith: I am @SarahKarlin or @sarahkarlin-smith.

Rovner: Sandhya?

Raman: I’m still with X and on Bluesky, @Sandhya@Writes.

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

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Julie Rovner
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Julie Rovner is chief Washington correspondent and host of KFF Health News’ 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.

Based on the results of the first-in-the-nation primary in New Hampshire, it appears more likely than ever before that the 2024 presidential election will be a rerun of 2020: Joe Biden versus Donald Trump. And health is shaping up to be a key issue.

Trump is vowing — again — to repeal the Affordable Care Act, which is even more popular than it was when Republicans failed to muster the congressional votes to kill it in 2017. Biden is doubling down on support for contraception and abortion rights.

And both are expected to highlight efforts to rein in the cost of prescription drugs.

This week’s panelists are Julie Rovner of KFF Health News, Alice Miranda Ollstein of Politico, Anna Edney of Bloomberg News, and Jessie Hellmann of CQ Roll Call.

Panelists

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Anna Edney
Bloomberg

@annaedney

Read Anna's stories.

Jessie Hellmann
CQ Roll Call

@jessiehellmann

Read Jessie's stories.

Among the takeaways from this week’s episode:

• Trump had a strong showing in the New Hampshire GOP primary. But Biden may be gathering momentum himself from an unexpected source: Drug industry lawsuits challenging his administration’s Medicare price negotiation plan could draw attention to Biden’s efforts to combat rising prescription drug prices, a major pocketbook issue for many voters.
• Biden’s drug pricing efforts also include using the government’s so-called march-in rights on pharmaceuticals, which could allow the government to lower prices on certain drugs — it’s unclear which ones. Meanwhile, Sen. Bernie Sanders of Vermont is calling on his committee to subpoena the CEOS of two drugmakers in the latest example of lawmakers summoning Big Pharma executives to the Hill to answer for high prices.
• More than a year after the Supreme Court overturned the constitutional right to an abortion, abortion opponents gathered in Washington, D.C., for the March for Life rally, looking now to continue to advance their priorities under a future conservative presidency.
• One avenue that abortion opponents are eying is the 19th-century Comstock Act, which could not only prohibit the mailing of abortion pills to patients, but also prevent them from being mailed to clinics and medical facilities. Considering the abortion pill is now used in more than half of abortions nationwide, it would amount to a fairly sweeping ban.
• And state legislators continue to push more restrictive abortion laws, targeting care for minors and rape exceptions in particular. The ongoing quest to winnow access to the procedure amid public reservations reflected in polling and ballot initiatives highlights that, for at least some abortion opponents, fetuses are framed as an oppressed minority whose rights should not be subject to a majority vote.

Also this week, Rovner interviews Sarah Somers, legal director of the National Health Law Program, about the potential effects on federal health programs if the Supreme Court overturns a 40-year-old precedent established in the case Chevron USA v. Natural Resources Defense Council.

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

Julie Rovner: Health Affairs’ “‘Housing First’ Increased Psychiatric Care Office Visits and Prescriptions While Reducing Emergency Visits,” by Devlin Hanson and Sarah Gillespie.

Alice Miranda Ollstein: Stat’s “The White House Has a Pharmacy — And It Was a Mess, a New Investigation Found,” by Brittany Trang.

Anna Edney: The New Yorker’s “What Would It Mean for Scientists to Listen to Patients?” by Rachael Bedard.

Jessie Hellmann: North Carolina Health News’ “Congenital Syphilis — An Ancient Scourge — Claimed the Lives of Eight NC Babies Last Year,” by Jennifer Fernandez.

Also mentioned on this week’s podcast:

Stat’s “Pharma’s Attack on Medicare Drug Price Negotiation Might Benefit Biden,” by John Wilkerson.

click to open the transcript

Transcript: Health Enters the Presidential Race

KFF Health News’ ‘What the Health?’Episode Title: Health Enters the Presidential RaceEpisode Number: 331Published: Jan. 25, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 25, at 10 a.m. As always, news happens fast, and things might’ve 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: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hi there.

Rovner: And Anna Edney of Bloomberg News.

Anna Edney: Hello.

Rovner: Later in this episode we’ll have my interview with Sarah Somers of the National Health Law Program. She’s going to explain what’s at risk for health care if the Supreme Court overturns the Chevron doctrine, and if you don’t know what that is, you will. But first, this week’s news. We’re going to start this week with politics. To absolutely no one’s surprise, Donald Trump won the first-in-the-nation New Hampshire primary, and even though he wasn’t even on the ballot, because Democrats no longer count New Hampshire as first, President [Joe] Biden handily won a write-in campaign.

Since it seems very likely at this point that the November ballot will pit Trump versus Biden once again, I thought we’d look, briefly at least, at both of their health agendas for now. Trump has once again vowed to try and repeal the Affordable Care Act, which not only didn’t go well in 2017, we learned this week that the federal marketplace enrolled a record 21.3 million people for this year. In 2017, that number was 12.2 million. Not to mention there are now a half a dozen more states that have expanded Medicaid to low-income childless adults.

So with so many more millions of Americans getting coverage via Obamacare, even if Trump wants to repeal and replace it, is there any chance Republicans would go along, even if he wins back majorities in the House and the Senate? They have seemed rather unwilling to reopen this box of worms.

Edney: I mean, certainly, I think that currently they’re unwilling. I don’t want to pretend that I know what the next several months will hold until November, but even before they’re willing or not, what would the plan be? We never saw one, and I don’t anticipate there would be any sort of real plan, particularly if it’s the Trump White House itself having to put the plan together to repeal Obamacare.

Rovner: Yes. How many times did he promise that “we’ll have a plan in two weeks” throughout most of his administration? Alice, you were saying?

Ollstein: Yes. I think what we should be thinking about, too, is this can happen not through Congress. There’s a lot of President Trump could do theoretically through the executive branch, not to repeal Obamacare, but to undermine it and make it work worse. They could slash outreach funding, they could let the enhanced tax credit subsidies expire — they’re set to expire next year. That would also be on Congress. But a president who is opposed to it could have a role in that; they could slash call center assistance. They could do a lot. So I think we should be thinking not only about could a bill get through Congress, but also what could happen at all of the federal agencies.

Rovner: And we should point out that we know that he could do some of these things because he did them in his first term.

Ollstein: He did them the first time, and they had an impact. The uninsured rate went up for the first time under Trump’s first term, for the first time since Obamacare went into effect. So it can really make a difference.

Rovner: And then it obviously went down again. But that was partly because Congress added these extra subsidies and even the Republican Congress required people to stay on Medicaid during the pandemic. Well, I know elsewhere, like on abortion, Trump has been all over the place, both since he was in office and then since he left office. And then now, Alice, do we have any idea where he is on this whole very sensitive abortion issue?

Ollstein: He has been doing something very interesting recently, which is he’s sort of running the primary message and the general message at the same time. So we’re used to politicians saying one thing to a primary audience. These are the hard-core conservatives who turn out in primaries and they want to hear abortion is going to be restricted. And then the general audience — look at how all of these states have been voting — they don’t want to hear that. They want to hear a more moderate message and so Trump has been sort of giving both at once. He’s both taking credit for appointing the Supreme Court justices, who overturned Roe v. Wade. He has said that he is pro-life, blah, blah, blah. But he has also criticized the anti-abortion movement for going too far in his view. He criticized Ron DeSantis’ six-week ban for going too far. He has said that any restrictions need to have exemptions for rape and incest, which not everyone in the movement agrees with. A lot of people disagree with that in the anti-abortion movement. And so it has been all over the place.

But his campaign is in close contact with a lot of these groups and the groups are confident that he would do what they want. So I think that you have this interesting tension right now where he is saying multiple mixed messages.

Rovner: Which he always does, and which he seems to somehow get away with. And again, just like with the ACA, we know that all of these things that he could do just from the executive branch about reproductive health, because he did them when he was president the first time. Meanwhile, President Biden, in addition to taking a victory lap on the Affordable Care Act enrollment, is doubling down on abortion and contraception, which is pretty hard because, first, as executive, he doesn’t have a ton of power to expand abortion rights the way Trump would actually have a lot of power to contract them.

And, also, because as we know, Biden is personally uncomfortable with this issue. So Alice, how well is this going to work for the Biden administration?

Ollstein: So what was announced is mostly sort of reiterating what is already the law, saying we’re going to do more to educate people about it and crack down on people who are not following it. So this falls into a few different buckets. Part of it is Obamacare’s contraception mandate. There have been lots of investigations showing that a lot of insurers are denying coverage for contraceptives they should be covering or making patients jump through hoops. And so it’s not reaching the people it should be reaching. And so they’re trying to do more on that front.

And then, on the abortion front, this is mostly in this realm of abortions in medical emergencies. They’re trying to educate patients on “you can file this complaint if you are turned away.” Of course, I’m thinking of somebody experiencing a medical emergency and needing abortion and being turned away, and I don’t think “I’m going to file an EMTALA [Emergency Medical Treatment and Active Labor Act] complaint with the federal government and hope that they do something” is maybe the first thing on their mind. But the new executive order also includes education for providers and hospitals on their obligations.

This is also something a Trump administration could completely change. They could come in and say, “Forget that guidance. Here’s our guidance, which is no abortions in these circumstances.” So this is a really sensitive issue, but I think that the Biden campaign has seen how people have been voting over the last two years and feels that this is a really good message for them to do something on.

Rovner: Meanwhile, one issue both Republicans and Democrats are trying to campaign on is bringing down the cost of prescription drugs. Stat News has a story this week suggesting that all the lawsuits against the Medicare drug negotiation program could actually help Biden with voters because it shows he’s going after Big Pharma. Frankly, it could also tell voters that the Biden administration actually did something to challenge Big Pharma. Polls show most people have no idea, but Trump can point to lots of lawsuits over things he tried to do to Big Pharma.

Does one or the other of them have an advantage here, Anna? I mean, I know they’re going in different directions, but when you sort of boil it into campaign-speak, it’s going to sound pretty similar, right?

Edney: I think that that’s true, but one of the differences is, at least currently, what Biden’s done and doing some price negotiation through Medicare so far for 10 drugs under his administration is going forward. And you can name the drugs, name the prices, talk about it a little bit more specifically. What Trump ran up against was the lawsuits not falling in his favor. So he wanted more transparency as far as the drug companies having to say the price of their drugs in TV ads, and that wasn’t able to happen. And also reference pricing, so that the prices would be benchmarked to other countries. And certainly that never went forward either. And Trump really used the going after pharma hard in the last campaign, I would say, in 2016. And it worked in the beginning, and you would see the stock of these companies start going down the second he said pharmaceutical companies are getting away with murder or whatever big comment he was making. But it eventually lost any real effect because there didn’t seem to be plans to do anything drastic.

He talked about potentially doing negotiation, like is happening currently, but then that never came to fruition once he was in office. So I don’t know if that will come across to voters, but certainly the pharma industry doesn’t seem to be as afraid of Trump as what Biden’s doing right now.

Rovner: Jessie, I know Congress is still working on this PBM [pharmacy benefit managers] transparency, big bill. Are we getting any closer to anything? I think members of Congress would also like to run on being able to say they’ve done something about prescription drug prices.

Hellmann: I was just talking to [Sen.] Chuck Grassley [R-Iowa] about this because he is the “OG PBM hater.” And he was like, “Why is nothing happening?” He was just very frustrated. There are several bills that have passed House and Senate committees, and so I think, at this point, it’s just a matter of cobbling them all together, finding ways to pay for things. And since there’s also so many other health care things that people want to get done, it’s a matter of “Do we have enough money to pay for everything? What’s going to save money? What’s going to cost money?”

There’s also these health care transparency measures that Congress is looking at. There’s this site-neutral hospital payments thing that could be a money saver. So I think there’s just a lot going on in trying to figure out how it all fits together. But PBMs, I could definitely see them doing something this year.

Rovner: Sometimes, I mean, often it’s like you can’t get things onto the agenda. In this case, it sounds like there’s lots of things on the agenda, but they’re going to need to pay for all of them and they’re going to fight over the few places where they could presumably get some savings.

Edney: I was going to say, I saw that Grassley and some other senators wrote the Federal Trade Commission because they are due for a report on PBMs they’ve been working on for about a year and a half. And I think that the senators who want to go after PBMs are kind of looking for that sort of backup and that deep dive into the industry to make those statements about cost savings and what this would do for pharmaceutical prices.

Rovner: Well, to ratchet this up one more step, the Biden administration has proposed a framework for when march-in rights might be used. Is this the real deal or a threat to get pharma to back down on complaints about the Medicare price negotiations? Anna, why don’t you explain what march-in rights are?

Edney: March-in rights, which have never been used on a pharmaceutical company, were something that were put into law — I think it was around 1980 with the Bayh-Dole Act — and what it allows the government to do is say we invested a ton of money, either through giving money to university research or in the company itself, to do the very basic science that got us to this breakthrough that then the company took across the finish line to get a drug on the market. But usually, I think the main reason you might use it is because then the company does nothing with it.

Say they bought it up and it could be a competitor to one of their drugs, so they don’t use it. But it seems like it could also be used if the price is prohibitive, that it’s something that’s really needed, but Americans aren’t getting access to it. And so the government would be able to take that patent back and lower the price on the drug. But I haven’t heard a specific drug that they want to use this on. So I don’t know if they’re serious about using the march-in rights.

There is a request for information to find out how people feel about this, how it might affect the industry. The argument being that it could hamper the innovation, but we hear that a lot from the pharmaceutical industry as well. So unclear if that’s a true defense to not using march-in rights.

Rovner: Although march-in rights are a pretty big gun. There’s a reason they’ve never been used. I’ve seen them … lawmakers sometimes trot it out kind of as a cudgel, but I’ve never … the only time I think I saw them come close was after the anthrax scare, right after 9/11, when there was potentially a shortage of the important antibiotic needed for that. There was muttering about this, but then I think the drug company decided on its own to lower the price, which got us over that.

Well, yet another tack is being pursued by Sen. Bernie Sanders, chairman of the Senate Health Committee. He’s going to make the committee vote next week on whether to subpoena the CEOs of Johnson &  Johnson and Merck to require them to “provide testimony about why their companies charge substantially higher prices for medicine in the U.S. compared to other countries.” Well, we all know the answer to that. Other countries have price controls and the U.S. does not. So is this a stunt or not? And is he even going to get the rest of the committee to go along with the subpoena?

Edney: This wouldn’t be the first hearing on high drug prices pulling in CEOs. And it’s so opaque that you never get an answer. You never get something … I mean, certainly, they’ll blame PBMs and talk about that, and the finger-pointing will go somewhere else, but you never have some aha insight moment. So when the CEOs are coming in, it does feel a bit more like a show. And Bernie Sanders, the ones he wants to subpoena are from companies that are suing the Biden administration.

So there’s talk about whether that’s sort of a bit of a revenge him for that as well. I don’t know what exactly he would expect to hear from them that would change policy or what legislation they’re trying to work out by having this hearing.

Rovner: For an issue that everybody cares about, high drug prices. It sure has been hard to figure out a way into it for politicians.

Ollstein: We have seen public shaming, even without legislation behind it, can have a difference. I think we’ve seen that on the insulin front. And so I think it’s not completely a fool’s errand here, what Bernie’s trying to do. It will be interesting to see if the rest of the committee goes along with it. There’s been some tensions on the committee. There’s been bipartisan support for some of his efforts, and then others — less on the health front, I think more on the labor front — you’ve had a lot of pushback from the Republican members, and so it’ll be very telling.

Rovner: I was actually in the room when the tobacco industry CEOs came to testify at the House Energy and Commerce Committee, and that was pretty dramatic, but I feel like that was a very different kind of atmosphere than this is. I know everybody’s been trying to repeat that moment for — what is it? — 25, 30 years now. It was in the early 1990s, and I don’t think anybody really successfully has, but they’re going to keep at it.

All right, well, let us turn to abortion. Last Saturday would have been the 51st anniversary of Roe v. Wade, and the day before was the annual March for Life, the giant annual anti-abortion demonstration that used to be a march to the Supreme Court to urge the justices to overrule Roe. Well, that mission has been accomplished. So now what are their priorities, Alice?

Ollstein: Lots of things. And a lot of the effort right now is going towards laying the groundwork, making plans for a potential second Trump administration or a future conservative president. They see not that much hope on the federal level for their efforts currently, with the current president and Congress, but they are trying to do the prep work for the future. They want a future president to roll back everything Biden has done to expand abortion access. That includes the policies for veterans and military service members. That includes wider access to abortion pills through the mail and dispensing at retail pharmacies, all of that.

So they want to scrap all of that, but they also want to go a lot further and are exploring ways to use a lot of different agencies and rules and bureaucratic methods and funding mechanisms to do this, because they’re not confident in passing a bill through Congress. We’ve seen Congress not able to do that even under one-party rule in either direction. And so they’re really looking at the courts, which are a lot more conservative than they were several years ago.

Rovner: Largely thanks to Trump.

Ollstein: Exactly, exactly. So the courts, the executive branch, and then, of course, more efforts at the state level, which I know we’re going to get into.

Rovner: We are. Before that, though, one of the things that keeps coming up in discussions about the anti-abortion agenda is something called the Comstock Act. We have talked about this before, although it’s been a while, but this is an 1873 law, which is still on the books, although largely unenforced, that banned the mailing of anything that could be used to aid in an abortion, among other things. Could an anti-abortion administration really use Comstock to basically outlaw abortion nationwide?

I mean, even things that are used for surgical abortion tend to come through … it’s not just the mail, it’s the mail or FedEx or UPS, common carrier.

Ollstein: Yes. So this is getting a lot more attention now and it is something anti-abortion groups are absolutely calling for, and people should know that this wouldn’t only prohibit the mailing of abortion pills to individual patients’ homes, which is increasingly happening now. This would prevent it from being mailed to clinics and medical facilities. The mail is the mail. And so because abortion medication is used in more than half of all abortions nationwide, it could be a fairly sweeping ban.

And so the Biden administration put out a memo from the Justice Department saying, “Our interpretation of the Comstock Act is that it does not prohibit the mailing of abortion pills.” The Trump administration or whoever could come in and say, “We disagree. Our interpretation is that it does.” Now, how they would actually enforce it is a big question. Are you going to search everyone’s mail in the country? Are you going to choose a couple of people and make an example out of them?

That’s what happened under the original Comstock Act. Back in the day, they went after a few high-profile abortion rights activists and made an example out of them. I think nailing them down on how it would be enforced is key here. And of course there would be tons of legal challenges and battles no matter what.

Rovner: Absolutely. Well, let us turn to the states. It’s January, which is kind of “unveil your bills” time in state legislatures, and they are piling up. In Tennessee, there’s a bill that would create a Class C felony, calling for up to 15 years in prison, for an adult who “recruits, harbors or transports a pregnant minor out of state for an abortion.” There’s a similar bill in Oklahoma, although violators there would only be subject to five years in prison.

Meanwhile, in Iowa, Republican lawmakers who are writing guidelines for how to implement that state’s six-week ban, which is not currently in effect, pending a court ruling, said that the rape exception could only be used if the rape is “prosecutable,” without defining that word. Are these state lawmakers just failing to read the room or do they think they are representing what their voters want?

Edney: I don’t really know. I think clearly there are a lot of right-wing Republicans who are elected to office and feel that they have a higher calling that doesn’t necessarily reflect what their constituents may or may not want, but more is that they know better. And I think that that could be some of this, because certainly the anti-abortion bills or movements have been rejected by voters in places you might not exactly expect it.

Rovner: It feels like we’re getting more and more really “out there” ideas on the anti-abortion side at the same time that we’re getting more and more ballot measures of voters in both parties wanting to protect abortion rights, at least to some extent.

Ollstein: And I think going off what Anna said, I think that anti-abortion leaders, including lawmakers, are being more upfront now, saying that they don’t believe that this should be something that the democratic process has a voice in. The framing they use is that fetuses are an oppressed minority and their rights should not be subject to a majority vote. That’s their framing, and they’re being very upfront saying that these kinds of ballot referendums shouldn’t be allowed, and that states that do allow them should get rid of that. We’ll see if that happens. There are obviously lots of attempts to thwart specific state efforts to put abortion on the ballot. There are lawsuits pending in Nevada and Florida. There are attempts to raise the signature threshold, raise the vote threshold, just make it harder to do overall. But I found it very interesting and a pretty recent development that folks are coming out and saying the quiet part out loud. Saying, “We don’t believe The People should be able to decide this.”

Rovner: Well, obviously not an issue that is going away anytime soon. All right, well that is this week’s news. Now we will play my interview with Sarah Somers, and then we will come back and do our extra credits.

I am pleased to welcome to the podcast Sarah Somers, legal director of the National Health Law Program. She’s going to explain, in English hopefully, what’s at stake in the big case the Supreme Court heard earlier this month about herring fishing. Sarah, welcome to “What the Health?”

Sarah Somers: Thank you for having me, Julie. I’m glad to be here.

Rovner: So this case, and I know it’s actually two cases together, is really about much more than herring fishing, right? It seems to be about government regulation writ large.

Somers: That’s right. The particular issue in the case is about a national marine fisheries regulation that requires herring fishing companies to pay for observers who are on board — not exactly an issue that’s keeping everyone but herring fishermen up at night. And the fishing company challenged the rule, saying that it wasn’t a reasonable interpretation of the statute. But what they also asked the court to do was to overrule a Supreme Court case that requires courts to defer to reasonable agency interpretations of federal statutes. That’s what’s known as “Chevron deference.”

Rovner: And what is Chevron deference and why is it named after an oil company?

Somers: Why aren’t we talking about oil now? Yes, Chevron deference is the rule that says that courts have to defer to a reasonable agency interpretation of a federal statute. So, under Chevron, there’s supposed to be a two-step process when considering whether, say, a regulation is a reasonable interpretation. They say, “Does the statute speak directly to it?” So in this case, did the statute talk about whether you have to pay for observers on herring boats? It didn’t.

So the next question was, if it doesn’t speak directly to it or if it’s ambiguous or unclear, then the court should defer to a reasonable interpretation of that statute. And what’s reasonable depends on what the court determines are sort of the bounds of the statute, whether the agency had evidence before it that supported it, whether it showed the proper deliberation and expertise.

Rovner: One of the reasons that regulations are sometimes 200 pages long, right?

Somers: Exactly. And sometimes courts do say, “You know what? The statute spoke right to this. We don’t have to go any further. We know what Congress wanted.” Other times they take a step further. And the reason it’s called Chevron is it’s named after a case that was decided 40 years ago in 1984 during the Reagan administration, and it was Chevron Inc. USA v. the Natural Resources Defense Council. That case was about a regulation interpreting the Clean Air Act and about regulating air pollution.

Rovner: So, as you point out, you helped write one of the amicus briefs in the case about what overturning Chevron would mean for health care. It’s not just about herring fishing and Clean Air Act. Can you give us the CliffsNotes version of what it would mean for health care?

Somers: One of the purposes of our amicus brief was just to give another angle on this, because we were talking a lot about regulations in the context of air pollution, clean water, and the environment, but it touches so many other things, and this is just one aspect of it. So this brief, which we authored along with the American Cancer Society Action Network, and a Boston law firm called Anderson Kreiger, was signed by other health-oriented groups: the American Lung Association, American Heart Association, Campaign for Tobacco-Free [Kids], and then the American Academy of Pediatrics, American Academy of Public Health.

You get the picture. These are all groups that have a vested interest in programs of the Department and Health and Human Services. The brief talks about regulations promulgated by the Centers for Medicare & Medicaid Services. I’m going to call them CMS for short when we’re talking. And CMS is responsible for regulating the vast and complex Medicare and Medicaid programs. And, as you know, Medicare and Medicaid cover more than half of the population and touch the lives of almost everyone, regulating hospitals, some aspects of insurance, some aspects of practice of medicine.

You can’t escape the consequences of problems with these programs. And so that’s why the agency … Congress specifically gave HHS and CMS the power to regulate all of the issues in its purview. So that already have the power, and so the question is whether they use it wisely. We are arguing in this brief that for 40 years it’s worked just fine. That Congress has set the outer limits and been content to let the agency determine the specifics of these programs to fill in the gaps, as one Supreme Court case said. And this has implications for how hospitals operate, how insurance programs operate, and whether they operate smoothly.

And in our brief, we’re not really arguing for or against a particular interpretation or either for or against what the agency says. It’s just a matter of stability and certainty. The agency has the expertise, has the time, has the resources, and has the duty to figure out what these particular terms and statutes mean and how the programs should work. Just two examples we gave in the brief of the kind of issues that the agency should be determining are: What’s the definition of geographic area in the Medicaid Act for the purpose of setting hospital wages?

If your listeners are still listening, I hope, because that is boring, arcane, hyper-technical, and courts don’t have the expertise, much less the time, to do that. And CMS does. Or another question in a different area, whether feeding activities in a nursing home regulated by Medicaid: Are those nursing or nursing related services? The court’s not going to know. The courts doesn’t have expertise or time. And again, that’s what CMS is for.

So not only is this something that you need these interpretations in these rules to have the programs operate smoothly and consistently, and that’s the first part that’s important. But the second part is that you need consistency across the country. As you know well, there are hospital systems that operate across multi-states. There are Medicaid managed-care plans operating across multi-states. All aspects of health care is nationalized. If you have hundreds of district courts and courts of appeals coming up with different interpretations of these terms, you’re going to have a lot of problems. It’s not going to operate smoothly. So I heard some of the justices arguing, “Well, Congress just needs to do its job.”

Congress has obstacles to doing even the big, mega issues that are before them, these kinds of arcane specific issues. They don’t have the time or again, the expertise. That’s why they said, “CMS, you go do this.”

Rovner: When they were writing the Affordable Care Act, there were so many times in that legislation where it says, “The secretary shall” or “The secretary may.” It’s like, we’re going to punt all this technical stuff to HHS and let them do what they will.

Somers: Exactly. You figure out what the definition of a preventive service is, that’s not something that we are going to do. And there are also questions raised about is this … these unelected agency personnel, well, agencies — they are political appointees, and they also serve at the pleasure of the head of the agency. So they’re accountable to the executive branch and indirectly to the voters. The courts, at this point, once they’re on the court and the federal courts, they’re not accountable to the voters anymore. And so this would be a big shift of power towards the courts, and that is what we argued would be antithetical to the system working well.

Rovner: What would be an example of something that could get hung up in the absence of Chevron?

Somers: I thought that Justice [Ketanji Brown] Jackson, during the argument, gave a really good example. Under the Food and Drug Administration’s power to regulate new drugs and determining what is an adequate and well-controlled investigation. The idea of courts, every single drug that’s challenged in every single forum, having to delve into what that means without deference to the agency would be just a recipe for chaos, really.

Rovner: So some people have argued that Chevron is already basically gone, as far as the Supreme Court is concerned, that it’s been replaced by the major questions doctrine, which is kind of what it sounds like. If a judge thinks a question is major, and they will assume that the Congress has not delegated it to the agency to interpret. So what difference would it make if the court formally overturned Chevron or not here? I guess what you’re getting at is that we’re more worried about the lower courts at this point than the Supreme Court, right?

Somers: That’s right. The Supreme Court has not cited Chevron in something like 15 years. And they talked about that in the argument, but it’s for the lower courts. The lower courts still follow it. It is still very commonly cited and gives them a lot of guidance not to have to decide these issues in the first instance. It’s true that the major questions doctrine — and there are other threats to the power of the administrative agencies, and we should all be concerned about them. But this one is really the grease that keeps the machine going and keeps these systems going. And throwing all that up in the air would make a big difference. If only because the question in all of these Chevron cases, and so many of them was not the ultimate issue — about whether the regulation was a good policy — but the question was, was the statute ambiguous or not? And so that’s the part that would be up in the air and everyone can go back and re-litigate these, including the big interests that have a lot of time and resources to devote to litigation. And that would cause a great deal of uncertainty, a lot of disruption, and a lot of problem for the courts and for all the entities that function under these systems.

Rovner: And that’s a really important point. It’s not just going forward. People who are unhappy with what a regulation said could go back, right?

Somers: Oh yeah. They could go back. They could go to different courts. We’ve seen how litigants can forum-shop. They can find a judge that they think is going to be sympathetic to their argument and make a determination that affects the whole country.

Rovner: Well, we will be watching. Sarah Somers, thanks so much for joining us.

Somers: My pleasure. Thank you for having me.

Rovner: We are 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Jessie, you were the first to join in this week. Why don’t you tell us about your extra credit?

Hellmann: Yeah. Mine is from North Carolina Health News. They wrote about how congenital syphilis is killing babies in the state. They had eight cases of deaths last year — compared to a decade ago, they had one. So it’s something that’s been on the rise in North Carolina, but also nationwide, and it’s caused a lot of alarm among public health officials because it’s pretty preventable. It’s something that doesn’t need to happen, but the story is about what the state is doing to improve their outreach to pregnant people. They’re doing media campaigns, they’re trying to make sure that people are doing their prenatal care and just trying to stop this from happening. So I thought that was a good story. It’s definitely kind of an under-reported issue. It’s something that public health officials have been raising an alarm about for a while now, but there’s just not enough funding or attention on the issue.

Rovner: For all the arguing about abortion, there’s not been a lot of discussion about maternal and child health, which obviously appears to be the one place that both sides agree on. Anna.

Edney: Mine’s in The New Yorker by Rachael Bedard. It’s “What Would It Mean for Scientists to Listen to Patients?” And it’s interesting, it’s about two Yale researchers who are doing a long-covid study, but it’s unique in the sense that when the CDC or anyone else does a long-covid study, they typically are trying to say, “Here are the exact symptoms. We’re going to work with 12 of them.” Whereas we know long covid, it’s seemingly a much more expansive symptom list than that, but researchers really like to have kind of metrics to go by.

But what these Yale researchers are doing is letting all of that go and just letting anybody in this and talking to them. They’re holding monthly town halls with people who are in this, whoever wants to show up and come and just talk to them about what’s going on with them and trying to find out, obviously, what could help them. But they’re not giving medical advice during these, but just listening. And it just was so novel, and maybe it shouldn’t be, but I found it fascinating to read about and to get their reactions. And it’s not always easy for them. I mean, the patients get upset and want something to happen faster, but just that somebody is out there doing this research and including anybody who feels like they have long covid. It was really well-written too.

Rovner: It’s a really good story. Alice.

Ollstein: So I’m breaking my streak of extremely depressing, grim stories and sharing kind of a funny one, although it could have some serious implications. This is from Stat, and it’s from an inspector general report about how the White House pharmacy, which is run by basically the military, functioned under President Trump. And it functioned like sort of a frat house. There was no official medical personnel in charge of handing out the medications, and they were sort of handed out to whoever wanted them, including people who shouldn’t have been getting them. People were just rifling through bins of medications and taking what they wanted. These included pills like Ambien and Provigil, sort of uppers and downers in the common parlance. And so I think this kind of scrutiny on something that I didn’t even know existed. The White House pharmacy is pretty fascinating.

Rovner: It was a really, really interesting story. Well, I also have something relatively hopeful. My extra credit this week is a journal article from Health Affairs with the not-so-catchy headline “‘Housing First’ Increased Psychiatric Care Office Visits and Prescriptions While Reducing Emergency Visits,” by Devlin Hanson and Sarah Gillespie. And if they will forgive me, I would rename it, calling it maybe “Prioritizing Permanent Housing for Homeless People Provides Them a Better Quality of Life at Potentially Less Cost to the Public.”

It’s about a “Housing First” experiment in Denver, which found that the group that was given supportive housing was more likely to receive outpatient care and medications and less likely to end up in the emergency room. The results weren’t perfect. There was no difference in mortality between the groups that got supportive housing and the groups that didn’t. But it does add to the body of evidence about the use of so-called social determinants of health, and how medicine alone isn’t the answer to a lot of our social and public health ills.

OK. That is our show. 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 technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky or @julie.rovner at Threads. Anna, where are you these days?

Edney: Mostly just on Threads, so @anna_edneyreports.

Rovner: Alice?

Ollstein: @AliceOllstein.

Rovner: Jessie.

Hellmann: @jessiehellmann on Twitter.

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 KFF Health News’ 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 Supreme Court this week took up a case brought by two herring fishing companies that could shake up the way the entire executive branch administers laws passed by Congress. At stake is something called “Chevron deference,” from the 1984 case Chevron v. Natural Resources Defense Council. The ruling in that case directs federal judges to accept any “reasonable” interpretation by a federal agency of a law that’s otherwise ambiguous. Overturning Chevron would give the federal judiciary much more power and executive branch agencies much less.

Meanwhile, the Biden administration is struggling with whether to ban menthol-flavored cigarettes. Among smokers, African Americans consume the product at the highest rate, and the African American community is split, with some groups arguing that a ban would improve public health and others worried that making the product illegal would give police another excuse to harass black people.

This week’s panelists are Julie Rovner of KFF Health News, Joanne Kenen of Johns Hopkins University and Politico Magazine, Lauren Weber of The Washington Post, and Rachel Cohrs of Stat.

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

• Congress looks ready to pass yet another temporary spending bill to keep the federal government running — this one extending to March. But it’s unclear whether all the health policies that have been attached to previous temporary “continuing resolutions” will continue to make the cut while lawmakers struggle with full-year funding issues.
• A grand jury in Ohio declined to indict Brittany Watts, who was charged by authorities with “abuse of a corpse” after having a miscarriage at home. The case underscores how women can be at legal risk for their pregnancy outcomes even in states where abortion remains legal.
• Also in Ohio, state pharmacy officials are moving to fine and place on probation a CVS store in Canton after inspectors determined that understaffing was threatening patient safety. In at least one case a patient was given a drug other than the one prescribed, and waits to fill some prescriptions stretched to a month. Ohio is also investigating other CVS locations in the state to ensure staffing is adequate.

Also this week, Rovner interviews Darius Tahir, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” about a lengthy fight over a bill for a quick telehealth visit. If you have an outrageous or baffling medical bill you want to share with us, you can do that here.

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 “Pumping Milk at JPM Was a Nightmare. It’s Part of a Bigger Problem in the Industry,” by Tara Bannow.

Joanne Kenen: Undark’s “Why Incentives to Attract Doctors to Rural Areas Haven’t Worked,” by Arjun V.K. Sharma.

Lauren Weber: The Guardian’s “Majority of Debtors to US Hospitals Now People With Health Insurance,” by Jessica Glenza.

Rachel Cohrs: The Washington Post’s “Republican Governors in 15 States Reject Summer Food Money For Kids,” by Annie Gowen.

Also mentioned on this week’s podcast:

• The Washington Post’s “White House Weighs Menthol Ban Amid Dueling Health, Political Pressures,” by Dan Diamond and Tyler Pager.
• The Ohio Capital Journal’s “Ohio Attorney General Asks That CVS Store Be Put on Probation ‘for a Period of Years,’” by Marty Schladen.
• The Atlantic’s “The Supreme Court Is Making America Ungovernable,” by Lisa Heinzerling.

click to open the transcript

Transcript: The Supreme Court vs. the Bureaucracy

KFF Health News’ ‘What the Health?’Episode Title: The Supreme Court vs. the BureaucracyEpisode Number: 330Published: Jan. 18,2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 18, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this, so here we go. We are joined today via video conference by Lauren Weber of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: Joanne Kenen of Johns Hopkins University and Politico Magazine.

Joanne Kenen: Hey, everybody.

Rovner: And Rachel Cohrs of Stat News.

Rachel Cohrs: Good morning.

Rovner: Later in this episode, we’ll have my interview with my colleague Darius Tahir, who wrote the latest KFF Health News-NPR “Bill of the Month” about an unexpectedly large bill for a simple telehealth appointment. But first, this week’s news. So we’re a day away from the next deadline for Congress to pass a spending bill or else big chunks of the federal government shut down. In other words, the “let’s kick the can down the road a few more weeks and see how many spending bills we can get done” deadline is now here, again. So how many spending bills did Congress get done between — what, the end of November, the last time we did this — and now? Rachel, I see your eyes are rolling.

Cohrs: Yeah, I don’t think we have any actual appropriations in that time frame. I think there was just a lot of back-and-forth, not a lot of actual progress. So I think they’ve decided to kick the can down to March. As we’re taping in the morning, the Senate is scheduled to pass the CR [continuing resolution] to keep that two-pronged approach moving into early March, but extensions of health care programs in Medicaid and Medicare have been pushed now to the second March deadline, so those are expected to come up on March 8, right now.

Rovner: So remind us what those are. I saw you very helpfully have a story about it this morning.

Cohrs: I do, yes. Fresh from the trenches on that. So there were a number of health care programs that expired at the end of 2023, including payments for safety-net hospitals, including pandemic-era bonuses for doctors, for their Medicare pay. We also have funding for community health centers and multiple demonstration projects, programs for diabetes and other public health issues. So those are commonly known as extenders. They do just expire on a regular basis. We had a three-year term, but now we’re at the end of it.

Rovner: And they need to be extended. Hence, they’re called extenders.

Cohrs: They do need to be extended, yes. So Congress did take care of most of those items in the CR from September time frame, but they did not extend the bonus payments for doctors. So there were some very tense negotiations late last week where Republicans were really pushing to add those payments back into the extenders package as it sits right now, but those negotiations broke down and so what we’re seeing today, tomorrow, is just an extension of the same baseline and doctors are still without those increased payments.

Rovner: Right. That’s the Medicare cut that we talked about last week, actually, with the head of the AMA [American Medical Association].

Cohrs: Yeah, it’s controversial because it was … long story, but …

Rovner: There’s also a 3.7% actual cut and that’s still in effect, right? That’s not being taken care of?

Cohrs: No, that’s not being taken care of. I think if Congress doesn’t fix things, to my understanding, some specialties will see a cut, other specialties will see an increase, and there’s an across-the-board cut, though, because in the middle of the pandemic, Congress did not want to cut any doctors’ payments, so that was an increase on top of the kind of baseline amount. So when you’re saying cut, they’re kind of going back to the normal baseline for some physicians. Others are seeing that deeper cut because of some Trump-era rules and the conversion factors there.

Rovner: Yes. Medicare doctor payment, we’ll spend a whole episode on this at some point, but not today because we have something else confusing to take on. The award for incomprehensible health policy this week goes to the Supreme Court, who heard arguments Wednesday in two cases, Relentless Inc. v. the Department of Commerce and Loper Bright Enterprises v. Raimondo, i.e., Gina Raimondo, the secretary of Commerce. What is at stake here is not the merits of these cases — they are about fees paid by herring fishing boats — but whether the court should overrule something called Chevron deference, which is the policy that courts should defer to executive branch agency interpretations of ambiguous laws as long as that interpretation is reasonable. I know this sounds wonky, and it is wonky, but if the court overrules Chevron, it could have enormous ramifications for health policy, yes?

Kenen: Pretty much anything that has ever been regulated. That’s only a slight exaggeration. I mean, we don’t know what the court is going to do. We can expect that the court will trim, at least, Chevron, but we don’t know how far the court will go.

Rovner: Right. They didn’t have to take this case and the fact that they took it suggests they want to do something.

Kenen: They’ve been more than chipping away. We sort of get to that in a minute, but basically the question is when Congress doesn’t have the expertise that civil servants and agencies have, or in some cases, political appointees and agencies have. They are professionals who work in health care or the environment or herring fishing. They know more than even the smartest Congress person about their field of expertise, and traditionally Congress makes laws and tells the agencies to fill in the blanks, to do the regulations, to work out the details, figure out how this is going to work in the real world, and then everybody sues everybody else.

Chevron has basically said yes, the agencies can make up the rules. There are thousands of court cases and rules. It’s throughout the government, everything federal, so it’s not very hard to guess that Chevron will be changed. The question is: Will it be gutted? And who writes the regs? Or can Congress just put in language saying, “And we explicitly authorize the EPA or HHS or CMS, whatever, to fill in the blanks.” We don’t know how this plays out, but it’s messy.

Rovner: Obviously there are lawsuits that happen all the time anyway, even with Chevron, it’s just that Chevron is supposed to say when a judge gets a complaint in front of him saying “this regulation is contrary to what the law said,” the judge gets to decide whether or not it’s a reasonable interpretation. So it’s not like judges can’t overrule the agencies. It just says, in general, the weight should go towards the agency. Lauren, you wanted to add something?

Weber: Yeah, I just wanted to say I think this is relevant to the conversation we had just before this, because what this is aimed at doing is putting the power back in the hands, both of the courts and the Congress, but as we’ve just discussed, Congress is having a hard time passing things. So this is all part of the movement, in general, by conservatives to strip the administrative state, as they like to call it. And as Joanne pointed out, it’ll be quite interesting to see how this all plays out.

Rovner: Yes, and my favorite factoid about this case is that the lawyers who are representing the herring fishermen are being paid indirectly by Americans for Prosperity, the Koch Brothers, interest group that’s basically aimed at weakening the power of the regulatory state. It isn’t even very subtle here. Yes, Joanne?

Kenen: There’s been a lot of focus on Chevron, but there’ve been a number of cases that have already weakened Chevron without calling it weakening Chevron. I interviewed a lawyer, a law professor at Georgetown about a year ago, and she also wrote about a year ago a very good piece in The Atlantic that Julie couldn’t put on the notes. Her name is Lisa Heinzerling, I think it’s Heinzerling, and basically she said they’ve already really gutted Chevron. And the three cases, one was the EPA clean air case, power to regulate, and two were covid-related. One of them was the vaccine mandates for the workplace, and the court basically ruled that the agencies didn’t have the right to make those decisions.

What professor Heinzerling said, it’s called the major decision [questions] doctrine, that if it’s a really big thing, the agency can’t do it. Congress has to or the courts have to, and those big things include things like clean air. So, in her view, the major [questions] doctrine has already really gutted the agency’s power and made it harder to govern because, as she pointed out, it takes years to get a rule passed. She worked at the EPA, and it’s a very complicated, careful, long process and she basically said it’s another way of making the country ungovernable at a time when we have lots of things that need governing.

Rovner: To give myself a little plug here, I did basically a policy tracker at the beginning of the Biden administration tracking how long it was going to take [President Joe] Biden to undo a lot of the regulations and policies that the Trump administration put in, and I just updated it again last week when we talked about the conscience rule. It literally does take years for these things to happen. I mean, one presidential term is barely enough time to change the policies of the previous president, and I will link to my regulation tracker because somebody should look at it.

All right, well, moving on. I want to talk about an issue I’ve had on my podcast rundown since sometime last fall, but have never managed to get to, which is a proposed ban on menthol-flavored cigarettes. From a public health perspective, this is kind of a no-brainer. Menthol makes cigarettes smoke more palatable to smokers and, therefore, smokers smoke more, but it turns out to be super sensitive politically because African Americans are far more likely to smoke menthol cigarettes than any other group, and African American leaders themselves are split on whether such a ban would help or hurt. What are the arguments for and against this? Lauren, you’ve been kind of watching this, yes?

Weber: Yeah. Shoutout to my colleagues Dan Diamond and Tyler Pager who wrote a great story on this last week, but essentially the arguments for and against is menthol cigarettes are a leading cause of death for Black Americans. They’ve been historically marketed to the Black American community. What menthol does is it has a cooling effect when you smoke, so it makes it more enjoyable. As a smoking issue, you saw similar regulation issues come up when we talked about vaping regulation to different flavors, which also had similar backlashes when Donald Trump considered it, and actually when I was at KHN [KFF Health News], I got to write a story with Rachel Bluth about this where we talked about how Donald Trump really got gun-shy on this to some extent because he was worried about the voter implications. And we’re seeing that play out again right now because what is happening is that the tobacco lobby is telling Biden that he’s going to lose a large chunk of Black voters, which, as we are very clear, the 2024 election looks like it’s going to be quite tight, so that has real ramifications.

What’s interesting is that lobbying effort is obviously led by the tobacco companies, which have had a history of tactics and propaganda when it comes to preventing regulations that we’re all very well aware of, but they have rallied up quite a few folks in their favor, including some Black congressmen who have cited what the tobacco companies are telling them, which is that they’re concerned that this is targeting Black Americans, because why aren’t we just killing all cigarettes? Why are we just killing menthol cigarettes? That it also could lead to over-policing, which could lead to violence against Black Americans. This is the argument that the tobacco companies and their advocates are making. But the bottom line is really what this boils down to is I think the most effective argument that they’re making to the Biden administration is it could hurt your reelection chances.

To look ahead, the real deadline on this taking effect that all the advocates have been pointing to is Jan. 20, which, if you look at your calendar, is Saturday. So it’s not looking great for the promises to the advocates that this could happen in the Biden term. It’s unclear, still a toss-up. Dan Diamond reported that while the administration sees it as a toss-up, Robert Califf, who’s head of the FDA, is pretty resigned to it not happening, which to me seems to indicate, considering we are almost to the 20th, that it may not happen, but by the time this podcast airs, I could be wrong. So we will see how this plays out.

Cohrs: I just wanted to say that I think if you look at the OMB [Office of Management and Budget] regulatory schedule, they do have meetings on this rule scheduled out through mid-February, so could they cancel this tomorrow? Sure, and put it out, but at least what they’re saying publicly, it looks like they’re not planning to put that out tomorrow.

Rovner: Right, and I would say the deadline, it’s not technically a deadline, but what the agency has said is that it will take a year to basically, as we were just talking about, it takes a long time for regulations to become final, and Jan. 20 of 2025 is Inauguration Day. So if Biden were to not get reelected and they were to start this, it would be very easy for Trump or whoever else gets elected to stop it. Joanne, you wanted to add something.

Kenen: One point, though: This is an issue that’s been on the back burner, front burner, back burner, but it’s been 20, 30 years now, 20, 25-ish maybe? There has been a shift in that, I don’t remember whether it’s an official Black Caucus stance or just an informal … where the Black lawmakers in Congress had been opposed to the ban for the reasons, discriminatory, black market, it would hurt people as well as hurt some, help others. There’s now a split and that is a change. So whether there’s action this week, there is movement on it and, like we said, everything takes a long time, 25 years, but there has been movement on it, and it’s also a little bit more vivid who’s using tobacco dollars and who isn’t. So the public health needle has moved, maybe not in time for this year, but let’s see what happens next year. I mean, if it goes away now, it doesn’t go away for good.

Rovner: Lauren?

Weber: I think that’s a great point by Joanne that I just want to echo. This reminds me a lot … there was a story that The Post did in December where Peter Wallsten interviewed all of these lawmakers who voted against the AR-15 ban, and they talked all about how, if they could go back in time, they wished they had voted for it. They regret that political decision that they made due to the voter piece of this, and I do wonder if Biden is grappling with that similar longevity of, like, this would be a landmark public health ruling, this would be quite something that really would be protecting lives, but is it worth the voter cost? I think that, to me, is where this lies. But as Joanne said, I mean, this is not dead forever if this dies this week. It certainly has made progress.

Rovner: It’s a really interesting issue though. All right, well, speaking of smoking, the Department of Health and Human Services is recommending that marijuana be removed from the DEA’s [Drug Enforcement Administration’s] list of drugs with no medical use and a high potential for abuse, the so-called Schedule 1 drug. Instead, the department is saying it should be placed on Schedule 3, which are with drugs that can be abused but can also be helpful, like anabolic steroids and ketamine. Given that medical marijuana is now legal in 38 states and recreational marijuana is legal in 24, isn’t this just kind of recognizing reality?

Kenen: I mean there’s been pressure for years. I mean, Schedule 1 is heroin. It’s hard to make the case now that marijuana is as harmful as heroin or other Schedule 1 drugs. The FDA isn’t ready to say it should be completely unscheduled and just do whatever you like, but there’s a big difference between a 1 and a 3, and there’s a lot of gaps between federal law, including things that involve financing for the marijuana industry or the cannabis industry. So there’s a lot of gaps still between state law and federal law, but this is a partial closure of one of those many gaps. And it’s a recognition that, not just a political and social reality, but also a science reality. I mean, even if you’re not crazy, if you’re not that sanguine about marijuana, it’s still hard to make a case that it’s as dangerous as heroin. It’s not.

Rovner: “Reefer Madness” was a long time ago.

Kenen: Yeah, but it had a long tail.

Rovner: It did. Well, among the recognized uses for marijuana are to help combat nausea caused by chemotherapy and for stimulating appetite in patients with AIDS. Meanwhile, a kind of provocative study out this week from the University of Colorado found that weed can actually motivate people to exercise, which seems kind of the polar opposite of the idea that it just turns people into slackers and couch potatoes. Now that we have drugs that can help make people not hungry, how big a deal would it be to have another one that actually helps people exercise? I mean, I assume that there are a lot of things about marijuana that we don’t know, both good and bad.

Kenen: Julie, after you sent that around yesterday, I read that article, and there’s a lot of problems with that study. I mean, it was all people who smoke marijuana when they run or ingest it. So it wasn’t a scientific gold standard. I mean, if you ask a bunch of people, “Oh, do you like running high?” and they say “Yes,” and then say, “OK, do you want to be in our study about running high?” [laughs]

Rovner: In Colorado, where recreational marijuana has been legal for several years.

Kenen: I mean, there’s still a lot of unknowns. If you talk to the proponents of medical marijuana, they’ll tell you it cures everything. And I think all of us would be somewhat skeptical that marijuana cures everything. I’m not convinced that exercise motivation thing is … I mean, I could be persuaded, but that study didn’t persuade me.

Rovner: My point, though, is that, I mean one of the things that had been difficult over the years is that it had been hard to actually get marijuana to do medical studies like this. There was only one place that grew it. I think it was in Mississippi.

Kenen: In Mississippi, and it was really poor quality.

Rovner: Right. So I mean now we can at least presumably have better-quality studies on these kinds of things, right?

Kenen: I don’t think it’s great. I think it’s better.

Rovner: I said we can have, not that we do have.

Kenen: I mean someone else might know more. I read about this and I can’t remember the details now and maybe Lauren or Rachel remembers better than I do, but it’s not just from Mississippi, but it’s not from everywhere. There’s more supplies for medical, but I don’t think it’s abundant and perfect.

Rovner: But I think that’s one of the things that changing the schedule would actually help fix that, actually taking it off of Schedule 1 with heroin, as you point out, and putting it on Schedule 3 with other things that have been studied and have been found to have some medical uses. So another thing that we shall watch. Well, turning to abortion, a grand jury in Ohio decided not to indict Brittany Watts, who miscarried at home after being turned away from the hospital only to have one of the nurses there call the police. Officials in Warren, Ohio, wanted to try her for a crime called “abuse of a corpse.” We talked about this the last two episodes. Mind you, Ohio is a state that just voted to enshrine abortion rights in its constitution, and this was not an abortion. But I imagine this goes down in the “no matter where you live, you’re at legal risk for pregnancy loss” column, right? I mean, it does seem to be kind of ominous that there are still officials who still want to criminalize basically pregnancy loss, however it happens.

Weber: Yeah, I mean, I’ll chime in on this. I mean, this case has been watched by folks not only in this country but around the world because, just to remind the audience, Brittany Watts, she was miscarrying and was sent home from the hospital and what happened is that she miscarried into a toilet at home and law enforcement took the drastic steps of retrieving the fetus from the toilet to then charge her with this “abuse of a corpse” law statute after the hospital, by the way, had also clearly consulted with its legal team over what the appropriate action to cover the hospital was. Not to cover the patient but to cover the hospital.

So she miscarried at home. Then this very ancient law statute was pulled out, and I mean, we don’t know how many law statutes like this over what’s called “abuse of a corpse” exist. Legally, it’s also “Is a fetus a corpse?” — was that debate as well in this case? I mean, I think we’ll see what happens across the country, but yes, Julie, I think you’re correct that this is very concerning for women across the country who could have a miscarriage at home. Could you be legally liable for not handling that as some activist prosecution would prefer that you do?

Kenen: Right. I think in this case, she’d been into the ER and out a couple of times, and I think the last time she wasn’t discharged, she just left. But most miscarriages are very early in pregnancy and it’s an embryo. It’s not even a fetus yet, and it’s tiny. So how do you even define what a corpse is? Do you even know that you were pregnant? Losing a pregnancy is a trauma. It’s a medical condition and it’s a trauma. What happened to her, she lost a pregnancy. She had been in and out of the hospital. She didn’t feel like her needs were being met there. That’s why she left. There was a lot of confusion about what to do. There was no confusion that this was a naturally occurring miscarriage, a premature rupturing of her membranes. Nobody, including the nurse who called the cops, nobody said that she’s trying to do a self-abortion or that she’s doing anything illegal. She had a pregnancy loss.

Rovner: There was a medical examiner report that said …

Kenen: Yes.

Rovner: … this was a stillborn.

Kenen: Right. I don’t think people necessarily know what to do if you …

Rovner: Nor can you imagine should they know what to do. I mean, it’s not like she didn’t follow standard procedure. There is no standard procedure for this. Speaking of people in states where abortion is still legal, still having to pay attention, in Texas, the district court judge who tried to overturn the FDA’s approval of the abortion pill, mifepristone, granted a motion allowing Idaho and Missouri to intervene in the case, which the Supreme Court agreed to hear last month. This could be a big deal because it means that even if the original plaintiffs in the case, which is a group representing anti-abortion obstetrician-gynecologists is found not to have standing, which seems likely, according to most experts, it’s not clear that they are harmed in any way by mifepristone. The states will still be there to keep the case active. Although how the states are harmed by mifepristone is also kind of a stretch. I feel like the anti-abortion forces in these states just aren’t paying attention to the voters, and I guess they don’t have to. I mean, I think this and the Brittany Watts case sort of suggests that even if abortion is legal, even if the voters have spoken, there are still officials who think that it is their obligation to push their anti-abortion views as far as they can.

Kenen: I mean, we see how the elections have gone in every state that’s had a ballot initiative, and we haven’t seen the anti-abortion forces say, whoops, we lost and go home. I mean, they still have the Supreme Court ruling. They still have plenty of momentum. They’ve got a federal election, they’ve got a presidential election coming up, and it’s not going away, and they’re not the will of the voters. I mean, to be fair, many of them do believe that this is murder and that they’re morally obligated to keep fighting. I mean, if you want to acknowledge that, that that’s the belief for many, not necessarily all people on the … there are people who are doing it for political reasons too, but there are people who sincerely believe that they’re morally obligated to keep fighting this even if the voters have not been enlightened to the truth.

Rovner: All right. Well, finally this week, a continuing story out of Ohio that speaks to some of the serious issues with the health care workforce. The state Board of Pharmacy is recommending that a CVS pharmacy in Canton be fined and put on probation after inspections found dangers to patients from understaffing. According to the Ohio Capital Journal, which has been following this story pretty closely, inspectors found the understaffing so severe that it was taking two weeks for prescriptions to be filled and in at least one case a prescription was filled for the wrong medication. During an on-site inspection, the inside counter was closed, medications hadn’t been shelved, and it took an inspector 20 minutes just to get a staffer’s attention.

The Canton store is one of eight CVS pharmacies in the state to have been cited by the board. Now, we’ve heard similar stories, not just about CVS and not just about CVS in Ohio, but about Walgreens and other chain drugstores. Are regulators finally catching up with some of the anecdotal reports that we’ve been seeing about the stress that’s happening at the pharmacy counter?

Cohrs: I think this was a good example of a response to that, and Ohio has been on the front end of looking into pharmacies and the drug supply chain, so I think they are pretty well equipped to look into an issue like this. But I think it starts to quantify and just build the case that this does have patient impacts. It’s not just a little bit of a longer line. I mean some of the wait times for these medications — two weeks, a month. Just imagine going to the pharmacy and being told to wait a month for medication. It can be really problematic for patients. So I think, certainly, it’s not surprising to me that Ohio is kind of on the front end of this and it certainly could be the beginning of more enforcement if officials have the bandwidth to do it.

Rovner: I know. I guess the issue here is the pharmacists said during the pandemic that obviously it was a pandemic, they were having trouble getting people. They were being asked to do other things, which they still are, like give vaccines. And not just covid vaccines, it’s “now go get your shingles shot, go get your flu shot.” Everybody’s being pushed to these pharmacies and they’re not necessarily increasing staff to deal with the increasing workload. There is a point at which it starts to endanger patients, and we’re starting to see that point.

Kenen: Also they get paid for some of that, right? I mean they get paid for doing shots. And it’s not super, super labor-intensive. You have your technicians who know how to do it, you can do it pretty fast. And one reason that pharmacies do want to give shots is when you come in and you get your shot, you also end up picking up shampoo or whatever. So I mean it’s a way of getting people in the stores. There’s sort of different issues with pharmacies. I mean, I personally have had more than one time where I’ve been given the wrong medication. I look, and not only that, I don’t want to identify which pharmacy, they gave me the wrong one and I said, “This is the wrong one,” and they said, “Whoops, sorry, come back in an hour,” and I came back in an hour and they gave me the same wrong one. So I’ve never walked back in there again. I think there’ve been a number of reports, not as egregious as Ohio and CVS, about the pressure on the pharmacy techs and that they’re not enough of them, and I don’t know enough about the insides of that. Is it that there are not enough of them to hire because there’s a shortage or are the company’s not hiring enough of them and it’s working them to death? Not literally, but squeezing as much.

Rovner: Doing it for the bottom line.

Kenen: I mean we all probably have our theories. This is a relatively newish problem of the pharmacies being this overworked and we’ll be hearing more of it.

Weber: Yeah, I just want to add, I mean, Julie, you talked about the bottom line, and we’ve talked about on this podcast, I think two weeks ago, that study that came out about how private equity-run hospitals have less staffing and have higher patient errors. You can’t help but wonder if there’s some parallels here in the pursuit of profits possibly over patients.

Rovner: We’ve seen pharmacists at some of these chain stores basically say that, the ones who are there. Well, while we were talking about health workforce woes, Joanne, your extra credit speaks to this. So why don’t you go ahead and do it right now?

Kenen: Mine is an essay in Undark by a physician named Arjun Sharma and it’s called “Why Incentives to Attract Doctors to Rural Areas Haven’t Worked.” All of us know that there’s still a shortage of physicians and other health care workers, nurses, and everything else, probably pharmacists, in rural areas. I didn’t realize that the problem had actually been identified as far back as Teddy Roosevelt’s administration. Most of the efforts to resolve it actually were around 1965, when Medicare was passed and there was an official designation of these underserved areas. Basically, nothing has really worked, and this physician, Dr. Arjun Sharma, talked about the incentives. It’s not about money. That giving people loan forgiveness or extra pay to move off to this unknown rural life, temporarily or permanently, we know it doesn’t work because we’ve been doing it for 50, 60 years and it doesn’t work. He said his own experiences of having gone to a rural area is that he ended up loving the practice of medicine. He loved seeing patients in his community. He loved the different kind of interactions, and that he thought that was the way you might be able to pay someone to quit smoking, but getting somebody to go practice out in the middle of nowhere, you have to talk about why it’s wonderful and satisfying. And that the misconception is not that you’ll get money for going to the rural areas. The correct approach should be you’ll get satisfaction from practicing in a rural area.

Rovner: This is obviously another of the continuing mismatches in the U.S. health care system, such as it is. All right, well that is this week’s news. Now we will play my interview with Darius Tahir about the “Bill of the Month” and then we’ll come back and do our extra credits.

I am pleased to welcome to the podcast my colleague Darius Tahir, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” installment. Darius, thanks for joining us.

Darius Tahir: Thanks for having me.

Rovner: So, this month’s patient did what a lot of us do in her situation. She didn’t feel well, thought she needed a professional consult, but it wasn’t really an emergency and, fearing it was covid or something else contagious, she booked a telehealth visit. Tell us some of the particulars of what happened here.

Tahir: So in fall of 2022, Elyse Greenblatt, a Queens, New York, resident, came back from a trip in Rwanda with a little sinus trouble. She thought it was covid but couldn’t rule it out, and so she’s like, “Why don’t I book a telehealth visit through my usual health system, Mount Sinai in New York City, just see what a professional opinion is like?” She had a very quick visit, as she remembers, and simply got prescribed some Flonase and some antibiotics. Sort of left it at that for a while.

Rovner: Which seems typical for …

Tahir: Very typical.

Rovner: So then as we say, the bill came. Now lots of insurers recommend telehealth, and lots of telehealth services compete on price. But that’s not what happened here, right?

Tahir: Right, absolutely. She looked in and saw that the app that she booked through, Mount Sinai’s personal record app, estimated a cost of $60 for a visit. That’s a competitive cost for a telehealth visit, I would say, an urgent care visit, but as it turned out, the doctor was out of network according to her insurer, Empire BlueCross BlueShield, and she ended up getting a bill of $660, which is way outside the average of this kind of telehealth urgent care visit.

Rovner: And this wasn’t anything fancy, right? This wasn’t like the doctor had to take this full medical history or anything?

Tahir: No, it was just, as she remembers, a very quick five-minute, 10-minute type visit and turned out to be very expensive because of the out-of-network nature of the visit.

Rovner: And, of course, this is exactly what the No Surprises bill was for — when you go to an in-network hospital and get a bill from an out-of-network doctor. Shouldn’t this have been considered a surprise medical bill?

Tahir: That’s a great question. So, as you mentioned, there was the [No] Surprises Act, which is a law that prevents patients from getting bills that are surprises to them, right? If you’re in a hospital, you kind of assume everybody’s in network, but maybe the anesthesiologist is out of network, in this case, Greenblatt usually goes to Mount Sinai and, usually, those doctors are in network. The problem is the specific doctor she saw in telehealth, who was provided to her luck of the draw, is out of network. So she gets hit with a big bill, $660, and goes on to protest it with the medical system. They’re kind of giving her the runaround.

Eventually, I hear about this story, and I’m like, OK, well I’ll ask some questions with Mount Sinai’s PR people. They eventually provide me with a form, a consent form, that consents to out-of-network charges. What’s kind of curious about this bill, and it’s both kind of legally curious and we’ll say ethically curious, is that both the bill and her medical record have time stamps about when the activity occurred. So she signs it one time, the medical record says another time, slightly earlier, than when the visit occurred. So you would think on its face that the consent was signed after the visit occurred. Now that’s a little weird that you’re suddenly getting a form after everything in the visit is happening.

Rovner: I mean, the bottom line here is that you’re supposed to consent in advance, not after the fact.

Tahir: In advance, exactly, yeah. It’s not just something that strikes you as normal, this is how business should be done, but it’s an interesting legal distinction as well. As you mentioned, you’ve got the No Surprises Act, which is a bill that’s supposed to protect us from surprise bills that we don’t expect, and one of the requirements of the bill is that if you do do this consent, it’s provided in a timely fashion. The other one is that if you go through a hospital where you’re covered, then there should also be coverage there because sometimes the hospital is covered, but the doctors within the hospital are not necessarily covered. And in this case, the doctor was not necessarily covered, even though she goes to the hospital system quite regularly and her services are generally covered there.

Rovner: Also, doesn’t the law say if you’re going to get out-of-network care, they have to tell you before you get the care?

Tahir: Precisely. So that is one of the requirements of the No Surprises Act, and the Mount Sinai PR person I spoke to said this is a little non-standard. This is kind of an exception, if it did happen. So, still, there’s a little bit of a loophole in the No Surprises Act. I spoke to a lawyer who was an expert in the No Surprises Act, and one of the things she pointed out about the bill is that you can’t really tell necessarily who’s putting in the bill, what entity, right? Is it the hospital? Is it some other entity? The No Surprises Act covers this laundry list of entities, including hospitals, including some outpatient facilities, but in this case, she couldn’t really tell what entity was billing Greenblatt and therefore couldn’t tell how that fit into the No Surprises Act scheme.

Rovner: And whether that entity was actually covered by the No Surprises Act.

Tahir: Precisely. So that’s kind of where we’re left.

Rovner: What eventually happened with the bill?

Tahir: It’s kind of still unpaid and unresolved more than a year after the actual service was rendered, so it’s kind of still in limbo.

Rovner: After a year. What can patients do to prevent this from happening to them? I mean, it sounds like this patient did everything right.

Tahir: Right. I guess you got to check and see that your doctors are always in network, as amazing as that sounds. Check the forms that you get, even though they’re often tons of them, there’s a HIPAA form, there are all these forms you get. I guess you’ve just got to be careful what you sign and pay attention to what you sign. Even though oftentimes when you’re going to the doctor, it’s an incredibly stressful time, yourself might be sick, a loved one might be sick, it’s tough to say, but you’ve got to pay attention to the fine print when you’re going ahead with this care, as incredible as that sounds.

Rovner: It’s not like it used to be. Darius Tahir, thank you so much.

Tahir: Thank you.

Rovner: OK, we are back. 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Joanne, you’ve already done yours. Lauren, why don’t you go next?

Weber: Yeah. Mine is a piece in The Guardian by Jessica Glenza titled “Majority of Debtors to US Hospitals Now People With Health Insurance.” I think this is something that everyone on this panel knows, but I think it’s just a striking, if you take a step back and look at it, the concept of insurance for the average American would seem to think that would insure you from bad debts and from hospital debt. I think studies like this and stories like this are a good 10,000-foot-step-back reminder that this system is very broken and not working the way it should. So I think it’s just helpful to continue to realize, because this is a sea change from when only 1 in 10 folks that were insured had debt. I mean, so very much we are seeing a shift, and I think that’s important to consider as we talk about insurance issues throughout this podcast and throughout our coverage.

Rovner: It was in the early 2000s, I think, when standard deductibles started being in the four figures instead of the three figures. I mean, originally they were like $1,000, $1,500. Now people have $4,000 and $5,000 deductibles, but we know that people don’t have $4,000 and $5,000 in savings. So, of course, they’re in debt if they’re going to go get medical care. They do not have or any way to get the amount of money that they are expected to cough up before their insurance takes over, and how no one saw this coming, I can’t imagine because it’s been blaring in huge lights the whole time. Sorry, Rachel, go ahead.

Cohrs: My extra credit is a piece in The Washington Post. The headline is “Republican Governors in 15 States Reject Summer Food Money For Kids,” by Annie Gowen. And this published a week ago, I think, but it definitely flew under the radar for me. And I think it’s a great example of outside-of-D.C. journalism reporting on the consequences of state uptake on some of these optional policies that Congress passes. And I think the part that stood out most was a couple quotes, one from Iowa Gov. Kim Reynolds that said she opposed food assistance for low-income youth because childhood obesity has become an epidemic, and another where the governor of Nebraska was saying that he just doesn’t believe in welfare, so they’re not taking this money. Obviously, there is precedent for Republican governors not taking money that could help offer more services, make residents healthier, but this was just a pretty striking example, I think, because it does deal with kids and food insecurity. So I thought it was great accountability work for outside the Beltway.

Rovner: Basically, this is the summer school lunch program for kids because they’re not in school and they don’t necessarily get their lunch at school in the summer, so this is how they can get lunch, but apparently some governors say they don’t want to do that. Well, my extra credit this week is from Rachel’s colleague, Tara Bannow at Stat, and it’s called “Pumping Milk at JPM Was a Nightmare. It’s Part of a Bigger Problem in the Industry.” And in case there are listeners who don’t know, last week was the big J.P. Morgan Health[care] Conference in San Francisco, which each year draws the big money of health care to a hotel to chat each other up basically. Well, Tara Bannow, who does an awesome job covering the industry, is also back from parental leave and still breastfeeding, which means she needs a private place to pump on a regular basis.

The folks at JPM told her she would have access to a space, but turned out it was locked almost every time she needed it, and she ended up pumping in a bathroom stall, which is, and I won’t get into the details here, not ideal. Calls to other big health conferences suggested such problems would not happen there, but the suggestion of also that if there were more women in high places at these conferences, it wouldn’t be such an afterthought. It was a really, really good, thoughtful piece and good job.

OK, that is our show. 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 technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Joanne, where are you these days?

Kenen: I’m mostly on threads, @joannekenen1.

Rovner: Lauren?

Weber: Still on X @LaurenWeberHP.

Rovner: Rachel?

Cohrs: Still on X, @rachelcohrs.

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 KFF Health News’ 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.

As this election year begins in earnest, making it harder for Congress to pass bills, lawmakers on Capitol Hill are still struggling to fund the government for the fiscal year that began last October. And many health priorities hang in the balance.

Meanwhile, the Supreme Court is again wading into the abortion debate, accepting a case out of Idaho that pits a federal law requiring emergency care, including for pregnant women, against the state’s strict abortion ban.

This week’s panelists are Julie Rovner of KFF Health News, Sarah Karlin-Smith of the Pink Sheet, Tami Luhby of CNN, and Alice Miranda Ollstein of Politico.

Panelists

Sarah Karlin-Smith
Pink Sheet

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Tami Luhby
CNN

@Luhby

Read Tami's stories

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Among the takeaways from this week’s episode:

• In Washington, lawmakers have reportedly reached a deal that could pave the way for passing necessary government spending bills. But it is unlikely they will pass a full package before the current extensions end, leaving many federal health programs hanging. And ahead of next week’s Iowa caucuses, it bears asking what Republicans would do in health if the party reclaims the White House.
• The Supreme Court is again stepping into the fray over abortion rights, choosing to review the conflict between Idaho’s abortion ban and a federal law requiring emergency medical care. It is notable that justices did not have to take this case and, by swooping in now, are setting up another major abortion ruling before the 2024 election.
• The Biden administration announced it will scale back so-called conscience protections for health providers that the Trump administration sought to beef up. The back-and-forth over the policy — which was created during the George W. Bush administration — reinforces the importance of pressing presidential candidates about what they would do administratively on abortion policy, rather than asking what bills they might sign into law.
• News out of Florida this week: Newly introduced legislation there would, among other things, classify abortion as a felony and penalize those outside the state involved in the sale or distribution of abortion pills if they are “likely to be used in Florida” — a concerning example of a state effort to regulate access to abortion nationwide.
• And the FDA approved Florida’s request to import drugs from Canada, a change for which Republican Gov. Ron DeSantis is taking credit — though both President Joe Biden and former president Donald Trump could also claim some of that credit. But there are a lot of hurdles left before the state receives its first shipments, and due to the way the policy will be implemented, it may not save the state much money anyway.

“This Week in Health Misinformation” highlights Olympic gold medalist and medical crowdfunding beneficiary Mary Lou Retton, who said this week she could not afford health insurance before her headline-grabbing bout of pneumonia because her preexisting conditions made having insurance too expensive. But a decade into the existence of the Affordable Care Act, the fact is that patients can no longer be penalized on the insurance market for preexisting conditions — and, as the record 20 million Americans who enrolled in ACA coverage this year may attest, there are plenty of federal subsidies available to help afford insurance, too.

Also this week, Rovner interviews American Medical Association President Jesse Ehrenfeld, whose focus is helping the nation’s physicians navigate a rapidly changing health care system.

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

Julie Rovner: CNN’s “Bottled Water Contains Thousands of Nanoplastics So Small They Can Invade the Body’s Cells, Study Says,” by Sandee LaMotte. Also, ScienceAlert’s “It Turns Out Paper Straws Might Pose a Serious Problem Too,” by Carly Cassella. Also, The Washington Post’s “How Plastic Hides in Supposedly Eco-Friendly Laundry Products,” by Michael J. Coren.

Tami Luhby: KFF Health News’ “Most People Dropped in Medicaid ‘Unwinding’ Never Tried to Renew Coverage, Utah Finds,” by Phil Galewitz.

Alice Miranda Ollstein: Stat’s “Texas Taxpayers Wanted to Help the Poor Get Health Care. Instead They’re Funding a Medical School at a Wealthy University,” by Rachel Cohrs.

Sarah Karlin-Smith: The New York Times’ “The F.D.A. Warned an Asthma Drug Could Induce Despair. Many Were Never Told,” by Christina Jewett and Benjamin Mueller.

click to open the transcript

Transcript: All About the (Government) Funding

KFF Health News’ ‘What the Health?’Episode Title: 329Episode Number: All About the (Government) FundingPublished: Jan. 11, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 11, 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: Hello.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Tami Luhby of CNN.

Tami Luhby: Good morning.

Rovner: Later in this episode, we’ll have my interview with Jesse Ehrenfeld, this year’s president of the American Medical Association. It’s a bumpy time to be a doctor, and the AMA is more relevant than it’s been for quite a few years. But first, this week’s news. So we heard over the weekend that House and Senate negotiators reached a deal on top-line spending ceilings for defense and non-defense discretionary spending.

Actually, they were kind of the top lines, I believe, that they agreed to last summer, and then the House Republicans tried to change. That is all well and good, and it is definitely a prerequisite for passing full-year appropriations bills, but that’s not going to happen between now and Jan. 19, when the first of two temporary spending bills expires. So what do we expect to happen?

Ollstein: I was up on the Hill yesterday, and it’s a very “what they’re saying vs. what they’re doing” situation. They’re talking a lot about, “We got this top line. We’re moving forward. People are somewhat warming to the idea of another short-term CR [continuing resolution] to give them a little breathing room to get this done.” But then Republicans who were pissed about the entire process voted down an unrelated rule on an unrelated bill just to say, “We’re mad.” So that’s obviously not a good sign for getting big things done quickly in the next few weeks.

An issue I’m tracking is also conservatives who are disgruntled about the level of spending being higher than they wanted, saying, “Well, if we’re going to agree to this, we might as well get some policy wins out of it.” And they’re digging in harder on some of these anti-abortion provisions, other culture war things. I think the health care ones are being somewhat overshadowed right now by the immigration border stuff, but the health care things are still in the mix, for sure.

Rovner: Yeah. The CR that expires first also includes continuing authorizations for a bunch of health programs like community health centers and a delay of a bunch of scheduled Medicare payment cuts. Tami, you’re following WIC [Women, Infants, and Children nutrition program], I know, and food stamps. Do we have any idea what the fate is going to be of these things that will also expire when that first CR expires? Do we expect they’ll continue until Congress decides what to do?

Luhby: Well, actually things are looking a little better for WIC participants in terms of a shutdown, not necessarily in terms of full-year funding. But if the government had shut down in October, the USDA warned that it actually only had a few days left of money to provide for WIC. But if the government does shut down next week, then the USDA has told me that SNAP participants, food stamp participants, and WIC participants can expect to continue to get their benefits for food stamps January and February and for WIC January, February, March.

But separate from that, one of the issues that WIC participants have — and WIC, by the way, is the program that provides funding for pregnant women, new moms, infants, and young children to buy groceries. The WIC program is underfunded because there’s actually a big growth in enrollment. And so, even though the Senate provided some more money in their initial bill, they actually need more than a billion dollars more to continue the program at the current participation levels.

And a lot of folks are warning that if Congress doesn’t provide more money, there could actually be waiting lists for the first time in decades. So it’s a big issue that’s continuing because, as we know, the Republicans are not looking to add more money to nutrition assistance.

Rovner: Jumping ahead, it’s a little bit to the abortion debate. This is the argument that if you’re basically going to force women to have babies, you’re going to need to help support them if the women otherwise would’ve had an abortion because they couldn’t afford it. I think where we are with WIC, I think, is sort of the leading edge of this.

Luhby: And WIC is actually very important to that because it also provides breastfeeding assistance and guidance as well as other supports for new moms.

Rovner: So there were things, though, that didn’t even make it into the CR. One of them is the 3.4% cut in Medicare doctor pay. That took effect Jan. 1. Doctors I know would like to get that rolled back. There’s other things that are hoping to catch a ride on whatever the next vehicle is, right?

Karlin-Smith: I mean, one thing I had been watching is PBM [pharmacy benefit manager] reform. There seemed like there was some bipartisan and bicameral momentum to try and tack that on to the next big moving package. And one positive thing for that is that it does offer some amount of savings that then could be applied to other areas like spending, including potentially helping maybe with some of the Medicare cuts. So that’s something in the mix to look for.

Rovner: Yeah. Something that actually is proceeding on a separate track, right? We don’t expect that to be folded into the appropriations — unless we do. My impression was that was proceeding on its own, at least for the moment.

Karlin-Smith: I think it was proceeding on its own, but there’s been talk of could they fold it into any deal that struck to fund the government, because I think the likelihood that it really does fully clear both the House and Senate on their own is small.

Rovner: Yes, it is an election year. It is harder for Congress to get anything done. Speaking of which, on the campaign trail, the Iowa caucus is next week. Boy, that sort of snuck up on us. Former President [Donald] Trump still seems very likely to win, and he’s once again vowing to undo the Affordable Care Act, which, by the way, hit an all-time enrollment record of 20 million this week. And open enrollment isn’t even quite over. Tami, do we know what Trump would do instead? That seems to be the part. He doesn’t ever say.

Luhby: No. It’s pretty much the same plan that he probably has from 2016 and 2017, which we never really fully learned about. So, no, it’s just going to be replaced with a “better plan” because, in his view, Obamacare is failing, and as we know, [Florida Gov.] Ron DeSantis also jumped on the same bandwagon, saying that he would actually also come up with a better plan, but he needs a few months to think about it.

Rovner: Because it’s always been right about to happen, of course.

Luhby: Well, as you may have heard, health care is complicated.

Rovner: And we’ll see something in two weeks.

Luhby: Right. Along with his block grant proposal for Medicaid that he mentioned at last night’s CNN debate.

Rovner: Yes. I was sort of taken by the comments of how they would fix health care in that debate, because Nikki Haley says, “We can fix it with tort reform and transparency.”

Luhby: Transparency. Yes.

Rovner: Right. Which are nice things, and as we say, almost every week, Congress is working on those things, but they are not going to solve what ails the health care system. All right, let us turn to abortion. Remember last week when I said we were still waiting to hear from the Supreme Court on the emergency petition from Idaho regarding the conflict between its state abortion ban and the federal Emergency Medical Treatment & Active Labor Act, EMTALA?

Well, on Friday, the court not only took the case, it overturned the stay of Idaho’s ban. So, at least for now, doctors cannot even provide abortions in medical emergencies unless the woman is at immediate risk of death. Alice, I assume that gives us a hint of where the court might be going with this case, and I imagine also that similar case out of Texas.

Ollstein: Yeah. So again, with the Supreme Court, you kind of have to read the tea leaves and make educated guesses. They’re obviously very secretive. But people who are following this case closely that I’ve spoken to, they think that both the stay of the lower-court ruling and the fact that they took this case at all is the sign that they’re really gunning for ruling on the side of the state abortion restrictions. Because this is really about the state-federal clash. When state abortion bans run into federal protections for patients in emergency circumstances, and which will prevail in that circumstance. So they didn’t have to take this case. The thinking was there is eventually going to be a circuit split on this issue between the 9th Circuit and the 5th Circuit. But the 9th Circuit hasn’t had a chance to rule yet. And so they could have waited, let this play out, allowed the 9th Circuit to hear the case and issue a decision, that would’ve probably punted this case until after the election. So it’s really interesting that they instead wanted to swoop in, allow Idaho to leapfrog the 9th Circuit, and also insert themselves into this really politically volatile case, and now they’re poised to issue a ruling right before the 2024 election that could have major implications for the whole country.

Rovner: They’re going to hear the mifepristone case before this summer too, right?

Ollstein: Absolutely. And so even people who had sort of assumed on the mifepristone case like, “Oh, the Supreme Court’s going to kind of punt. They’re going to dismiss on standing.” Now, because of how aggressive they’re being in this other case, I have experts telling me, “Well, now I’m not so sure about the mifepristone case. Maybe they don’t care about optics as much as they used to.”

Rovner: Well, also, I think this is this Supreme Court’s theme, of “let states do whatever they want.” Even though federal law is supposed to trump state law, they seem to be reversing that in a rather aggressive fashion.

Ollstein: Yes. A big theme is definitely skepticism of federal rulemaking power. This falls under that same category as well.

Rovner: Well, speaking of federal rulemaking power, those who follow abortion policy in D.C. know that every time an administration changes parties, the so-called Mexico City policy that bans funding to international groups that support abortion rights gets either canceled or restored, depending on which party is in power. Well, now we have another policy that seems to be flip-flopping every time an administration changes. It was a rule first issued at the end of the George W. Bush administration. The so-called conscience rule made it easier for medical professionals and others in health care to decline to provide care that violates their religious or moral beliefs. So not just abortion but transgender care, in some cases, just treating people with AIDS. The Obama administration scaled back the Bush rule, and then the Trump administration broadened it. Then it got blocked by the courts, and now the Biden administration has formally rolled back the Trump changes that never really took effect. Alice, where are we with this?

Ollstein: Like you said, this is a back-and-forth, and I think this is why a lot of the questions being asked of candidates on the campaign trail right now, related to abortion, are the wrong questions. They keep getting asked about what kind of bills they would sign. That’s not the question. The question is what would they do administratively, which they could do so much. They could undo this. They could reverse all kinds of things. I follow the Title X stuff. I follow the Mexico City policy on restrictions on international spending on reproductive health. There’s just so much, obviously — FDA regulation of abortion pills — but these are the things we should be focused [on], not a bill that Congress has shown itself unable to pass even with one-party control of Congress.

Rovner: Nikki Haley keeps correctly saying there aren’t 60 votes for anything in the Senate related to abortion.

Ollstein: Right. But then, she also is saying that to mean a future Republican president couldn’t really do much, and that part is not true. They could do a lot.

Rovner: Exactly. Well, moving on, it’s January, and state legislatures are coming back into session. And we’re seeing some pretty eye-popping bills introduced in Florida, where abortion rights supporters just secured enough signatures to get a referendum protecting abortion rights on the 2024 ballot. Republican state Rep. David Borrero introduced a bill that would not only ban abortion, it would classify it as a third-degree felony with penalties of up to 10 years in prison. It also seeks to reach anyone outside the state who makes, sells, or mails abortion pills if they are, quote, “likely to be used in Florida.” The bill also defines personhood as beginning at the moment of fertilization, which would, among other things, make most birth control illegal and give fetuses constitutional rights. Alice, this bill is obviously not likely to pass, but legislators are playing the long game here by trying to make these things look sort of not out of the ordinary, right?

Ollstein: Yeah, the pill one, I think, is more the one to watch there. I’m curious if other states try to do that as well. Obviously, that runs into legal concerns about regulating interstate commerce, et cetera. But I think that we’ve seen these sort of nation attempts to restrict the movement of both people and medications across state lines, since that is a huge way that people are managing to terminate pregnancies despite bans right now. And so I think there’s only going to be more and more activity in that area to try to close off those remaining outlets for people. But yes, on the personhood front, that’s something that states have been attempting to do for a long time now, obviously more recently. And I think there’s sort of a strategy of, “Let’s just put it in everything we can. Let’s throw it in everything we can. Let’s throw it in bills. Let’s throw it in amicus briefs.” And the hope is to eventually force this issue in court and to get a court to rule on whether the 14th Amendment covers fetuses, basically. Will that happen and when remains to be seen, but there’s definitely an effort to sort of seed it in the landscape.

Rovner: Sarah, this obviously — not so much the personhood part, although maybe that too — but trying to ban the movement of medication is something that clearly impacts the FDA. They seem to have been pretty quiet about this, but there’s an awful lot that seems to be sort of threatening the basic core procedures of what the FDA does. Are you hearing anybody whispering about this? Is there concern?

Karlin-Smith: I think the mifepristone case at the Supreme Court is a concern for people who watch FDA’s power and regulation, not just because of abortion but because it is seen as depending on how the court decides that case is something that really could touch on all of its regulatory authority as well. Certainly, this provision that Florida is trying to put in is really something where they seem like they’re effectively trying to regulate the abortion pill throughout the entire country and regulate manufacturers. So that would be concerning, again, if that somehow came to pass and was not struck down by courts, as Alice mentioned, for interstate commerce regulation, which is not some power that is usually given to the states, but so, in general, the abortion pill controversy makes anybody who’s impacted by the FDA regulation nervous.

Rovner: Well, meanwhile, the Federal Trade Commission has entered the chat. This week, it barred a tech company from selling data on people’s visits to medical centers and other health facilities. This was not affecting abortion. They were actually just trying to help people figure out where people are and help them sort of get through their medical undertakings. But this seems like kind of a big deal enforcing privacy post-Dobbs. It’s the first one of these I’ve seen. Have you seen any of these, Alice?

Ollstein: I’m in the same camp as you. Yeah. This is sort of the first I’ve seen of this. But as has been the trend over the last couple of years, it’s a very “throw things against the wall and see what sticks” kind of environment, and so you can’t dismiss the outliers because the outliers can very quickly become the norm.

Rovner: This obviously was not a company that was trying to get women’s menstrual data and figure out whether they’re pregnant and whether they’re going to have an abortion. But there is a lot of concern that because there’s so much medical data floating out now in the metaverse, shall we say, that it would not be that hard to do that. And I guess the FTC is trying to plant a flag and say, “Mm-mm, don’t even try.” Although I’m sure people will …

Ollstein: Again, circling back to our previous theme, like, who a presidential administration installs at places like the FTC that you might not think that has anything to do with health care and abortion, but it certainly does. It certainly can. Same with DOJ, Labor Department. A lot of these things touch on reproductive health in ways that aren’t always obvious.

Rovner: That’s right. Well, turning to prescription drug news, the FDA has approved Florida’s request to import cheaper drugs from Canada. But, Tami, you wrote about this. This comes with a long list of caveats, right? It’s not like they just opened the borders and said, “OK, buy what you want.”

Luhby: No, and Florida has also put forth a fairly restricted proposal. It’s only going to be for people in their public payer program, people like inmates and people who are cared for by the county health systems and, later, Medicaid. And it’s also a pretty small list of drugs, drugs for HIV/AIDS and mental illness, and certain ones. But no, there’s a lot of hurdles before the state can actually start importing drugs. There’s going to likely be a lawsuit by PhRMA. They came out pretty strongly against it. They don’t want this, and Canada doesn’t necessarily want this. They said this in 2020 when the Trump administration first indicated that they were going to move in this direction, and then Health Canada on Friday put out a pretty strong statement saying they are clear in its position. “Bulk importation will not provide an effective solution to the problem of high drug prices in the U.S.” So there’s a long path before Florida will be able to actually see this and an even longer path before its general residents will see it. People may think, “Oh, I can go up to CVS now and order my Canadian version of the drug, which will be much cheaper.” And that’s not at all the case.

Rovner: Sarah, this has been going on for more than 20 years — I think I covered it first time in 1998 — because it’s really popular among Republicans and Democrats because it sounds so good. “We’ll just buy cheaper drugs from other countries where they have the same drugs, and they sell them for less money because they have price controls.” But Canada can’t even supply Florida, much less the rest of the country, right?

Karlin-Smith: Right. I think people, sometimes you look at Canada on a map geographically. It’s a very large area, but the population compared to the U.S. is much smaller. So the supply chain that’s feeding Canada is very different. And then you get into why HHS and FDA has usually pushed back against this idea is because they’re concerned about securing the supply-chain safety and making sure people are actually getting what they … think they’re getting and know how to use the drug. And what’s basically happened under starting the Trump administration and then Biden’s kind of continued it is they came up with a pathway to sort of make importation potentially possible. But they put in so many hoops that these states will have to go through and so many processes in place to ensure the safety of it that by the time Florida does all of this, and again, as Tami mentioned, FDA hasn’t cleared any specific drugs for Florida to import yet; each drug product still is going to have to go through a bunch of steps to get that OK. So by the time they do all of that, it doesn’t look like it’s going to save very much money. Florida’s estimating maybe not quite $200 million for the first year and about the same the second year. If you look at just their Medicaid spending in a year on outpatient drugs, it’s like $1.-something billion. So you can see how tiny a savings that is.

Rovner: Yes. This is one of those things that’s not been partisan. It’s always been sort of the FDA wanting to protect the integrity of the supply chain, whether it’s controlled by Democrats or Republicans versus Democrats and Republicans who would like to find a way to help their constituents get cheaper drugs.

Luhby: One thing also to note that’s going to be interesting, because there’ve been so many people involved in this, we saw Ron DeSantis say yesterday at the debate that he took credit for pushing the federal government and beating the federal government, I think he said, to be allowed to import drugs. But this is also going to be a talking point that Trump and Biden will also be able to say on the campaign. So basically, everyone is probably going to try to take credit for this.

Rovner: Right. Everybody’s going to take credit for something that’s probably only going to happen in a very small way, if it happens at all.

Luhby: If it all happens at all.

Rovner: That’s right. Well, also this week, drug maker Eli Lilly said it is setting up its own telehealth service to help patients access not only its soon-to-be blockbuster weight loss drug Zepbound but also other diabetes and migraine drugs, basically cutting out the doctor or at least cutting out the patient’s regular doctor, if they have one. Sarah, this feels to me like a really big sea change. Is the FDA going to let this happen? Is the AMA going to let this happen?

Karlin-Smith: It’s really interesting. I think the first headline of it makes it seem a little bit more extreme or maybe novel than once you actually look into the details because Lilly’s …

Rovner: Kind of like drug importation.

Karlin-Smith: Right. Although I think more patients maybe will actually be served by this program. But, basically, Eli Lilly is setting up a website that will then connect patients to outside telehealth companies that have the ability to prescribe the drug. Again, these telehealth companies are supposedly prescribing all different drugs, not just Eli Lilly products. The doctor’s supposed to make sure you actually qualify for the product, and so forth. And then Lilly also seems to have developed partnerships with a couple online pharmacy companies that could then directly mail you the product. So Eli Lilly is sort of helping facilitate these connections for patients. But I think probably to avoid various scrutinies by the federal government, they’ve tried to disconnect themselves a few steps, but certainly make the process of getting a drug and their drug easier for patients. Also helping ease the process of getting any copay support or coupons the company offers. So they seem to be kind of taking advantage of a trend that we’ve seen in other areas, with ADHD, like male sexual health products, and so forth, of people wanting to do this through telehealth. And so they’re trying to, I think, get at least a cut of it or at least help steer their product there. But there’s definitely going to be questions, I think, around how you handle advertising and other things for the government to look at.

Rovner: Yeah, it’s definitely a space that, now, we’re going to have to start watching as well as everything else. All right. Well, now it is time for “This Week in Health Misinformation,” which is going to Olympic gold medalist gymnast Mary Lou Retton. Retton, who is now in her mid-50s, contracted a rare form of pneumonia, ended up in the hospital for a month, and became the subject of a crowdfunding effort launched by her daughter because she didn’t have health insurance. Retton, who has been very closed-mouthed about her illness and what happened to the half a million dollars the crowdfunding campaign raised, as is her right, did do an interview this week with the “Today” show on NBC in which she said she couldn’t afford health insurance because her preexisting conditions made it too expensive. For the record, if you’re uninsured, you can still sign up for an Affordable Care Act Plan in most states, and you can’t be charged more due to preexisting conditions. And there are still extra subsidies that we talked about earlier that were implemented during covid that makes insurance even more affordable. Why is it that people don’t know this yet?

Ollstein: Well, as we saw with record-breaking enrollment, a lot of people do know it, but the people who don’t are still loud.

Rovner: We’re 10 years into the ACA!

Ollstein: Yes. It’s funny. I mean, living in D.C. and doing this work, I always try to think about what of all of our reporting actually breaks through around the country. And it’s always interesting to see what does and what doesn’t.

Rovner: I used to stomp around the NPR newsroom when the ACA was just getting up and running, saying, “It is not my job to do the administration’s publicity. It’s really not my job.” But …

Luhby: Yeah.

Rovner: … they are still working on it.

Luhby: It also may be selective ignorance, because I’m sure if she actually asked anyone about health insurance or called any agent or insurer and said, “Well, I have this preexisting condition,” they may have said, “Well, on the ACA, it doesn’t matter anymore.”

Rovner: Yes. And that if she said she didn’t have the money after her divorce, it’s like those are the people who are eligible for big subsidies. All right. Well, that is this week’s news. Now, we will play my interview with AMA President Jesse Ehrenfeld, and then we will come back and do our extra credits.

I am pleased to welcome to the podcast, in person here in our D.C. studio, Dr. Jesse Ehrenfeld, president of the American Medical Association. Dr. Ehrenfeld is an anesthesiologist, medical school professor, researcher on medical information technology, and director of a statewide health philanthropy in Wisconsin, among other activities. He’s an Afghanistan combat veteran twice over, as well as the first openly gay president of the AMA and a national advocate for LGBTQ+ rights. Dr. Ehrenfeld, thank you so much for coming in. You are a very busy person.

Jesse Ehrenfeld: Well, thanks for having me. It’s great to talk to you today.

Rovner: So I want to start on Capitol Hill, since we’re here in D.C.

Ehrenfeld: Sure.

Rovner: And Congress is coming back and working on a budget, or so we hear.

Ehrenfeld: We hope they’re working.

Rovner: I know physicians are facing, again, a cut in Medicare pay, but that’s not the only AMA priority here in Washington at the moment, right?

Ehrenfeld: Well, it’s a big one for us. And, you know, it’s really painful that you turn the clock back, Jan. 1, and 3.37% Medicare cut to physician payments. It’s unconscionable. And so we’re optimistic that we can get a fix, hopefully retroactive, as the omnibus consolidation work goes forward, short of this Jan. 19 deadline coming up. But we can’t have it. Physicians continue to struggle. My parents lost their own primary care physician because of a challenge with their primary care doctor not being able to take Medicare anymore. And what we’re seeing is more and more doctors just stopping seeing new Medicare patients, or opting out of the program entirely. So, every other provider under Medicare is actually fighting for how many increase they’re getting while doctors are getting cut. So we’re hopeful that we can solve this, but it really is something that’s just urgent for us as an association.

Rovner: I thought we took care of this in 2015. I feel like it’s Groundhog Day. I covered it every year from about 2003 to about 2015, and then we solved it briefly.

Ehrenfeld: We solved one problem and replaced it with another, unfortunately. And the doomed SGR did die in 2015 — the unsustainable “sustainable growth rate” problem — that did lead to those year-end patches. And, unfortunately now, though, because of budget neutrality rules and other — we’ll call them “features” — of the program, we’re in the situation again. We do have optimism, though, that we might get some standing inflationary updates. There was the introduction of a bill last session. And we hope that that can be something that does move forward once we get through this time-sensitive issue to deal with the 3.37% cut.

Rovner: So I feel like the physician shortage is kind of like climate change. People have been warning about it for decades, and suddenly it’s here.

Ehrenfeld: It’s here.

Rovner: With people having to wait weeks or sometimes months to see a doctor. Obviously, like with climate change, it’s going to take a while to get out of the hole that we have dug. I know we’ve seen the establishment of several new medical schools, both allopathic and osteopathic, in the past decade. How soon might we be able to see some relief, and what more will it take beyond training more doctors?

Ehrenfeld: Well, we’re opening more medical schools, but we’re not actually training more doctors. And that’s the problem. We haven’t expanded GME [Graduate Medical Education] residency programs. And unfortunately, because, as you know, GME funding through the federal government is tied to a fixed cap, set in the 1990s by Medicare, we’ve opened all these new schools and the students don’t have a place to go to train. So that’s a problem that we need to solve. We’ve had a little tiny, tiny increase these past few years, a couple of hundred spots here and there. We need thousands more training spots open. We need the GME dollars to come from Medicare. We also need to solve some of the issues around how we get international medical graduates here and ready to practice in the U.S. Twenty-five percent of practicing physicians in the U.S. were trained abroad. Most people don’t know that. We already have a huge international workforce, but we do silly things, like we’ll let an international doctor train their residency here, and then we make them go away for two years to their home country before they can come back. There are H-1B visa waiver bills that are circulating around the Conrad 30 extension. We need to do those things as well. Unfortunately, as you’re aware, immigration reform is a challenging issue here in Washington. But there are commonsense solutions that have bipartisan support. And we’re hopeful that we can get some workforce pressure reductions, not just by expanding GME for U.S.-trained individuals, but also those international graduates.

Rovner: Yeah, I feel like people forget that immigration is about more than just people coming across the southern border. There are a lot of skilled-worker issues in the immigration debate.

Ehrenfeld: In lots of industries, health care, technology, other places as well.

Rovner: I know the rise — or should I say the “re-rise” — of prior authorization requirements from insurance companies is something that contributes to physician burnout and the physician shortage by driving doctors out of practice, just from frustration. The Biden administration has a new regulation to limit prior authorization in the pipeline. Assuming that that regulation is finalized soon, how close will that come to fully addressing the problem for your members?

Ehrenfeld: You know, we hope it’ll move the needle a little bit, but we need wholesale reform, and we need to do more than Medicare Advantage plans. Unfortunately, I hear every week from colleagues who are just at their wits’ end, and it’s frustrating. I see it with my own parents. I’m an anesthesiologist. I have a habit now, I ask my patients: “So how long did it take your surgery to get scheduled?” Eh, it’s a couple weeks or a month. I said, “And how long did it take for your insurance company to approve the procedure?” And it’s months. And often what they tell me is they approved it, and then they denied it after they approved it. And they have to go through all of this rigmarole that just doesn’t make sense.

Rovner: You think that Congress is going to need to step in at some point, or is this something that can be worked out?

Ehrenfeld: I think we’re going to have to have regulatory relief from Congress, and we’re pushing for that through our grassroots network. Certainly, we try to bring all the third-party payers together. We have a set of principles that, theoretically, third-party payers have agreed to, and yet they ignore them, and they continue to just harass patients, really to improve their bottom line, but not doing what’s in their best interests.

Rovner: So I want to talk a little bit about physician autonomy. Since the overturn of Roe v. Wade, we’ve seen an increasing level of what I call legislators practicing medicine. Now we have the Supreme Court …

Ehrenfeld: It’s OK if they have an MD.

Rovner: [laughs] That’s true. Now we have the Supreme Court — none of whom have an MD as far as I know — about to decide whether doctors facing women with pregnancy emergencies should obey state abortion bans, the federal EMTALA law, or their medical ethics, all of which may conflict. What’s the AMA doing to help doctors navigate these very choppy and changing legal waters?

Ehrenfeld: “Choppy” is a good word for it. It’s confusing. And since the decision, the Dobbs decision, came out, we have been working with all of our state and federation partners to try to help physicians navigate this. And I can tell you, it’s unbelievable that now physicians are having to call their attorneys, the hospital legal counsel to figure out what they can and can’t do. And obviously, this is not a picture that is a picture that supports women’s health. So we are optimistic that we might get a positive ruling with this EMTALA decision on the Supreme Court. But, obviously, there’s a long way that we need to go to make sure that we can maintain access for reproductive care.

Rovner: You’re younger than I am, but when I was growing up and covering this, the AMA didn’t want to talk about abortion because it was controversial. And now, certainly in the last five or 10 years, the AMA has come out. Do you think that’s something that has dawned on the rest of the members of the AMA that this is not necessarily about abortion, this is about the ability to practice medicine?

Ehrenfeld: Well, you know, look, if you look at some of these socially charged restrictive laws, whether it’s in transgender health or abortion access, or other items, we take the same foundational approach, which is that physicians and patients ought to be making their health care decisions without legislative interference.

Rovner: So it’s not just abortion and reproductive health where lawmakers are trying to dictate medical practice but also care for transgender kids and adults and even treatment for covid and other infectious diseases. How big a priority is this for the AMA, and what are you doing to fight the sort of “pushing against” scientific discourse?

Ehrenfeld: Well, we will always stand up for science. And it’s so important that as an association we do that. Our foundation in 1847 was to get rid of quackery and snake oil salesmen in medicine. And yet here we are trying to do some of those same things with misinformation, disinformation. And obviously, even if you look at the attack on PrEP, preexposure prophylaxis for HIV prevention — you know, an important part of the Affordable Care Act, right? Making it basically zero out-of-pocket cost for many Americans — those things are just unconscionable. We have treatments. We know that they work. We ought to make sure that patients and their physicians can have access to them.

Rovner: What about doctors who are pushing things that you know to be not helpful?

Ehrenfeld: We call them out, and we would encourage others to call them out. If somebody is trying to sell something that’s inappropriate or do something that doesn’t follow the evidence, we need to call it for what it is, which is inappropriate.

Rovner: It’s not just legislators who want to practice medicine these days. We also have the rise of artificial intelligence, which I know promises both huge advances …

Ehrenfeld: I’m real, by the way.

Rovner: [both laugh] Yes, I can attest that you’re real. At least you seem real. But, obviously, our artificial intelligence can portend huge advances and also other issues, not all of which are good. How is the AMA trying to push the AMA more towards the former, the good things, and less towards the latter, the unintended consequences?

Ehrenfeld: Well, we’re really excited about it. I’m excited about it. I have an informatics background. So, you know, I believe that there is so much power that these technologies and tools can bring, but we need to make sure that the technology is an asset, not a burden. And we have all lived through the painful rollout of electronic health records where that just was not the case. So we did survey — we do routine surveys, data that’s a nationally representative sample — in August of this year, it’s on our website. An equal number of physicians are excited about AI as they are terrified about AI, anxious, concerned, right? And we need to make sure that we have the right regulatory framework. We’re very appreciative of the ONC [Office of the National Coordinator for Health Information Technology] rule that came out, out of HHS [the Department of Health and Human Services], at the end of last year. Certainly, the Biden administration’s, whole of government’s approach we think is important, but that is no substitution for regulation. And we need to make sure that we have appropriate regulation. The FDA doesn’t have the framework that they need. The system set up in the ’60s and ’70s for drugs and biologics and devices hasn’t held up. So we know that there have to be changes. We just need to make sure that those changes only let safe and effective algorithms, AI tools, AI-powered products come to the marketplace.

Rovner: Dr. Ehrenfeld, that’s all the time we have. Thank you so much for joining us.

Ehrenfeld: Oh, thanks for having me. It’s been a treat.

Rovner: OK, we are back. 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Tami, why don’t you go first this week?

Luhby: OK. Well, my extra credit is titled “Most People Dropped in Medicaid ‘Unwinding’ Never Tried to Renew Coverage, Utah Finds,” by KFF Health News’ Phil Galewitz. And as many of our podcast listeners know, states are reviewing the eligibility of their residents in Medicaid and terminating the coverage of those they deem ineligible. Roughly 14.4 million people have been disenrolled. And the big question is, what has happened to them? Did they return to Medicaid? Did they find coverage elsewhere, or did they become uninsured? And that’s the question that many actually Medicaid directors have been unable to answer.

So Phil’s story looks at a first-of-its-kind study conducted in October by Utah’s Medicaid agency. And in Utah, 94% of those disenrolled were dropped for procedural reasons, such as not returning their paperwork, rather than being deemed ineligible. And the study found that 57% of respondents did not attempt to renew their Medicaid coverage. Thirty-nine percent shifted to employer plans, and 15% signed up for Affordable Care Act coverage. So they remained insured, but 30% became uninsured. The story also shows that many Medicaid enrollees said that they had trouble reapplying for Medicaid coverage. They didn’t get the documents. They didn’t have the necessary paperwork. They couldn’t get their questions answered. And these are all things that we’ve heard about anecdotally, but the Utah study and Phil’s story actually put some numbers to it. And interestingly, Utah officials also confirmed that the U.S. Department of Health and Human Services is conducting two audits of the state’s Medicaid unwinding. So we’ll see what happens and what we find out from Utah may inform us about what’s happening in the rest of the country.

Rovner: Yes, we have noted before that HHS has been very close-mouthed about how it is trying to get states to maintain coverage for these people who are, if not eligible for Medicaid anymore, eligible for something else. Alice, you have kind of a related story, so why don’t you go next?

Ollstein: Yeah, I have something from our own Rachel Cohrs at Stat. It’s called “Texas Taxpayers Wanted to Help the Poor Get Health Care. Instead They’re Funding a Medical School at a Wealthy University.” It’s a great accountability story about how taxpayers were convinced to put up tens of millions of dollars that they thought was going to provide care for very poor people in the area around Austin, Texas. And instead, basically, none of that money is going to … directly to provide that care to people. And instead, it’s gone to build fancy buildings at this medical school, and overhead, and recruiting faculty. And the school and hospital insist that all of this trickles down eventually to patients. But it’s not what taxpayers feel they were promised. And so they’re getting upset about that.

Rovner: It is a very nice medical school. Sarah.

Karlin-Smith: I looked at a New York Times story from Christina Jewett and Benjamin Mueller, “The F.D.A. Warned an Asthma Drug Could Induce Despair. Many Were Never Told,” and it’s about Singulair, a now generic asthma medicine. Over 20 years after it was first approved, FDA added what’s known as its strictest warning, a black box warning, warning of very serious mental health side effects, including suicidal thoughts. And The New York Times investigation seems to have found out that really these messages are not reaching doctors. They’re not reaching patients, or parents, and many young kids who are taking this medicine. And that has led to many ill effects, including some very young people who have died by suicide. And it’s a really good dive into the challenges that FDA faces and kind of translating their regulatory action into something that then gets communicated to a doctor, and then a doctor translates to a patient. In many ways, it’s not that surprising a story to me because I think it’s kind of well known that not a lot of people read drug labels and then certainly not on an individual level, but even on a doctor level. And I think a lot of the risk-benefit conversations that FDA envisions happen between doctors and patients before people take drugs don’t actually happen in the real world. I once actually had a doctor who told me, “This medicine has a box warning, but don’t worry about it.” Which I always find as a pretty funny story as a drug reporter. And it just also raises a lot of issues, this story, about how drugs are studied on children and what’s done to make sure that as a drug goes generic, the safety is still being monitored, and somebody is responsible again for ensuring people are aware of new safety updates. So it’s a really good dive. I think the thing I was most struck by, though, is I think the solutions perhaps here are not ones that would be very popular in the U.S., which is that by design, the FDA does not regulate the practice of medicine. And, in most cases, I don’t think Americans would want FDA pushing the boundaries much further to get at the safety hurdles this story maybe flags.

Rovner: Yeah. More along our theme of the federal government and its role in society. Well, my extra credit this week is actually a collection of stories. It’s sparked by the headline on this month’s issue of Consumer Reports, which is “How to Eat Less Plastic.” The first story is from CNN reporting on a study in the proceedings of the National Academy of Sciences called “Bottled Water Contains Thousands of Nanoplastics So Small They Can Invade the Body’s Cells, Study Says.” And it basically says that plastic sheds just like skin cells do. So anything you eat or drink that’s stored or wrapped in plastic is going to get into whatever it is you’re putting into your body. If that’s not enough to give you pause, my second story is from ScienceAlert, which is a website, called “It Turns Out Paper Straws Might Pose a Serious Problem Too.” And it’s about a study that found that many paper straws contain those forever chemicals we keep hearing about, called PFAS, which, of course, are also in many plastics. Finally, if that’s not enough plastic for you, here’s a story from The Washington Post called “How Plastic Hides in Supposedly Eco-Friendly Laundry Products.” Basically, those laundry sheets that can replace the use of all those plastic bottles that we keep seeing ads for? Apparently, even many of those sheets that claim to be, quote, “plastic-free” contains something called polyvinyl alcohol, which is, you guessed it, a plastic that’s been found in drinking water and breast milk. I think the message here is everything you do is probably bad for you in some way, so be humble and do the best you can.

OK, that is our show. 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 technical guru, Francis Ying, and our editor, my fellow happy Michigan Wolverine this week, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Sarah, where are you these days?

Karlin-Smith: I’m trying to be places, but then it’s hard to be at all of them. So mostly Twitter and Bluesky, @SarahKarlin or @sarahkarlin-smith.

Rovner: Tami?

Luhby: The best place to find me is cnn.com.

Rovner: There you go. Alice.

Ollstein: Still on X @AliceOllstein, and @alicemiranda on Bluesky.

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 KFF Health News’ 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.

It’s a new year, but the abortion debate is raging like it’s 2023, with a new federal appeals court ruling that doctors in Texas don’t have to provide abortions in medical emergencies, despite a federal requirement to the contrary. The case, similar to one in Idaho, is almost certainly headed for the Supreme Court. Meanwhile, Congress returns to Washington with only days to avert a government shutdown by passing either full-year or temporary spending bills. And with almost no progress toward a spending deal since the last temporary bill passed in November, this time a shutdown might well happen.

This week’s panelists are Julie Rovner of KFF Health News, Lauren Weber of The Washington Post, Shefali Luthra of The 19th, and Victoria Knight of Axios.

Panelists

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories.

Shefali Luthra
The 19th

@shefalil

Read Shefali's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

• New year, same Congress. It’s likely lawmakers will fall short of their early-year goals to pass necessary spending bills, prompting another government shutdown or yet another short-term extension. And funding for pediatric medical training is among the latest casualties of the clash over gender-affirming care, raising the odds of a political fight over the federal health budget.
• The emergency abortion care decision out of Texas this week underscores the difficult position health care providers are in: Now, a doctor could be brought up on charges in Texas for performing an abortion in a medical emergency — or brought up on federal charges if they abstain.
• A new law in California makes it easier for out-of-state doctors to receive reproductive health training there, a change that could benefit medical residents in the 18 states where it is effectively impossible to be trained to perform an abortion. But some doctors say they still fear breaking another state’s laws.
• Another study raises questions about the quality of care at hospitals purchased by private equity firms, an issue that has drawn the Biden administration’s attention. From the Journal of the American Medical Association, new findings show that those private equity-owned hospitals experienced a 25% increase in adverse patient events from three years before they were purchased to three years after.
• And “This Week in Medical Misinformation”: Robert F. Kennedy Jr. earned PolitiFact’s 2023 Lie of the Year designation for his “campaign of conspiracy theories.” The anti-vaccination message he espouses has been around a while, but the movement is gaining political traction — including in statehouses, where more candidates who share RFK Jr.’s views are winning elections.

Also this week, Rovner interviews Sandro Galea, dean of the Boston University School of Public Health, about how public health can regain the public’s trust.

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

Julie Rovner: Politico’s “Why Democrats Can’t Rely on Abortion Ballot Initiatives to Help Them Win,” by Alice Miranda Ollstein, Jessica Piper, and Madison Fernandez.

Lauren Weber: The Washington Post’s “Can the Exhausted, Angry People of Ottawa County Learn to Live Together?” by Greg Jaffe.

Victoria Knight: Politico’s “Georgia Offered Medicaid With a Work Requirement. Few Have Signed Up.” by Megan Messerly and Robert King.

Shefali Luthra: Stat News’ “Medical Marijuana Companies Are Using Pharma’s Sales Tactics With Little of the Same Scrutiny,” by Nicholas Florko.

Also mentioned in this week’s episode:

• Law Dork’s “ADF Is Providing Free Legal Representation to Idaho in Anti-Abortion, Anti-Trans Cases,” by Chris Geidner.
• JAMA Network Open’s “Barriers to Family Building Among Physicians and Medical Students,” by Zoe King, Qiang Zhang, Jane Liang, et al.
• The Journal of the American Medical Association’s “Changes in Hospital Adverse Events and Patient Outcomes Associated With Private Equity Acquisition,” by Sneha Kannan, Joseph Dov Bruch, and Zirui Song.
• KFF Health News’ “RFK Jr.’s Campaign of Conspiracy Theories Is PolitiFact’s 2023 Lie of the Year,” by Madison Czopek, PolitiFact, and Katie Sanders, PolitiFact.

click to open the transcript

Transcript: New Year, Same Abortion Debate

KFF Health News’ ‘What the Health?’Episode Title: New Year, Same Abortion DebateEpisode Number: 328Published: Jan. 4, 2024

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, Happy New Year, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF 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. 4, 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 Lauren Weber of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: Victoria Knight of Axios News.

Victoria Knight: Hey, everyone.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: An entire panel of KFF Health News alums. I’m pretty sure that is a first. Later in this episode, we’ll have my interview with Boston University School of Public Health dean Dr. Sandro Galea. He has a new and pretty provocative prescription for how public health can regain public trust. But first, there was plenty of news over the holiday break, in addition to my Michigan Wolverines going to the national championship — sorry, Lauren — plenty of health news, that is. So we shall get to it. We will start on Capitol Hill, where Congress is poised to come back into session — apparently no closer to a deal on the appropriations bills that keep the government open than they were when they left for Christmas, and now it’s only two weeks until the latest continuing resolution ends. Victoria, are we looking at a shutdown again?

Knight: I was texting a lot of people yesterday trying to feel out the vibes. I think a lot of people think a shutdown seems pretty likely. A reminder that we have another member of Congress that is leaving on the Republican side in the House, so now the Republicans can only lose two votes if they’re trying to pass a bill. So when you have House Freedom Caucus members saying, “Hey, we don’t want to agree to any appropriations bills without doing something about the border,” and Democrats unlikely to agree to any border demands that the Freedom Caucus is wanting, it seems like we may be at a standstill. I know there is some reporting this morning that possibly they may just do another fiscal year continuing resolution until …

Rovner: You mean like the last couple of years we’ve done a full-year CR?

Knight: Yeah, exactly. So …

Rovner: The thing they swore they wouldn’t do.

Knight: And [House] Speaker [Mike] Johnson said, he promised he wouldn’t do that, so it’ll be interesting to see how that all plays out. As far as I’ve heard the latest, there’s no top-line funding number, but it does seem like a shutdown may be looming.

Rovner: Well, assuming there is a spending deal at some point, and the fact that 2024 is an election year where not much gets passed, a lot of lawmakers have a lot of things they would like to attach to a moving spending train, assuming there is a moving spending train. What’s the outlook for the bill that we were talking about all of December on PBMs [pharmacy benefit managers] and health transparency and some extensions of some expiring programs That’s still kicking around, right?

Knight: Yeah. That’s definitely still kicking around. So there are some extenders like for community health centers and averting some cuts to safety-net hospitals. Those are really high priority for lawmakers. I think those will make their way onto any kind of deal most likely. What seems more up in the air is the transparency measures for PBMs and for hospitals and for insurers. That was the big, as you mentioned, the big pass the House in December. The Senate has introduced their own versions of the bill and there’s talk that maybe some of that could ride onto if there is some kind of funding deal, but it’s also possible that maybe it’s more likely to be punted to the lame duck session. So, post-election, when Republicans are trying in the House and Senate Democrats are trying to do their last hurrah before the new Congress comes in. So we’ll see. Latest I heard yesterday there were some negotiations around the transparency stuff, so it’s still possible, but who knows?

Rovner: Congress is the ultimate college student. They don’t do anything until they have a deadline. Meanwhile, we have yet another health program caught up in the culture wars, this time the Children’s Hospital Graduate Medical Education [Payment] program. Because most medical residencies are funded by Medicare and because Medicare doesn’t have a lot of patients in children’s hospitals, this program was created in 1999 to remedy that. Yes, I covered it at the time. Republicans in the House are happy to reauthorize it or just to fund it through the appropriations process, which keeps the money flowing, but only if it bans funding for children’s hospitals that don’t provide gender-affirming care for transgender minors. It appears that has killed the reauthorization bill that was moving for this year. Is that the kind of thing that could also threaten the HHS [Department of Health and Human Services] spending bill?

Knight: Yeah, I mean there are provisions within the HHS bill to ban Medicare, Medicaid paying for gender-affirming care. I don’t know. We haven’t done much debate on the Labor-HHS bill. It’s been the one that’s been put to the side. It hasn’t even gone through the full committee, so we haven’t …

Rovner: In the House, right?

Knight: Yeah, in the House, yes. Yeah. But yeah, I think it’s definitely possible. Just broader picture, this is an issue that Republicans are trying to make a bigger thing that they’re running on in different congressional districts, talking about banning gender-affirming care. So I think even if we don’t see it now, it’s probably something that we’re going to continue seeing.

Rovner: Well, we will obviously talk more as Congress comes back and tries to do things. So new year, same old abortion debate. This week’s big entry is a decision by a panel of the 5th Circuit Court of Appeals ruling that EMTALA, the federal law that requires hospitals to at least screen and provide stabilizing care to anyone who presents in their emergency room, does not supersede Texas’ abortion ban. In other words, if a pregnant woman needs an abortion to stabilize her condition, she’d also have to meet one of the exceptions in the Texas abortion ban. Given that we don’t really know what the Texas exceptions are, since we’ve had litigation on that, that could be a tall order, right, Shefali?

Luthra: Yes. Doctors have basically said that the Texas exceptions in the state law are unworkable. And I think it’s worth noting that what EMTALA would require and what is in effect in other states with abortion bans is again very narrow. We are talking about the smallest subset of abortions, the smallest subset of medical emergency abortions, because this doesn’t apply to someone with a fetal anomaly who cannot give birth to a viable child. This doesn’t apply to someone who maybe is undergoing chemotherapy and can’t stay pregnant. This is for people who have situations such as sepsis or preterm premature membrane rupture. These are really, really specific instances, and even then, Texas is arguing and the 5th Circuit says, hospitals don’t have to provide care that would by all accounts be lifesaving.

Rovner: This puts doctors, particularly in Texas, in an untenable situation where if a woman presents, say, with an ectopic pregnancy, which is neither going to produce a live baby and is likely or could definitely kill the woman, if they perform that abortion, they could be brought up on charges in Texas, but if they don’t perform the abortion, they could be brought up on federal charges.

Luthra: And this is the bind that doctors have found themselves in over and over again. And I do want to reiterate that this isn’t actually unique to Texas because even in states where the EMTALA guidance is in effect, doctors and hospitals remain very afraid of coming up against the very onerous abortion penalties that their laws have. I was talking to a physician from Tennessee earlier this week, and she made the point that what your doctor feels safe doing, it comes down to luck in a lot of ways. Which city you happen to live in, which hospital you happen to go to, what the lawyers on that hospital staff happen to think the law says. It’s really untenable for physicians, for hospitals, and more than anyone else for patients.

Rovner: Now, despite Justice [Samuel] Alito’s hope in his Dobbs opinion overturning Roe that the Supreme Court would no longer have to adjudicate this issue, that’s exactly what’s going to happen. There’s already an emergency petition at SCOTUS from Idaho wanting to reverse a 9th Circuit ruling, preventing them from enforcing their abortion ban over EMTALA. In other words, the 9th Circuit basically said, no, we’re going to put this Idaho ban on hold to the extent that it conflicts with EMTALA until it’s all the way through the courts. Not to mention the mifepristone case that could roll back availability of the abortion pill. Is it fair to say that Justice Alito’s reasoning backfired here, or was he being disingenuous when he … did he know this was going to come back to the court?

Luthra: Not one of us can see inside any individual justice’s heart or mind, but I think we can say that anyone who seriously thought that overturning Roe v. Wade, which had been in effect for almost 50 years, would bring up no legal questions to be answered again and again by the courts clearly hadn’t thought this through. I was talking to scholars this week who think that we’ll be spending the next decade answering through the courts all of the new questions that have been instigated by the decision.

Rovner: Yeah, that’s definitely not going to lower their workload. Well, speaking of Idaho, the “Law Dork” blog has an interesting story this week about how the Alliance Defending Freedom — it’s a self-identified Christian law firm that represents mostly anti-abortion and other conservative groups in court — is now providing free representation to the state of Idaho in its effort to keep its state abortion ban in place. ADF is also representing Idaho in a case about bathroom use by transgender people. Now, conservative organizations and states often work together on cases, as do liberal organizations in states, that is not rare. But in this case, ADF is actually representing the state, which poses all kinds of conflicts-of-interest questions, right? Lauren, you’re nodding.

Weber: Yeah, I mean it’s pretty wild to see this kind of overlap. As you pointed out, Julie, it’s not rare for attorney general’s offices to seek outside legal help, that happens all the time. They’re understaffed. There’s a lot of problems they can address. But to fully turn over a case essentially to an ideological group is something different altogether because it also implies that that group is giving a gift to the government. It implies that they may be able to take on more cases because if it’s for free, then who knows? And I want to point out that this group really is at the forefront of many of the battles that we’re seeing play out in health issues legally across the country. I mean, they’re involved in a lot of the gender-affirming care cases and even in dealing with some of the groups that are promoting some of the legislation in places across the country. So this is quite a novel step and something to definitely be on the lookout for as we pay attention to many court cases that are going to play out over the next couple of years.

Rovner: Yeah, this was something I hadn’t really focused on until I saw this story and I was like, “Oh, that is a little bit different from what we’ve seen.” Well, while we were on the subject of doctors and lawsuits and the 5th Circuit Court of Appeals, a panel there kept alive a case filed by three doctors against the FDA, charging that it overstepped its authority by recommending that doctors not prescribe ivermectin, an anti-parasite drug, for covid. We’ve talked a lot about how the mifepristone case could undermine FDA’s drug approval process. Obviously, if anyone can sue to effectively get a drug approval reversed, this case could basically stop the FDA from telling the public about evidence-based research, couldn’t it?

Weber: This case is quite wild. I mean, as someone that covers misinformation and disinformation and has extensively covered the ivermectin sagas over the last couple of years, the idea that the FDA cannot come out and say, “Look, this drug is not recommended,” it would be a severe restricting of its authority. I mean, government agencies are known to give advice, which does not always have to be neutral. Historically, that is what has been considered just the status quo legally. And so for the court to restrict the FDA’s authority in this way — if this does, it’s obviously still up for appeal, so who knows? But if it were to be successful, essentially everything the FDA ever put out would have to say, “But go talk to your physician,” which would lead to a little bit more of a wild, wild West when it comes to evidence-based medicine as we know it today.

Rovner: Back on the abortion beat, the news isn’t all about bans in California. The new year is bringing several new laws aimed at making abortion easier to access. Shefali, tell us about some of those.

Luthra: California is really interesting because they really position themselves as the antithesis of states banning abortion. And the law that you’re discussing here, Julie, this is part of a real concern that a lot of physicians have, which is that in states with abortion bans, it’ll be harder for medical residents to be trained in appropriate health care. That means providing abortion care. It means providing comprehensive OB-GYN care in general, right? Miscarriage management, you learn how to do that in part by providing abortions. California has implemented a law this year that would try to help more out-of-state doctors come to California to get trained in how to provide this kind of care.

I think where this gets tricky and where doctors I’ve spoken to remain concerned, confused, it’s not a panacea, is the concern about whether any single state in and of itself can do enough to rectify what is happening in 18 states across the country. That’s a very, very tall order, and it comes with other concerns of: Will residents feel safe, able to come to California? Will their institutions want to send them? These are all open questions, and I think this California law, this project that they’re taking on, is incredibly interesting. I think it’ll take some time for us to see both what the impact is and what the kinks and challenges are that emerge along the way.

Rovner: I was also interested in a California law that says that California officials don’t have to cooperate with out-of-state investigations into doctors prescribing abortion pills or gender-affirming care.

Luthra: This is, again, really interesting, and I mean, I think what we are going to see is individual state laws continuing to run up against each other and questions over whose authority applies in what situations. This has come up for doctors constantly, right? The ones who live in states with abortion protections but want to provide care in other states. What happens if they are flying across the country and have a layover in a state with an abortion ban? What happens if they have a medical emergency in a state that they have maybe broken the law of, whose law applies there? These are things that have left a lot of doctors really concerned. I know I’ve spoken to physicians who say that even despite the legal protections in their states, in a state like California for instance, they still don’t feel safe actively breaking another state’s laws. And again, this is just one of those questions we’re going to keep watching and seeing play out. Who ultimately is able to decide what happens and what role would the federal government eventually have to play?

Rovner: I think these were things, these were the kinds of questions that I don’t think the Supreme Court really considered when they overturned Roe. There’s so many ramifications that we just didn’t expect. I mean, there were some that we did, but this seems to be an extent that it’s gone to that was not anticipated.

Luthra: It’s just a whole mess of, if not undesired, then perhaps unanticipated or not fully planned-for questions and concerns that are now emerging.

Rovner: So I wanted to call out a survey in the Journal of the American Medical Association about reproduction more broadly, not about abortion. How hard it is for medical students and young doctors to build families early in their careers — a time when most people are building their families. Medical training takes so long in many cases that women, in particular, may find it much more difficult or impossible to get pregnant if they wait until after their training is done. And the pace of medical care delivery and the patriarchal structure of most medical practice frowns on women doing things like getting pregnant and having babies and trying to raise children. I vividly remember a doctor retreat I spoke at in 2004 when a 30-something OB-GYN said that when she got pregnant, her residency adviser accused her of wasting a residency spot that could have gone to someone who wasn’t going to take time out of their career. I think things have progressed since then, but apparently not all that much, according to this survey.

Luthra: And this, I think, is really interesting because especially after the covid pandemic, we saw obviously, health care workers leave the field in droves. We saw more women leave the field than men. And what that spoke to was, in part, that working through covid was really taxing. Women were more often in positions that were on the front lines, but what it also spoke to is that the culture of medicine has long been very unfriendly toward the family-building burdens that often fall on women, and that hasn’t gotten better. If anything, it’s gotten worse because child care is even harder to come by. Moms, in particular, have way more to juggle and to balance than they once did. And the support, it’s not even fair to say it hasn’t caught up. It was never there to begin with.

Weber: And just to add on that, I mean, I find it — that study is great, and I will say I have family members that struggle with this currently. It’s wild to me that the American Academy of Pediatrics recommends a 12-week parental leave, and you possibly couldn’t finish your residency or qualify for a surgery residency if you take more than six weeks. I mean, I think that, in itself, that factoid really says exactly what Shefali was getting at. The culture of medicine is not at all friendly to folks that are considering this whatsoever.

Rovner: There’s so many women in medicine now. Now it’s making a problem not just for the women in medicine, but for everybody who wants medical care. So maybe that will get some attention paid to it. Moving on to “This Week in Private Equity,” we have another study from the Journal of the American Medical Association. It found that hospitals that were bought by private equity firms had a 25% increase in adverse events in the three years following their acquisition. Adverse events include things like falls, hospital-acquired infections, and other harm that, in theory, could or should have been prevented. It’s not really hard to connect the dots here, right? Private equity wants to raise more money, and that tends to want to cut staff, so bad things happen. I see you nodding, Victoria.

Knight: Yeah, I mean, I think this is an ongoing issue. It’s something that the Biden administration has said they want to look into, just decreasing quality of care in places that are taken over by private equity. I’m not sure there’s a really good solution to it at this point in time. And I think it also speaks to the broader issues of consolidation among the health care industry and the business of health care and what that means in regards to quality for patients. But yeah, I think this study is just another piece in building up a case of why sometimes private equity doesn’t always seem to equate to the best care for patients.

Luthra: If we go back in time a little bit, there is more evidence that shows the role that private equity has played in not only reduction in quality of care, but in the opposition between the health care industry and consumers. And the example I’m thinking of is air ambulances and surprise billing by those ER staffing firms, all of which were eventually owned by private equity firms that have their own set of incentives that is at odds with the goal of providing care that people can afford and can access, and that keeps them healthy.

Rovner: Indeed. Well, following “This Week in Private Equity,” we have “This Week in Health Misinformation.” My winner this week is Robert F. Kennedy Jr., who was awarded the “Lie of the Year” from PolitiFact for not just his repeated and repeatedly debunked claims about vaccines, but other fanciful conspiracy theories about covid-19, mass shootings, and the rise in gender dysphoria. I will post the link so I don’t have to repeat all of those things here. Which brings us to the story I asked Lauren here to talk about, how the anti-vax movement is quietly gaining a foothold in state houses. Lauren, tell us what you found.

Weber: Well, I found that it’s becoming very politically advantageous, to some extent. Political clout around anti-vaccine movement is growing. So you’re seeing more and more state legislators get elected that have anti-vaccine or vaccine-skeptical views. And I went down to Baton Rouge and 29 folks that were supported by Stanford Health Freedom, which is against vaccine mandates, got elected in this year’s off-cycle elections. So who knows what will happen next year, but you’re already seeing this reflected in other states. In Iowa, legislators this year stopped the requirement that you can talk about the HPV vaccines in schools. In Tennessee, home-schooled kids no longer have vaccine requirements. In Florida, they banned any possible requiring of covid vaccines, which experts said they worry if you just strike “covid” from that, that could lead to the banning of other requirements for vaccines. You’re seeing this momentum grow, and as you mentioned, Julie, RFK Jr. has played a role in this.

As I talk about in my story, back in 2021, he went down to Louisiana and really riled up some anti-vaccine fever in a legislative hearing about the covid vaccine. And so it’s a combination of things. People are reacting to a lot of misinformation that was spread during covid about the covid vaccine. And that distrust of the covid vaccine is seeping into childhood vaccinations. I mean, this year we saw data that came out that said in the 2022-2023 school year, we saw the highest rate of exemption rates for kindergartners getting their vaccinations. That’s a bad trend for the United States when it comes to herd immunity to protect against things like measles or other preventable diseases. So we will see how the next year plays out legislatively, but as it stands right now, I expect to see much more anti-vaccine movement in the statehouses in 2024.

Rovner: I’ve been covering the anti-vax movement for, I don’t know, 25, 30 years. There’s always been an anti-vax movement. It’s actually this combination of people on the far left and people on the far right, they tend to both be anti-vax, but I think this is the first time we’ve really seen it come into actual legislating way. In fact, the trend over the last couple of years has been to get rid of things like religious exemptions for families getting their children vaccinated in order to attend public school. So now we’re expecting to see the reverse, right?

Weber: Yeah, as you said, this is a horseshoe political issue that it’s been far left, far right, but now it’s really seeped into the far-right conservative consciousness in a way that has become a political advantage for some candidates. And so you’re seeing stuff that would previously be, not even make it to the floor for a vote, have to be vetoed, make it out of a committee, where previously some of these things would’ve looked at the signs and said, this is just not true. Now there’s more political power behind the ideology of some of these anti-mandate freedom pushes. So it’s really going to be something to track in this upcoming year.

Rovner: I think the other trend we’re seeing is actual health officials talking about these kinds of things, led by the Florida Surgeon General, Dr. [Joseph] Ladapo. He’s now moved on beyond recommending that young men not get the covid vaccine, right?

Weber: Yeah. So yesterday he sent out a health bulletin, and I just want to take a step back to say this is incredibly unprecedented because this is a state health officer sending out a bulletin to the state saying that he does not recommend anyone … he wants to halt the use of mRNA covid vaccinations. Now, that is not a position that any other state health officer has taken. It’s not a position that any national health agency has taken. He made it based on claims that have been debunked. He primarily based it on a study that several of the experts I talked to said it is not one that they would base assumptions on.

His claims were implausible, but needless to say, I mean, he’s the health director for the third-largest state in the union. I mean, his words carry weight, and his political patron is Ron DeSantis. Now, DeSantis has not commented publicly yet on this, but oftentimes it seems that they both have worked hand in hand to fight against vaccine mandates and to cause a ruckus around things like this. So it needs to be seen the politicization of this as this continues to play out.

Rovner: Well, that is a wonderful segue into our interview this week with Dr. Sandro Galea about the future of public health. So we will play that now and then we will come back and do our extra credits.

I am pleased to welcome to the podcast Dr. Sandro Galea, dean of the Boston University School of Public Health. Longtime listeners will know I’ve been concerned about the state of public health since even before the pandemic. Dr. Galea has a new book of essays called “Within Reason: A Liberal Public Health for an Illiberal Time” that takes a pretty provocative look at what’s gone wrong for public health and how it might win back the support of the actual public. Dr. Galea, thank you so much for joining us.

Sandro Galea: Thank you for having me.

Rovner: So I want to start with your diagnosis of what it is that ails public health in 2024.

Galea: Well, I suppose I start from the data, and the data show that there is a tremendous loss of trust in science broadly, in public health more specifically. Data from Pew that came out just a few months ago show, really, a 25-point drop in trust in medicine and in health from before the pandemic. So the question becomes why is that? What’s going on? And what I try to do in the book is to identify a number of things that I think have really hurt us, and I could numerate those. No. 1, it is we took a very narrow approach to our perception of what should have been done without leaving space for a plurality of voices that weigh different inputs differently.

No. 2, that through the mediation of social media as a way of extending our voice, we were perhaps inhabited false certitude much more than we ever meant to or much more than we do when we think about our science. And No. 3, we allowed ourselves to become politicized in a way that’s unhealthy. Perhaps partisanized is an even better term because public health is always political, but we allowed ourselves to become blue versus red, and that doesn’t serve anybody because public health should be there to serve the whole public. And I think those three big buckets, obviously in the book I write about them in much more detail, but I think they capture the fundamental problems that then have resulted in this loss of trust we face right now.

Rovner: So I’ve had experts note that the lack of public trust in public health isn’t necessarily because of anything the public health community has done. It’s because of a broader pushback against elites and people in power of all kinds. Do you think that’s the case, or has public health also contributed to its own, I won’t say downfall, but lack of status?

Galea: I feel like the answer to that is “and,” meaning that, yes, there’s no question that there are forces that have tried to undermine public health, forces that tried to undermine science. And in the book, I’m very clear that I do realize there are outside forces that have had mal intent, that they have not acted in good faith and they have tried to undermine public health and science, but that’s not what the book is about. I say that is there, I recognize it’s there, but I wanted to write about public health from within public health. It would be shortsighted of us not to realize that we are contributing to how public perceives us. In many respects, I feel like we should have the agency and the confidence to say, well, there are things that we are doing that we should look at. And now, after the acute phase of the pandemic, is the time to look at that.

I was clear in my other writing that I did not write this book in 2021 or 2022 intentionally, because it was too close. But I feel like now that we’re over the acute phase of the pandemic, now is the time to ask hard questions and to say, “What should we be learning?” And I do that in the book, very much looking forward. I’m not naming names, I’m not pointing fingers. All I’m simply saying is we now have the benefit of time passing. Let us see what we should have done better so we can learn how to be better in future.

Rovner: One of the things I think that frustrated me as a journalist, as somebody who communicates to a lay audience for a living, is that public health and science in general during the pandemic seemed unable to say that yes, as we learn more, we’re going to change what we recommend. It becomes, to the public, well, they said this and now they’re saying that, so they were wrong. Does public health need to show its work more?

Galea: This is the term that I use, which is false certitude, which is that we conveyed confidence when we should not have conveyed confidence. Now, there are many reasons for that. Things were happening quickly. It was a fast-moving pandemic. Everybody was scared. And, also, our communication was mediated through social media, which was a new medium for communication of public health. And that does not leave space for the asterisk, for the caveat. And I think our mistake was not recognizing how much harm it was going to do and not being upfront about this is what we know today, but tomorrow we may know more, and we may then have to change our recommendations. And as one pauses and thinks about how should we do better, surely this is front and center to learn how to communicate by saying, “Today, based on what we know, this is what we think is best, but we reserve the right to come back tomorrow and be clear, tell you that the data have changed, hence the recommendations have changed.”

Rovner: Do you think public health has been slow to embrace things like social media? I mean, there are organizations on social media. I think one that comes to mind is the Consumer Product Safety Commission, the National Park Service. I mean that they’re very cheeky, but they get out really important information in a very quick and understandable way. Is that something that public health needs to be doing better?

Galea: Perhaps. I’m not sure I’m willing to say that public health is any worse than the National Park Service on social media. I think we are all, as a society, struggling with communicating important facts rapidly in a time of crisis. One analogy, which I use in the book, is the analogy to 9/11, meaning in 9/11, it was the first national crisis that was lived through in a time of 24/7 cable news. And as a result, there was a lot of noise on cable news that was happening that was distorting how we dealt with the event. Similarly, covid-19 was the first national crisis that was lived through the lens of social media, and we did not really know how to use it. So, at the same time as I’m labeling this as a real challenge that public health faced, I’m also trying to understand and have the compassion to realize that in public health we were struggling to learn how to do this as everybody else was.

Rovner: So let’s turn to the future. What should public health do first to try and regain some of the trust that it’s lost?

Galea: Well, I suppose first we should be having this conversation, and I’m grateful to you for having a conversation, but I actually mean that, at a large scale, I actually think that I meant my book to be a place marker. And I say in it clearly, I expect people will disagree with elements of the book, and that’s OK. And I hope that the book encourages others to write their books that talks about the things, how they see it. Because I do think that this conversation should open up space for public health to say, what are the things that we didn’t do well? What are the things that we should do better? Because from that is going to emerge a new consensus about how we should act.

If the only thing that emerges is simply this, what you and I just talked about, which is communicating with due humility, recognizing the complexity of rapidly evolving facts, and being clear with the population that things may change. If that’s the only thing that emerges, we’ve already made progress. So I think the first thing that should happen is having the conversation, opening this up, being honest that there are things that public health did that it should do better. That is going to lead us to a new consensus about how we should do better.

Rovner: And beyond the conversation, is there one thing that you wish that policymakers could do that could help public health regain its prominence and its trust? I mean, there really is no other word here.

Galea: I think the one thing that I would want to see in policy is a moving away from abolishing of the notion that we can “follow the science.” One of my least favorite things that happened during the pandemic was this notion that we could “follow the science.” Now, why do I say that? I’m a scientist! But I say that because “follow the science” implies that science leads to linear answers, to linear solutions. And that phrase, “follow the science,” became a fig leaf for policymakers, saying, “Well, the science says we should do X, therefore we’re going to do X.” That is simply false. Policymaking should rest on multiple inputs, science being one of them, but also values, but also the importance of other sectors of the economy.

And I would like us to see as a society being honest about that, that policymaking shouldn’t take science into account centrally. I agree with that. As I said, it’s my bread and butter, it’s what I do. But to pretend that science has the answer is simply wrong. We elect people in elected positions, and there are people who are appointed in decision-making positions in other circumstances. It is their job to weigh all the inputs, science being one of those inputs.

Rovner: Well, Dr. Galea, thank you so much. I will do my part to keep the conversation going. I’m sure you will do yours as well.

Galea: I will. And thank you for doing the part you’re doing.

Rovner: OK. We are 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Shefali, why don’t you go first this week?

Luthra: Sure. My story is from Stat by Nicholas Florko. The headline is “Medical Marijuana Companies Are Using Pharma’s Sales Tactics With Little of the Same Scrutiny.” And I think this is such a smart investigation, and I’m so grateful that Nicholas wrote it. It really gets into the fact that medical marijuana is a tremendous industry now, right? It’s not just in the Colorados or the Californias or Massachusetts that you think of. It’s all over the country and it’s a huge business. And because it’s so new, it hasn’t gotten the same scrutiny in terms of how it markets its products to consumers, the relationship it has with providers, et cetera. I think this is just a really important topic, and it’s something that we should all be paying attention to as the industry continues to grow in the coming years.

Rovner: Indeed. Victoria?

Knight: Yeah. So my extra credit this week is a Politico story by Megan Messerly and Robert King titled “Georgia Offered Medicaid With a Work Requirement. Few Have Signed Up.” And so it’s talking about just the rollout of Georgia implementing a work requirement for their Medicaid program, which they did expand Medicaid, but they included a work requirement. So I thought this was just really stunning. It said through the first four months, only 1,800 people have enrolled when the governor, Brian Kemp, expected 31,000 people to sign up.

Rovner: Contrast that with North Carolina, which expanded Medicaid without the work requirement and got, like, 200,000 people to sign up.

Knight: Yeah. So that’s just a stunning number. And they’re talking about in the story there. They’re not sure why all the reasons are, but part of it is that there is a lot of paperwork involved. And so I think it was just a really interesting example. Obviously, we have seen work requirements play out before, but we haven’t seen it in a while. And so it’s interesting to see how difficult it can be for people to access Medicaid if this is put in place. And I also think it’s important to remind people that last year, in 2023, during the debt ceiling debate, Republicans did for a while talk about wanting to implement work requirements in Medicaid again. And so, if this was something that they put into place, it would mean probably a lot of people would drop off the rolls. So it’s an idea that resurfaces. So just important to remember that.

Rovner: Indeed. Lauren.

Weber: I was obsessed with Greg Jaffe story from The Washington Post titled “Can the Exhausted, Angry People of Ottawa County Learn to Live Together?” And it’s this incredible portrait of this Michigan county where the county public health officer, Adeline Hambley, has come under tremendous pressure and threat from the conservative county board. And this is a story we have seen play out in different iterations all around the country in the wake of covid. It’s the “we don’t believe in masks, we don’t believe in shutdowns” versus the county public health folks who are trying to follow the science and how does that play out at a people level, which Greg just does a fantastic way of showing. And it’s interesting, the board was so fed up with her and making such political statements that they offered her $4 million to quit. Now this fell apart because the county doesn’t seem to have the money that would affect them, et cetera.

But it just goes to show how deep the divisions are between what used to be a very non-politicized, normal government job of being a public health officer who keeps your water safe and tries to keep you from catching bad diseases at restaurants, to the post-covid era, where [they’re] just absolutely vilified and hated, really, it seems in some of these comments in the story — so much so that they would be paid this much money to quit. So I think this speaks a lot to the tension that we see in America around public health today, and I really recommend everybody to give it a read.

Rovner: Yeah, it’s a really remarkable story. Well, my extra credit this week is from our podcast pal Alice [Miranda] Ollstein, along with her colleagues Jessica Piper and Madison Fernandez at Politico. It’s called Why Democrats Can’t Rely on Abortion Ballot Initiatives to Help Them Win.” And it’s a warning for Democrats not to get too smug about the popularity and success of abortion rights ballot measures around the country. They dug into the numbers and found that in many of those states, the very same voters who supported the abortion rights measures also turned around and voted for Republican candidates. As usual, in politics, things are rarely as simple as they seem.

All right, that is our show for this first week of 2024. 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 technical guru, Francis Ying, and our editor, my fellow Wolverine, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Shefali, where are you these days?

Luthra: I am @shefalil on X and Blue Sky, and then on Threads, I’m @shefali.luthra.

Rovner: Victoria.

Knight: I’m @victoriaregisk on X and Threads.

Luthra: Lauren.

Weber: And then I’m @LaurenWeberHP on X and clearly still need to work on my social media game.

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

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In this episode of “An Arm and a Leg,” Dan Weissmann goes toe-to-toe with Scott Purcell, CEO of ACA International, a trade association for the collection industry, on the effects these lawsuits have on patients.

With help from The Baltimore Banner and Scripps News, Weissmann pulls back the curtain on hospital bill lawsuits in three states — Maryland, Wisconsin, and New York — and discovers some good news for a change.

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Transcript: ‘An Arm and a Leg’: When Hospitals Sue Patients (Part 2)

Note: “An Arm and a Leg” uses speech-recognition software to generate transcripts, which may contain errors. Please use the transcript as a tool but check the corresponding audio before quoting the podcast.

Dan: Hey there – So, this is part two of a two-part story. If you missed part one, or just want a refresher, here’s three quick things: 

First: Some hospitals – definitely not all – sue a LOT of patients over unpaid bills. Hundreds or even thousands every year. 

Second: There’s very little money in it for these hospitals. When reporters and researchers add up the total amounts they’re suing for, it looks tiny compared to, say, their annual surplus. Or what they pay executives. Tiny.

Third: There’s data showing a LOT of the people being sued are … pretty hard up already. 

That a lot of them would qualify for charity care under the hospitals’ own financial-assistance policies.

In fact, as we reported last time, a guy named Nick McLaughlin, who spent a decade working for a medical-bill collections agency… now runs a business telling hospitals they’d be better off – financially – writing these bills off through charity care or financial assistance programs. 

And I should point out: Nick’s not a do-good crusader. He has started a business, to help hospitals do this. And he’s staked his family’s financial future on it.

Nick: I had a good but challenging conversation with my wife. And she said, hey, so is the reason we’re not doing this full time because we’re scared the money’s not gonna come in? And I said, well as the sole provider of a family of five that’s kind of a big deal. She said, yeah, I think we should do it.

Dan: And at the end of our last episode, I asked Nick: So, why would some hospitals make the decision to sue people, if there’s no money in it? What’s behind that decision:

Nick: It’s really, I would say, philosophically based.

Dan: So, in this episode, we’ll do two things: One, we’ll try to get a peek at that philosophy – inside the heads of the people who might hold it.

And TWO: We’re gonna share some hard data about what’s going on with these lawsuits in three states. We partnered with two awesome news organizations to get this data. 

And I’m gonna tell you: we found what really looks like some good news.

And the whole inquiry really drove home ways we can help ourselves, and each other. 

Here we go.

With Scripps News and the Baltimore Banner, this is An Arm and a Leg – a show about why health care costs so freaking much, and what we can may be do about it. 

I’m Dan Weissmann. I’m a reporter, and I like a challenge. So our job on this show is to take one of the most enraging, terrifying, depressing parts of American life and bring you something entertaining, empowering, and useful.

So, let’s talk about that philosophy. You could call it a form of… not thinking too hard. Let’s start with a witness. 

These days, Ruth Lande works for a nonprofit you may have heard of – RIP Medical Debt – to get hospital bills forgiven.

But WE talked with her because she spent more than 25 years working in hospital billing, most of it at Memorial Sloan-Kettering Cancer Center. And by the way, she loved it.

Ruth Landé: In general, I think it’s good if a job has three things. It’s for a good mission. Two, it should be hard. It should be complicated so it engages your brain every day. And third, it should be with really good colleagues. And I got to tell you, working revenue cycle satisfied all three of those for me. 

Dan: And of course, during her quarter-century in the business, the question of whether or not to file lawsuits over hospital bills did come up. 

When she got a promotion. 

In her earlier role, she’d run one part of the billing department, where they never sued. Now she was taking over another part of the billing department, a bigger one, where sometimes they did. 

She says her new colleagues were aware that in her earlier position, she’d taken a no-lawsuits approach.

Ruth Landé: There was an assumption, oh yeah, Ruth won’t allow that. 

Dan: But, she told me, she didn’t want to be in conflict with her new colleagues from Day One. 

Ruth Landé: And so I said, well, I’m not going to just ban it, but you know, bring me cases. If you believe that we should be suing a person, then just bring me the case so I can review it. And they never brought a case to me ever. 

Dan: Never ever. She thinks those colleagues maybe hadn’t stopped to look at who they were suing.

Ruth Landé: When you really examine closely you see the harm. I They would have probably imagined that they’re only suing some really rich people sitting up in a mansion somewhere, not bothering to pay their bills.

You might imagine: It would be interesting to talk with someone who thinks this way – really talk with them, push them on their point of view.

And that did happen. Kind of. 

It was honestly one of the most confusing conversations I’ve ever had. It was with this guy. 

Scott Purcell: My name is Scott Purcell. I’m the CEO of ACA International.

Dan: That’s the industry association for folks in the bill-collection business. Scott was super-accommodating – got on Zoom with me within a day of my first email to him. So quickly that it wasn’t till we got on that I realized we hadn’t set a length. 

Dan: How long do I actually have you for?

Scott Purcell: How long do you need us for?

Dan: Uh, I like to talk to people for a long time, but we start with a half an hour and maybe…

Scott Purcell: um, bum bum bum. I just need to change one meeting. 

Dan: We talked for more than an hour. 

The first half-hour was one kind of frustrating. 

I’d describe our findings and findings from other people’s reports — for instance, how little money hospitals seem to gain from these lawsuits — and ask if he had data to help understand what we’re seeing, and he kept saying, effectively: 

Hey, let’s not jump to policy conclusions. How would a new policy on debt collection affect a medical office with just three doctors? 

Scott Purcell: And I would say that three person doctor office is different from one of the top 10 nonprofit health care system. Their economics are completely different. And yet we’re talking about policy positions. that impact both

Dan: And then, in retrospect I’ve figured out a spot where we really, really lost each other. I was talking about one observer’s take on why these lawsuits don’t bring in much money:

Dan: A lot of the people that end up as your defendants are effectively indigent. Um, you know, they don’t have a lot of income. They may not have W2 employment that you could garnish. They don’t have other assets you can take. So, the amount that you get is not, not what you might expect from looking at the number of cases and the number of judgments. So that was another…

Scott Purcell: If I could stop you there, I’d love to see that data. Do you know that it takes a lot of money to file a lawsuit? I can’t think. And so my lived experience, I cannot think of one instance where either the hospital or the collection agency or the attorney would choose to sue an indigent person because if they are going to have a low probability of being able to repay that that over time, why would you invest? 

Dan: What I didn’t realize then, was: when I said some people were “effectively indigent,” Scott Purcell had latched onto the word “indigent” and had a very specific image in his mind, of absolute destitution. From that point forward, anything I would say about people being sued who were hard up, who qualified for charity care, who really couldn’t pay – was gonna run through this filter. 

And: Any example I’d bring up of someone being sued who got put in an extremely tough position… was just gonna sound to him like a novel anecdote.

A half-hour in, I got pretty direct with Scott, so I asked:

Dan: How did this happen? How did it happen that we, like, got to the point where so many people are being sued over debts they can’t pay? What do you know about that?

And this is where things got really confusing to me. Because here’s how Scott responded:

Scott Purcell: Well, if you just sued somebody who can’t pay, they’re not going to pay you. So, they’re not out any money. So you made a bad business decision, but truly Dan, what is the harm they’re experiencing? The fact that they got sued and they can’t pay?

Dan: I didn’t see that coming – the idea that being sued could be “harmless”?. Here’s what I said:

My gosh. Well, I can tell you that, you know, people, by the time they’ve been sued, they’ve been getting tons of collections calls, their credit may have suffered, and they have a judgment against them that says like any money that shows up in their bank account can be seized or that, you know, the next time they get a job, their wages can be garnished. That’s pretty significant harm. 

I described to Scott the story of Liz Jurado, a woman on Long Island who says she found out, years after the fact, that she had been sued over a bill relating to the birth of one of her kids. A bill she says she thought insurance had paid. Her husband was the main breadwinner, until he got laid off. Liz took a job working for DoorDash to support the family – her first W2 paycheck – and she says that’s how she found out about the lawsuit. Because once she starts the job, she starts getting letters, saying her wages are going to be garnished. And she’s like:

Liz Jurado: What is this? Where did it come from? How could they not tell me about it until now?  I get a job and three months later, you’re coming after me. I mean, this is my family’s bread and butter.  This is horrible.

Dan: I said to Scott: That seems bad, right?

Dan: So I’m, I’m, I’m trying to give you the opportunity to respond to that point that lots of people make that. If you get sued over a debt you can’t pay, there’s harm. That’s, that’s a lot of people’s positions, and I find it fairly persuasive. How do you respond to that? 

Scott Purcell: You and I were using a hypothetical. You said somebody got sued who’s indigent. Has no money.

Dan: Do you think that doesn’t happen?

Scott Purcell: I don’t understand the business case as to why that would. 

Dan: But, like, do you think it doesn’t happen because, like, do you think the reports that show that it happens a lot are wrong? I mean, I talked to a couple, a couple months ago who got sued over a debt. I mean, their story was like, they got hit with a bunch of medical problems.

I described to him the story of Casey and Ron Gasior, who we met in our last episode. The bills for those medical adventures threw their finances completely out of whack.

Casey: We would dig little bit out of our hole, and then we’d go right back down. 

Dan: … until they were in danger of losing their house. They filed for chapter 13 bankruptcy – wrapping everything they owed into a five year payment plan. They’d just about made it through, when they got a letter from a law firm earlier this year: They were being sued over a medical bill, that had arrived just after their bankruptcy started. I was getting a little worked up. 

Dan: So, these are not hypothetical, and these are not, like, you know, these stories are just entirely consistent with the data that, that gets collected. So, when you ask me, like, what’s the harm? I want to give you this opportunity to say, like, you sure that’s your position?

Scott Purcell: So, first of all, that was on a different, that was a different question. I made an assumption of that story that they were indigent now and would be indigent – I was saying, I don’t know why that decision got made if indeed that person, um, is indigent, why a particular, um, provider has whatever parameters they’ve set for their lawsuit program. I can’t speak to the business decisions they’re making. I can speak to, societally, what do we expect people to pay and not pay? 

Dan: With the case of the couple in Wisconsin, if they couldn’t pay ever, if their chapter 13 hadn’t worked out, and they’d lost their house, and they’d lost their jobs, and they couldn’t pay ever, are you saying they wouldn’t be harmed?

Scott Purcell: I’m saying the answer lies in taking those stories to the table. And let’s take a look at what are the other policy changes that should be made in order to get better outcomes. So, in the situation you did outline, I am sure that individual actually went through emotional stress. But there’re safeguards throughout. 

Dan: So you’re saying you view this as a kind of exceptional case and that generally there are, from what you know, guidelines and guardrails, as you say, to prevent this sort of thing from happening.

Scott Purcell: It’s the thing I don’t have data to answer it. 

Dan: Yeah, it’s — I mean, I just need to say: It’s striking, um, that you asked — you’re, yeah, like: Where’s, where’s the harm?

Scott Purcell: I made an assumption of that story that they were indigent now and would be indigent–

Dan: Well, I guess I just don’t understand, I, I don’t really quite understand the difference. Can you explain the distinction between someone being indigent right now, being indigent forever, I don’t really get the distinction at all. And I don’t know in which case, in which case there is harm, in which case there isn’t in your view.

Scott Purcell: So, um, I wasn’t being flippant. I was taking a very extreme… um, I’m in D.C. I see homeless people now. So when I heard you say indigent, I’m thinking somebody who’s living under a bridge. They deserve to be treated with dignity and respect. I was thinking that level of indigency. You’re talking about, I think, the, the working class, and people beyond that. And up to the higher end scale is your question. And for that, my question or my answer is back to there are safeguards that should be occurring. And if those safeguards don’t occur, harm does happen. And we collectively need to look at why there are gaps in those safeguards.

Dan: So in retrospect – knowing how Scott Purcell took that word indigent – I’m a little less mystified. But the conversation still seems really… striking to me.

For one thing, there’s the idea — even if it’s not a conscious philosophy  — that some people are beyond hope, so they’re beyond harm. So morally, it wouldn’t matter if, say, you sued them.

But the other thing that strikes me is the difficulty Scott Purcell had understanding – believing – that people being really harmed is something that happens at scale. That last thing he said: “There are safeguards that should be occurring, and IF those safeguards don’t occur, harm does happen.”

That word “IF” seems to be doing a lot of work there. 

Beyond the mountains of data that folks have compiled – showing that people get sued who qualify for charity care, and that people who get sued over medical bills tend to live in neighborhoods where poverty is high – there’s the finding that’s practically a cliche: 

About four out of ten Americans don’t have enough money on hand to cover a 400 hundred dollar emergency expense. Maybe I should have explained that to Scott Purcell. 

But I just didn’t think I’d need to. He’s sitting atop a whole industry that NEEDS to know, basically, how much money people have. Since we talked, I’ve seen a report for folks in his industry – third-party collections – that goes into a lot of detail on that topic. 

Of course, third-party collections agencies are for-profit businesses. And at least for some of them, lawsuits like these are part of the business. 

So, I guess I’m starting to understand – maybe belatedly – how hard it is to get some people to reconsider business as usual. Is business as usual a philosophy?

But sometimes business as usual does change. In fact, I’m about to share some much more cheerful news with you. It’s what our partners found when we went looking for details on these hospital bill lawsuits in three states. 

Because the big surprise was in what we DIDN’T find.

That’s coming right up. 

This episode is produced in partnership with KFF Health News. That’s a nonprofit newsroom covering health care in America. Their incredible journalists win all kinds of awards every year. I’m so glad to get to work with them. 

This investigation builds directly on reporting by KFF reporters like Jay Hancock, Noam Levey and Jordan Rau. Respect. 

OK, so this whole inquiry — into why some hospitals sue so many patients who could just get charity care — started a couple of years ago. 

That’s when I spotted what looked like a clue – in a big report done by National Nurses United. It looked at 145 thousand hospital lawsuits against patients in Maryland over a ten-year period.

And in addition to documenting how little money hospitals were getting from these suits — compared to the million-dollar salaries they paid a lot of executives — 

This report also noted– just kind of by-the-way, on page 18 of a 68-page report – that a relatively small number of attorneys were filing most of these lawsuits.

Just five attorneys filed almost two-thirds of the cases.

And just one attorney filed more than 40,000 cases. 

I was like, huh! Maybe that’s a clue. 

It seems like hospitals don’t get a lot of benefit from these lawsuits. But maybe we’re looking at someone who does. We should find out more. 

Starting with the names of those lawyers, which weren’t in the report.

And I was gonna want a big update on Maryland.

That report was part of a big advocacy campaign – which really worked. 

In 2021, Maryland enacted a new law saying hospitals couldn’t sue anybody without checking to see if they qualified for free care.

Which in retrospect, may seem like an obvious requirement. Here’s Malcolm Heflin, one of the organizers who worked on the campaign.

Malcolm Heflin: It’s like reading the postscript in a Dickens novel almost. It’d be like, “Oh yeah. Hey, look, now we can’t chain children to factory machines.” Like what? Wait, what? That was legal before? 

Dan: Anyway, if that report was the “before” picture, what would “after” look like? I was gonna need help. And I got some.

Ryan Little: my name is Ryan Little and I am the data editor at the Baltimore Banner.

Dan: The Banner is a new nonprofit daily newspaper – without the paper. Data reporting is a big specialty, and Ryan is the big specialist. Pulling a LOT of Maryland courts data was already on his to-do list.

Ryan Little: And so I said, maybe there’s a way that we can make a partnership happen. And then many months later, you’ve probably regretted that, but we’ve had a good time doing it. Anyways…

Dan: No way. Are you kidding me?

Ryan’s amazing. I am so lucky to get to work with him. 

But I wanted to know about more than just Maryland. And I got lucky there too. 

Maryland’s not the only state where advocates compiled a bunch of court data to push for change. You might remember Elisabeth Benjamin in New York from our last episode. 

She’s the one who pointed out how little money is involved in these suits – for hospitals she has looked at.

Elisabeth Benjamin: They’re suing people for pennies. right. The average law suits maybe 1900 bucks. So they’re suing them for chump change, but that $1,900 is like life ruining for the patient.

Dan: She knew that because she had pulled more than 50 thousand hospital-bill lawsuits from across the state. She used that data in a series of reports that got new laws passed – like one banning wage garnishment to pay medical debts. 

And she shared a giant spreadsheet with me, which included the names of attorneys in 40 thousand cases.

And guess what? Just three law firms handled the majority of those cases. So now we knew: This wasn’t just a Maryland thing.

But we were gonna want to look somewhere else too. Someplace where no new laws had been passed. Someplace that was still a “before” picture. Someplace like Wisconsin.

I’d been getting reports from a public-interest lawyer there named Bobby Peterson. He’d been publishing some data about lawsuits, but hadn’t gotten laws passed. And he also wasn’t able to share data. I was gonna need MORE help. 

Rosie Cima: My name is Rosie Cima and I manage a data reporting team at Scripps News. I also report for them. 

Dan: YES! More data help. Scripps News came aboard as a partner, and Rosie started looking for the data we’d need in Wisconsin.

And at this point, it may be getting clearer why it has taken us more than a year to bring this story to you. Let’s just recap for a second all the moving parts we’ve got in play here:

We’ve got Ryan, pulling cases in Maryland, Rosie doing the same in Wisconsin, and me with some New York cases.

We’re looking to see what the “after” picture looks like in Maryland and New York, and we’re looking at the role of a few lawyers.

And this is where I admit: that initial hypothesis? That the lawyers were driving these lawsuits, sweet-talking hospitals to drum up business?

It didn’t really pan out. As far as I can tell, after talking with a bunch of people and looking at a bunch of reports, it doesn’t seem to work that way. 

A lot of the time, anyway, it seems like the lawyers are often freelancers. They get hired by the collection agencies.

Who get their marching orders from the hospital revenue office.

But I’m so glad we went looking, because of what we did find. 

Or, you could say, what we didn’t.

In Maryland, Ryan spent months and months and months collecting hundreds of thousands of cases, then weeks and weeks crunching the numbers. And then… 

Ryan Little: On Wednesday, September 6th, I sent this email. I find this hard to believe. But it may be that there were zero medical debt lawsuits filed by hospitals against individuals in 2022 and 2023. 

Dan: He found it hard to believe – like, it must be wrong – so he went back to try to find his mistake. That took almost a week.

Ryan Little: On Monday, September 11th, I emailed, Hey Dan, news that hospital debt collection lawsuits had ended in Maryland was wrong. It looks like the Maryland Judiciary is somehow suppressing them in case search. Either intentionally or not, I’m rewriting the code to account for this.

Dan: He thought the Maryland court system was HIDING these cases. Not only did he rewrite the code, he went to the courthouse to go hunt for whatever was missing. 

It took him another week. And then I got one more email.

Ryan Little: So on September 18th, I said, Maryland hospitals are dot, dot, dot. Basically not suing anyone for medical debt anymore. 

Dan: Basically not suing anyone for medical debt this year. WOW. I mean, we had expected a significant drop– if only because Maryland had passed that 2021 law, which required hospitals to see if people were eligible for charity care before suing them. 

But zero was a much bigger drop than we’d expected. 

Next stop, New York. A few months ago, we looked at those three law firms – the ones that handled the majority of hospital-bill cases there. 

And as far as we could tell, two of them were just not doing any work for hospitals at all anymore.

But OK, again: We’d expected an “after” picture in both these states. What about Wisconsin?

Well, for one thing, it turned out to be TOUGH. 

Rosie Cima: When we took this on the first time, it definitely seemed like it’d be a lot easier than it ended up being. 

Dan: You can pull some case data from the web, but there’s a problem: Once a case has been dismissed, it gets taken off that website after a few years. 

Rosie Cima: So all the data that we had from before 2020 was missing some unknown number of cases

We can laugh about it now, but that sucked. We did find some guys who had data on older cases socked away. From them, we got the full caseloads for two lawyers we’d heard did a lot of medical-bill lawsuits.

Rosie Cima: We found more than 8000 cases in one year, um, for two lawyers, 

Dan: That was 2019. Pre-pandemic. 

Rosie Cima: And in 2022, There were fewer than 1400 for both of them.

Dan: In other words, these two lawyers were doing less than a quarter as much medical-bill business as they’d been doing three years earlier.

And Rosie pulled numbers year by year, client by client, which was super-revealing. 

Because for both of them, many of their biggest clients – hospitals and medical practices for whom they had been filing hundreds of cases a year – weren’t filing any cases.

Which wasn’t totally conclusive. We knew these lawyers were getting less work…

Rosie Cima: The thing that we didn’t know was, like, whether, Hospital A had stopped suing, or whether they just stopped hiring this lawyer.

Dan: Right. So Rosie went back to the public data website to see whether those hospitals A, B, C and so on were suing. And for the most part, they weren’t — at least not like they used to. 

Rosie Cima: Yeah, we now know that those cases weren’t going to a different lawyer. Right? They’re just not, they’re just not being filed.

Dan: Just not. Being filed. And it wasn’t just the hospitals that had been using these two lawyers that had fallen away. Other hospitals that had been suing tons of patients had cut way back. 

From more than a thousand in 2019 to a few dozen, or less than a dozen. Or one. Or zero. 

One hospital system sued more than 47 hundred people in 2019. In 2023 so far, they’ve sued one.

And remember, because older cases get wiped from the web, there’s some unknown number of cases from 2019 we aren’t seeing. The decline is probably bigger than what we see.

So, one thing to say is: We don’t know WHY this is happening. In any of these states. Our colleagues at the Baltimore Banner called every hospital in Maryland to ask about these changes, and got a bunch of no-comment. We emailed dozens of hospitals in Wisconsin and basically got the same answer.

So we’re left with some guessing – and here are some of our best guesses: 

Those new laws in New York and Maryland didn’t outlaw lawsuits… but the Maryland law made them more difficult, and the New York laws made it harder to collect. 

And the campaigns that led to those laws brought a LOT of negative attention to hospitals that filed a lot of lawsuits. So one way or another, it seems like a lot of hospitals decided it wasn’t worth it.

And in Wisconsin? Laws didn’t change, but the reports that the lawyer Bobby Peterson put out there did get some attention locally. 

We know in Wisconsin, lawsuits halted altogether for a while when the pandemic started. Maybe hospitals noticed that they weren’t exactly losing a ton of money when that happened?

Here’s one last data point from Rosie. She looked closely at the cases she had for those two lawyers from 2019. The ones where the hospital was awarded a judgment.

Rosie Cima: We found that the majority of those awards were never fulfilled, like, I, I feel like that’s important, a judge said, yes, you defendant owe this case. company, the plaintiff, this much money and in a lot of cases, the plaintiff hasn’t paid out. And it’s been years.

Dan: Which I don’t think is evidence that “Wow, these folks were really good at dodging payment!” No, because in a lot of these old cases, the judge gave an OK to garnish these folks’ wages: To take money directly from their paycheck.

So if these debts haven’t been paid, years later – and remember, these are often amounts of a thousand dollars or less – it seems like these folks may be earning so little that garnishing their wages for years doesn’t get you much. 

So, to start wrapping up: There’s a TON we don’t know. For one thing, there’s 47 other states we haven’t looked at. And we don’t know if hospitals in these three states will start suing again, when they think nobody’s looking.

But here’s something I do know: A surprising number of those other states have been passing new laws and regulations in the last couple years, to prevent hospitals from filing so many lawsuits against folks who qualify for charity care: 

Illinois, Arizona, Colorado, Minnesota, Washington, Oregon. I’m probably missing some. 

But here’s the single biggest thing I’m taking away from this whole adventure: A LOT more people qualify for charity care– free or discounted care from the hospital– than we think.

And we can help ourselves and each other, just by spreading the word.

I called Casey Gasior in Wisconsin a couple weeks ago. It wasn’t a great day for her.

Casey: Everybody in my house is sick and I just tested positive for covid. And now we’re going to lose work time.

Dan: Right.

Casey: I tell you, it never ends.

Dan: I was calling because I knew: Casey and her husband Ron have had more medical adventures this year. More knee trouble for him, emergency surgery for her, time away from work and lost income for both of them. And thousands of dollars of new medical bills. 

I said to her: It seems like maybe you and Ron might qualify to have some of those bills forgiven through charity care.

Casey: I think my, my husband makes too much. 

And I was like, well, maybe. But as we learned from Nick McLaughlin in our last episode, almost 60 percent of Americans qualify for charity care at a bunch of hospitals. 

And the nonprofit Dollar For has created a database of the charity care policies of almost every hospital in the country – and they’ve built it into their website. 

So you can type in a few details – where you were treated, how much you make – and it’ll tell you whether you’re likely to qualify for help.

Dan: So, I’m looking at their website right now.

And would it be okay with you to just kind of walk through kind of what they’re asking you, what they, um…

Casey: Yeah, sure.

Dan: Questions included: Where’d you get seen, and when?

Casey: Um, my surgery was July 24th.

Dan: Casey and I went line by line, filling out the form. I had her hunting for tax returns, and other documents

Casey: Hey, Ron. Can you send me a, um, a pay stub? Can you send me a picture of it? Like, now?

Dan: Okay. Alright, I’m going to add those up. There we go.

And yeah, so Dollar For thinks that you would qualify, 

Casey: Wow. That surprises me. 

Dan: This is good.

Casey: This is really…

Dan: Yeah. I’m really glad that we took this step.

Casey: Yeah, me too, because I was kind of, I didn’t know where to go and like, it, it seems so weird asking for charity.

Dan: But Casey was ready to take the next step.

Casey: Now this application that I’m filling out now do I have to do one for myself and one for Ron. 

Dan: Yes. Yeah. 

Casey: Okay, I’m going to work on this

Dan: Okay. Fantastic.

And this is a thing that we can do for ourselves, and each other. Spread the word: The majority of people qualify for at least some charity care – at least partially wiping out your bill – at a LOT of hospitals. 

The Dollar For website is set up to tell you if you’re likely to qualify, and to help you apply. They’ve also got actual human beings on staff to help if you get stuck.

Their website is Dollar For – that’s Dollar F-O-R dot org. Dollar F-O-R dot org. 

And that is our story. We never got all the way to the bottom of the question of WHY these bulk lawsuits happened – or why they seem to have stopped in some places – but we did get a peek into the process. 

And we learned some things that are heartening – a lot fewer lawsuits in these three states!

I’ve learned a lot more, along the way – there’ll be follow-ups. 

This has been a HUGE project for our little outfit. We got a ton of help from our partners, and we put a TON of resources into it: Travel to Wisconsin and Michigan, MONTHS of phone calls, 1600 bucks to get court records. 

We’ve been able to do that because you’ve been supporting us– giving us the resources to do the job. And this is the absolute best time to pitch in: 

Every dollar you give is matched. A few generous Arm and a Leg listeners have put up more than 10 thousand dollars in matching funds ON TOP of what the Institute for Nonprofit News does through their NewsMatch program – and I want to max it out. 

The place to go is Arm and a Leg Show, dot org, slash support. And there’s a link in the show notes – pretty much anywhere you’re listening to this. 

We’ll be back next week with a quick little coda to this story.

Meanwhile, thank you so much for helping us make this show. I’m gonna give that address one more time: Arm and a Leg show dot com, slash support. 

I’ll catch you next week.

Till then, take care of yourself.

This episode of An Arm and a Leg was produced by me, Dan Weissmann, with Emily Pisacreta and Bella Czakowski. 

In partnership with Scripps News, thanks to Rosie Chima, Amber Strong, Claire Malloy, Jacqueline Baylon and Zach Toombs and the Baltimore Banner, thanks to Ryan Little, Meredith Cohn, Brenna Smith and Kimi Yoshino and the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York, with thanks to Jane Sasseen.

Our work on this story is supported by the Fund for Investigative Journalism, and edited by Ellen Weiss. 

Big thanks also to Jared Walker, Bobby Peterson, Luke Messac, Jeff Bloom, Emily Stuart, Berneta Hayes, Matt Szaflarski, Amanda Dunkler, and Marceline White! Plus Barry and Jo from Court Data Techologies, in Wisconsin.

Gabrielle Healy is An Arm and a Leg’s managing editor for audience – she edits the First Aid Kit newsletter.

Sarah Ballema is our Operations Manager. Bea Bosco is our Consulting Director of Operations.

An Arm and a Leg is produced in partnership with KFF Health News. 

That’s a national newsroom producing in-depth journalism about health care in America, and a core program at KFF — an independent source of health policy research, polling, and journalism. 

You can learn more about KFF Health News at arm and a leg show dot com, slash KFF. 

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Thanks to the INSTITUTE FOR NONPROFIT NEWS for serving as our fiscal sponsor, allowing us to accept tax-exempt donations. You can learn more about INN at I-N-N dot org. 

And thanks to everybody who supports this show financially. 

If you haven’t yet, we’d love for you to pitch in to join us. Again, the place for that is arm and a leg show dot com, slash support.

And now, time for one of my favorite parts: Shouting out some of the folks who have made donations since our last episode. Thanks this time to…

[DAN READS NAMES]

Thank you so much!

“An Arm and a Leg” is a co-production of KFF Health News and Public Road Productions.

This episode was produced in partnership with Scripps News, The Baltimore Banner, and the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York.

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The Host

Julie Rovner
KFF Health News

@jrovner

Read Julie's stories.

Julie Rovner is chief Washington correspondent and host of KFF Health News’ 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.

Even without covid dominating the headlines, 2023 was a busy year for health policy. The ever-rising cost of health care remained an issue plaguing patients and policymakers alike, while millions of Americans lost insurance coverage as states redetermined eligibility for their Medicaid programs in the wake of the public health emergency.

Meanwhile, women experiencing pregnancy complications continue to get caught up in the ongoing abortion debate, with both women and their doctors potentially facing prison time in some cases.

This week’s panelists are Julie Rovner of KFF Health News, Rachel Cohrs of Stat, Sandhya Raman of CQ Roll Call, and Joanne Kenen of Johns Hopkins University and Politico Magazine.

Panelists

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Among the takeaways from this week’s episode:

• As the next election year fast approaches, the Biden administration is touting how much it has accomplished in health care. Whether the voting public is paying attention is a different story. Affordable Care Act enrollment has reached record levels due in part to expanded financial help available to pay premiums, and the administration is also pointing to its enforcement efforts to rein in high drug prices.
• The federal government is adding staff to go after “corporate greed” in health care, targeting in particular the fast-growing role of private equity. The complicated, opaque, and evolving nature of corporate ownership in the nation’s health system makes legislation and regulation a challenge. But increased interest and oversight could lead to a better understanding of the problems of and, eventually, remedies for a profit-focused system of health care.
• Concluding a year that saw many low-income Americans lose insurance coverage as states reviewed eligibility for everyone in the Medicaid program, there’s no shortage of access issues left to tackle. The Biden administration is urging states to take action to help millions of children regain coverage that was stripped from them.
• Also, many patients are all too familiar with the challenges of obtaining insurance approval for care. There is support in Congress to scrutinize and rein in the use of algorithms to deny care to Medicare Advantage patients based on broad comparisons rather than individual patient circumstances.
• And in abortion news, some conservative states are trying to block efforts to put abortion on the ballot next year — a tactic some used in the past against Medicaid expansion.
• This week in health misinformation is an ad from Florida’s All Family Pharmacy touting the benefits of ivermectin for treating covid-19. (Rigorous scientific studies have found that the antibacterial drug does not work against covid and should not be used for that purpose.)

Also this week, Rovner interviews KFF Health News’ Jordan Rau about his joint KFF Health News-New York Times series “Dying Broke.”

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

Julie Rovner: Business Insider’s “‘I Feel Conned Into Keeping This Baby,’” by Bethany Dawson, Louise Ridley, and Sarah Posner.

Joanne Kenen: The Trace’s “Chicago Shooting Survivors, in Their Own Words,” by Justin Agrelo.

Rachel Cohrs: ProPublica’s “Doctors With Histories of Big Malpractice Settlements Work for Insurers, Deciding if They’ll Pay for Care,” by Patrick Rucker, The Capitol Forum; and David Armstrong and Doris Burke, ProPublica.

Sandhya Raman: Roll Call’s “Mississippi Community Workers Battle Maternal Mortality Crisis,” by Lauren Clason.

Also mentioned in this week’s episode:

• Stat News’ “Humana Used Algorithm in ‘Fraudulent Scheme’ to Deny Care to Medicare Advantage Patients, Lawsuit Alleges,” by Casey Ross and Bob Herman.
• USA Today’s “Cigna Denied a Lung Transplant for a Cancer Patient. Insurer Now Says That Was an Eerror.’ By Ken Alltucker.
• Politico’s “Conservatives Move to Keep Abortion off the 2024 Ballot,” by Alice Miranda Ollstein and Megan Messerly.
• The New York Times’ “Why Democracy Hasn’t Settled the Abortion Question,” by Kate Zernike.

click to open the transcript

Transcript: 2023 Is a Wrap

KFF Health News’ ‘What the Health?’Episode Title: 2023 Is a WrapEpisode Number: 327Published: Dec. 21, 2023

[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.]

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Dec. 21, at 10 a.m. As always, news happens fast and things might’ve changed by the time you hear this, so here we go.

We are joined today via video conference by Joanne Kenen of the Johns Hopkins University and Politico Magazine.

Joanne Kenen: Hi, everybody.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Good morning.

Rovner: And Rachel Cohrs of Stat News.

Rachel Cohrs: Hi.

Rovner: Later in this episode, we’ll have my interview with KFF Health News’ Jordan Rau, co-author of a super scary series done with The New York Times about long-term care. It’s called “Dying Broke.” But first, this week’s news. I thought we would try something a little bit different this week. It just happened that most of this week’s news also illustrates themes that we’ve been following throughout the year. So we get a this-week update plus a little review of the last 12 months, since this is our last podcast of the year. I want to start with the theme of, “The Biden administration has gotten a ton of things done in health, but nobody seems to have noticed.”

We learned this week that, with a month still to go, Affordable Care Act plan sign-ups are already at historic highs, topping 15 million, thanks, at least in part, to extra premium subsidies that the administration helped get past this Congress and which Congress may or may not extend next year. The administration has also managed to score some wins in the battle against high drug prices, which is something that has eluded even previous Democratic administrations. Its latest effort is the unveiling of 48 prescription drugs officially on the naughty list — that’s my phrase, not theirs — for having raised their prices by more than inflation during the last quarter of this year, and whose manufacturers may now have to pay rebates. This is something in addition to the negotiations for the high-priced drugs, right, Rachel?

Cohrs: Yeah, this was just a routine announcement about the drugs that are expected to be charged rebates and drugmakers don’t have to pay immediately; I think they’re kind of pushing that a little further down the road, as to when they’ll actually invoice those rebates. But the announcement raised a question in my mind of — certainly they want to tout that they’re enforcing the law; that’s been a big theme of this year — but it brought up a question for me as to whether the law is working to deter price hikes if these companies are all doing it anyway, so just a thought.

Rovner: It is the first year.

Cohrs: It is. This started going into effect at the end of last year, so it’s been a little over a year, but this is assessed quarterly, so the list has grown as time has gone on. But just a thought. Certainly there’s time for things to play out differently, but that’s at least what we’ve seen so far.

Rovner: They could say, which they did this week, it’s like, Look, these are drugs because they raised the prices, they’re going to have to give back some of that money. At least in theory, they’re going to have to give back some of that money.

Cohrs: In Medicare.

Rovner: Right. In Medicare. Some of this is still in court though, right?

Cohrs: Yes. So I think at any moment, I think this has been a theme of this year and will be carrying into next year, that there are several lawsuits filed by drugmakers, by trade associations, that just have not been resolved yet, and I think some of the cases are close to being fully briefed. So we may see kind of initial court rulings as to whether the law as a whole is constitutional. It is worth noting that most of those lawsuits are solely challenging the negotiation piece of the law and not the inflation rebates, but this could fall apart at any moment. There could be a stay, and I expect that the first court ruling is not going to be the last. There’s going to be a long appeals process. Who knows how long it’s going to take, how high it will go, but I think there is just a lot of uncertainty around the law as a whole.

Rovner: So the administration gets to stand there and say, “We did something about drug prices,” and the drug companies get to stand there and say, “Not yet you didn’t.”

Cohrs: Exactly. Yes, and they can both be correct.

Rovner: That’s basically where we are.

Cohrs: Yes.

Rovner: That’s right. Well, meanwhile, in other news from this week and from this year, the Federal Trade Commission, the Department of Justice, and the Department of Health and Human Services are all adding staff to go after what Biden officials call “corporate greed” — that is their words — in health care. Apparently these new staffers are going to focus on private equity ownership of health care providers, something we have talked about a lot and so-called roll-ups, which we haven’t talked about as much. Somebody explain what a roll-up is please.

Kenen: Julie, why don’t you?

Rovner: OK. I guess I’m going to explain what a roll-up is. I finally learned what a roll-up is. When companies merge and they make a really big company, then the Federal Trade Commission gets to say, “Mmm, you may be too big, and that’s going to hurt trade.” What a roll-up is is when a big company goes and buys a bunch of little companies, so each one doesn’t make it too big, but together they become this enormous — either a hospital system or a nursing home system or something that, again, is not necessarily going to make free trade and price limits by trade happen. So this is something that we have been seeing all year. Can the government really do anything about this? This also feels like sort of a lot of, in theory, they can do these things and in practice it’s really hard.

Cohrs: I feel like what we’ve seen in this space — I think my colleague Brittany wrote about kind of this move — is that the corporate structures around these entities are so complicated. Is it going to discourage companies from doing anything by hiring a couple people? Probably not. But I think the people power behind understanding how these structures work can lay the groundwork for future steps on understanding the landscape, understanding the tactics, and what we see, at least on the congressional side, is that a lot of times Congress is working 10 years behind some of the tactics that these companies are using to build market power and influence prices. So I think the more people power, the better, in terms of understanding what the most current tactics are, but it doesn’t seem like this will have significant immediate difference on these practices.

Kenen: I think that the gap between where the government is and where the industry is is so enormous. I think the role of PE [private equity] in health care has grown so fast in a relatively short period of time. Was there a presence before? Yes, but it’s just really taken off. So I think that if those who advocate for greater oversight, if they could just get some transparency, that would be their win, at the moment. They cannot go in and stop private equity. They would like to get to the point where they could curb abuse or set parameters or however you want to phrase it, and different people would phrase it in different ways, but right now they don’t even really know what’s going on. So, even among the Democrats, there was a fight this year about whether to include transparency language between [the House committees on] Energy and Commerce and Ways and Means, and I don’t think that was ever resolved.

I think that’s part of the “Let’s do it in January” mess. But I think they just sort of want not only greater insight for the government, but also for the public: What is going on here and what are its implications? People who criticize private equity — the defenders can always find some examples of companies that are doing good things. They exist. We all know who the two or three companies we hear all the time are, but I think it’s a really enormous black box, and not only is it a black box, but it’s a black box that’s both growing and shifting, and getting into areas that we didn’t anticipate a few years ago, like ophthalmology. We’ve seen some of these studies this year about specialties that we didn’t think of as PE targets. So it’s a big catch-up for roll-up.

Rovner: Yeah, and I think it’s also another place that the administration — and I think the Trump administration tried to do this too. Republicans don’t love some of these things either. The public complains about high health care costs. They’re right; we have ridiculously high health care costs in this country, much higher than in other countries, and this is one of the reasons why, is that there are companies going in who are looking to simply do it to make a profit and they can go in and buy these things up and raise prices. That’s a lot of what we’re seeing and a lot of why people are so frustrated. I think at very least it at least shows them: It’s like, “See, this is what’s happening, and this is one of the reasons why you’re paying so much.”

Kenen: It’s also changing how providers and practitioners work, and how much autonomy they have and who they work for. It’s in an era when we have workforce shortages in some sectors and burnout and dissatisfaction. There are pockets at least, and again, we don’t really know how big, because we don’t have our arms around this, but there are pockets; at least we do know where the PE ownership and how they dictate practice is worsening these issues of burnout and dissatisfaction. I’m having dinner tomorrow night with a expert on health care antitrust, so if we were doing this next week, I would be so much smarter.

Rovner: We will be sure to call on you in January. Workforce burnout: This is another theme that we’ve talked about a lot this year.

Kenen: It’s getting into places you just wouldn’t think. I was talking to a physical therapist the other day and her firm has been bought up, and it’s changing the way she practices and her ability to make decisions and how often she’s allowed to see a patient.

Rovner: Yeah. Well, another continuing theme. Well, yet another big issue this year has been the so-called Medicaid unwinding, as states redetermine eligibility for the first time since the pandemic began. All year, we’ve been hearing stories about people who are still eligible being dropped from the rolls, either mistakenly or because they failed to file paperwork they may never have received. Among the more common mistakes that states are making is cutting off children’s coverage because their parents are no longer eligible, even though children are eligible for coverage up to much higher family incomes than their parents. So even if the parents aren’t eligible anymore, the children most likely are.

This week, the federal government reached out to the nine states that have the highest rates of discontinuing children’s coverage, including some pretty big states, like Texas and Florida, urging them to use shortcuts that could get those children’s insurance back. But this has been a push-and-pull effort all year between the states and the federal government, with the feds trying not to push too hard. At one point, they wouldn’t even tell us which states they were sort of chiding for taking too many people off too fast. And it feels like some of the states don’t really want to have all these people on Medicaid and they would just as soon drop them even if they might be eligible. Is that kind of where we are?

Raman: You can kind of look to see the tea leaves at what some of these states are. The states that the health secretary wrote to, that have 60% of the decline in the kids being disenrolled, align pretty well with the states that have not expanded Medicaid. So they’re already going to have much fewer people enrolled than states where the eligibility levels are a lot more generous. So it’s not surprising, and some of these states have been just a little bit more aggressive from the get-go or said that they wanted to do the eligibility redeterminations a lot faster than some of the other states that wanted to take the longer time, reevaluate different ways to see if someone was still eligible, whether they were maybe getting SNAP [Supplemental Nutrition Assistance Program] benefits or other things like that. So it’s not surprising.

Rovner: You mean do it more carefully.

Raman: Yeah, yeah, so I think that the letter is one step, but if those states are really going to take up implementing these other strategies to kind of decrease that drop-off, unclear, just because they have been pretty proactive about doing this in a quick process.

Rovner: I also noticed that the states that the HHS secretary wrote to kind of tracked with the states that didn’t expand Medicaid under the Affordable Care Act, but interestingly, that meant that there would’ve been fewer parents who were eligible in the first place. So there shouldn’t have been as many children cut off, because there weren’t as many parents who ever got onto Medicaid in those states, which is why it made me raise my eyebrows a little bit. Again, I think this is something that we shall continue to follow going into next year.

Kenen: But we should also point out that even the more pro-Medicaid, liberal states have not done a great job with unwinding. It’s been bumpy pretty much across the board. It’s been very problematic. It’s a clumsy process in a normal year, and trying to catch up on three years’ worth — this is a population where people’s income varies a lot. Are you just over the line? Are you just under the line? It’s fluctuating, the eligibility changes. But you try to do three years at once after all the chaos, with political undercurrents such as the nonexpansion states, and it makes it harder and messier.

Rovner: Which was predicted and came true. So yet another theme from this year is what I’m calling the managed care backlash redux. In the late 1990s, when lots of people were herded into managed care for the first time, there were lots of horror stories about patients being denied care, doctors being put through bureaucratic hoops, unqualified people making medical decisions. There’s a bipartisan bill that almost came to fruition in 2001 for what was called a patient’s bill of rights, but it was pushed off the agenda by 9/11. Most of the protections in that bill, however, were eventually included in the Affordable Care Act.

So now it’s 2023, and lo and behold, those same issues are back. A top issue for the American Medical Association this year is reining in prior authorization requirements, which require doctors to actually get permission before their patients can get recommended care. In one particularly painful story recently, a woman who’d been approved for a lung transplant had her surgery canceled by her insurer, literally on the way to the OR [operating room]. Later, and not coincidentally after a public outcry, the insurer, Cigna, called the whole thing, quote, “An error.” So she did finally get her lung transplant. Joanne, you covered the patient’s bill of rights fight with me back in the day. Most things that are being complained about now are now illegal. So why are we seeing so much of it again?

Kenen: Because there’s confusion about — patients don’t know what their rights are. All of us are savvy and all of us have had something in our own insurance that we don’t understand, or maybe we end up navigating it, but it’s not ever easy. Things like prior authorization — they say, “Well, we have to make sure people are getting appropriate care.” There is an element of truth there; there is overuse in American health care. There are people who get things they don’t really need or should try something less intrusive and less expensive first. So you have this genuine issue of overtreatment, back surgery being the classic example. Many people will do just as well with physical therapy and things like that than they will with an $80,000 operation. In fact, they might do better with the PT and not with the $80,000 operation.

So is there any validity to the idea of making sure people get appropriate care? Yes, but they say no to stuff that they should be covering. That’s clear, and that patients don’t always know what the right pathway is, because doctors also have incentives, or just the way they’re trained and the way they look at their — surgeons like to cut. It’s what they’re trained to do. They trained for years. So it’s really complicated, because there’s this collision between overuse and overtreatment and overcharging and all the over, over, over stuff that comes from the provider world and the no, no, no, no, no, no, no, “you can’t have that” stuff that comes from the insurer world, sometimes appropriately, but often not appropriately.

Rovner: Then I guess you load onto that the private equity and now the providers whose overlords are in it to make a profit. Then you have sort of private equity butting heads with insurance, which is one of the reasons I think we are sort of ending up here. But it certainly does feel very reminiscent of things that I’ve been through before. We’re seeing yet a similar story with Medicare Advantage, which is the private Medicare managed care program that now enrolls more than half of the Medicare population and makes lots of money for its private insurance companies that offer them.

Rachel, your colleagues wrote about a Humana algorithm that was being used to deny care after a patient had received it for, quote-unquote, “an average period of time, regardless of the patient’s condition,” meaning that if patient is sicker than average, they were saying, “Too bad, we’re only going to give this to you for 18 days because that’s what the average patient needs. If you need more, sorry about that.” So Congress is now trying to get into the act, trying to ensure that Medicare patients, who tend to vote in disproportionate numbers, get their needed care. The insurance industry is pushing back against the pushback. What’s the outlook for Congress actually getting something done on this issue? I’ve heard a lot of talk. I haven’t seen a whole lot of action.

Cohrs: Yeah, I mean certainly there has been talk — and just to point out that the Humana lawsuit is related to the UnitedHealth Group lawsuit that we saw earlier; it’s the same company making the algorithm. Bob and Casey’s reporting was just more focused on UnitedHealth Group, because they got internal documents showing the correlation between the quote-unquote “recommendation” of this algorithm and care decisions and denials and people being cut off from their rehab services. So I think certainly, I think there has been a lot of outcry. We’re seeing this play out in the legal system beforehand. This is an issue that we’ve discussed as well.

Are we going to regulate through the courts, because everything else is too slow? I think AI is certainly a hot topic on the Hill at the moment, and there is lawmaker interest, but this is just a very complicated space. Lawmakers, though they might try their best, are not the most tech-savvy people. These are very powerful interests that I would imagine would oppose some of these regulations if they were to actually materialize. So, there’s nothing imminent. Certainly if we see these lawsuits keep piling up, if we see discovery, if we see some more examples of this happening where other companies are using the algorithms as well, a groundswell — as you mentioned, Medicare patients are an important constituency — I think we could see some action, but it’s not looking imminent at this time.

Kenen: The other thing is there’s been a number of reports from a number of media outlets, Stat and others, that these algorithms are being used without any people to work with them. Like, OK, here’s this algorithm and it’s doing these batches of like, I’m going to say no to 50,000 people in 20 seconds. I’m exaggerating a little bit there, but yes, is there legitimate questions about what is appropriate treatment? Yes.

Or you hear these stories about people told, “You can’t have this drug; you have to have that drug at first,” but they would try that drug and it didn’t work for them, and there’s just no way of — the reason we have five or six similar drugs is that in some cases, those slight differences, people respond differently, mental health being a huge example of that, right? Where it could be very hard to get people on the right drugs, if person A doesn’t respond the same way as person B, even if they have the same condition. But 50,000, I don’t know if that’s the right number, but I think I remember reading one where it was 50,000 going through an algorithm. That’s not appropriate use; that’s mass production of saying no to some legitimate needs.

Rovner: Sandhya, I see you nodding there. I know that this is something that’s kind of bipartisan, right? Members of Congress get complaints about Medicare, which is something that they do, members of Congress, oversee. It is a government program, even though these are being run by private companies. I’m sort of wondering when this is going to reach a boiling point that’s going to require something to be done.

Raman: I think with some of these issues that we face that are kind of evergreen here, there has been a bipartisan push to find kind of ways to reform the prior authorization process. We’ve had people as different as Sen. Elizabeth Warren (D-Mass.) and Sen. Mike Crapo (R-Idaho) say they want reform, or Sen. James Lankford (R-Okla.) is very different from Rep. Pramila Jayapal (D-Wash.), and they’ve both said that, similar things that …

Rovner: Some of the most conservative and the most liberal members of Congress.

Raman: Yeah, so we’ve got a broad stretch, but I think at the same time, if you look at some of the other things that we have to deal with here — Congress is out for the year, but for next year, we are fairly behind in that we have a long list of things that need to be extended by mid-January. Then we have just funding all of HHS and a number of other government things by early February. So getting something from start to finish next year, which is also an election year, is going to be tough. So I think that there’s interest there, but I don’t know that getting something hashed out is going to be the easiest next year of all years.

Rovner: Yeah, I think it’s fair to say that Congress took an incomplete in most subjects this year. Well, finally this week, the topic that I think has been in every podcast this year, which is abortion. One of the threads that has wound through this year’s coverage is the strong support for abortion rights from voters, even in red and red-ish states. This year, Ohio voters affirmed a right to abortion, twice actually; there was a technical vote back in the summer. And in Virginia, Democrats flipped the legislature by running against Republican promises to impose a compromise 15-week ban, which apparently did not seem to be a compromise to most of the voters. That was after a half a dozen states voted in favor of the abortion rights position in the 2022 midterms. So this week we have a pair of stories, one from Politico and one from The New York Times, about how anti-abortion forces are working to keep future abortion-related questions off of the ballot in states where there’s still that possibility, including Florida, Missouri, Arizona, and Nevada.

One Republican Missouri lawmaker said that the right to life, quote, “should not be taken away because of a vote by a simple majority,” which frankly felt a little breathtaking to me. He has filed a bill that would require ballot measures to pass not just statewide, but with a majority in more than half of the state’s congressional districts. So basically in the really red parts of the states, a majority there would also have to vote for this. These people are getting very creative in their attempts to stop these votes from happening, maybe because they don’t think they can win them if it’s just straight up or down.

Raman: I think one thing to look at is kind of how we see some of these similar tactics in the same way that we saw with Medicaid. When Medicaid expansion started winning on different ballots, there were states that tried to put in measures to kind of tamp that down, saying, “You need a higher threshold,” and maybe that doesn’t pass, but still putting in different tactics to reduce the likelihood of that passing. I think that’s kind of what we’ve been seeing here, whether or not it’s Ohio trying to change its threshold, or we’ve had states say that even if something passed, let’s try to tear that back so that it doesn’t actually get implemented, or ahead of the ones for next year, let us find tactics to reduce the likelihood they’ll get the signatures to be on the ballot or reduce the likelihood of it passing by changing the language or pushing for challenging the language.

So there’s kind of what we saw right after the Dobbs decision, which was just a very “throw spaghetti at the wall, see what sticks,” just kind of ramp up things and see what will work, given that the last — all of the elections that we’ve had post-Dobbs have been in the favor of abortion rights. Even when we’ve tried to pass an anti-abortion measure, it’s not passed at the ballot. In the stories that you mentioned, there was another quote that stuck out to me, where they’d also mentioned that maybe this should not be subject to majority vote, I think in the Politico piece as well. So I think that’s something that is interesting that I haven’t really seen vocalized before, that this should be done in a different manner rather than this is how the majority of people feel one way or the other.

Rovner: Yeah, it felt so ironic because when in the Dobbs decision, Justice [Samuel] Alito wrote, “Well, now we’re turning this back to the states to be decided by their voters.” Well, here are their voters deciding, and it turns out the anti-abortion side don’t like the way the voters are voting, so they’re going to try to not have the voters vote, basically. We will see how this one all plays out. The other continuing story this year is women being prosecuted basically for bad pregnancy outcomes. Last week we talked about the case of Brittany Watts, an Ohio woman who was sent home from a hospital emergency room twice, had a miscarriage, and this week had formal charges filed against her for, quote, “abusing a corpse.” This case hasn’t gotten nearly the attention of the case of Kate Cox, the Texas woman whose fetus was diagnosed with fatal defects and who filed suit to be allowed to have an abortion.

She eventually had to go to another state, and that was even before the permission that had been granted by a lower-court judge was overturned by the Texas Supreme Court. It may be at least in part because Brittany Watts is black, or that she didn’t put herself out in public the way Kate Cox did, but this is a way that prosecutors can punish women even in states where abortion remains legal. Remember Ohio voted twice this year to keep abortion legal, and this wasn’t even an abortion; it was a miscarriage. The medical examiner determined that the fetus was already dead when it passed. What are the prosecutors trying to do here? We talk about chilling effects. This is kind of the ultimate chilling effect, right?

Raman: It really is, because here we have someone that was not, as you said, seeking an abortion. She miscarried, and I think that she was 21 weeks and five days pregnant, and then they had the 21-week cutoff. So it gets sent into really murky waters here because I’m not sure what they’re going for, kind of picking this case to prosecute and go with. We’ve had this happen before where people have self-managed or miscarried, and then they’ve ended up being prosecuted. But at this point, I’m not sure why they’re making a case out of this particular woman, kind of dragging this into the debate.

Rovner: Yeah, there was a famous case in Indiana — 2013, may have been even before that — a pregnant woman who tried to kill herself and failed to kill herself, but did kill her fetus, and she was put in jail for several years. There have been, at least there was sort of the question there, were you trying to self-abort at that point? But there was nothing here. This was a woman with a wanted pregnancy whose pregnancy ended via natural circumstances, which happens, I think we’ve discovered now, a lot more than people realize.

I think people don’t talk about unhappy pregnancy outcomes, so people don’t realize how common they actually are. But I wonder — and I’ve been saying this all year — again, if women are fearing prosecution, even women who want babies, they may fear getting pregnant. I’ve seen some stories about more permanent types of birth control happening because women don’t want to get pregnant, because they don’t want to end up in a place where their health is being risked or they’re trying to get health care they need and their doctor or they could be facing prison time.

Kenen: And in this case, she had gone to the hospital. It’s complicated. She went in and out of the hospital. She went to the ER; they sent her home. I think then once they sent her home another time, she left against medical advice, but she wasn’t trying to get an abortion. She was having pregnancy complications. It’s documented. She was in and out of medical care. Pregnancies can fail, and early, the first trimester, it’s a very high rate. It’s less common later on, but it still happens. There are times when an early miscarriage, you might not even know that it’s a miscarriage. It’s early. You don’t know what’s even going on with your own body, or you’re not certain. So she didn’t know what to do at home when she did miscarry. It seems very punitive. Did she behave in an absolutely ideal, textbook-perfect, the way you wish she might have? But she did what she could do at the time.

Rovner: Yeah, it’s hard to know what to do. Well, we will watch this case, I think, even though it’s not, as I say, it’s not getting quite the attention of some of the other cases. Our final this week in health information of 2023 goes to an ad that came to my email from the All Family Pharmacy in Boca Raton, Florida. The headline is “Miracle Drug Ivermectin for Covid-19 Could Save Lives,” and it claims that, quote, “a growing body of evidence from dozens of studies worldwide demonstrates ivermectin’s unique and highly potent ability to inhibit SARS-CoV-2 replication and aid in the recovery from covid-19.”

That sounded not quite right to me, so I looked up some of the studies that they cited and found that most had been thoroughly debunked, that ivermectin is not really good treatment for covid-19. I even found one study from an open-access journal that had to publish a correction, noting that two of its authors were paid consultants to ivermectin manufacturers, though they had failed to disclose that conflict. Meanwhile, if you don’t want ivermectin or hydroxychloroquine, which the All Family Pharmacy also sells, they will also sell you semaglutide, which is the scientific name of the hard-to-get weight loss drug Ozempic. And they say their price even includes a doctor consult. I will post the links in the show notes. All right, that is this week’s news. Now we will play my interview with Jordan Rau about his long-term care financing series. Then we’ll come back with our extra credits.

I am pleased to welcome to the podcast my KFF Health News colleague Jordan Rau. I asked Jordan to join us to talk about his latest project, “Dying Broke,” done in partnership with The New York Times. It’s about the growing expense of long-term care and the declining ability of Americans to pay for it. Jordan, welcome to “What the Health?”

Jordan Rau: Glad to be here, Julie.

Rovner: So I want you to start with the 30-second elevator pitch about what you found working on this, for two years?

Rau: Just about. The big-picture view is that when you’re elderly, if you need long-term care, by which we’re talking about nonmedical things, like personal aides, if you need help in your daily activities going to the bathroom or eating or such, or if you have a cognitive impairment like dementia, it’s exceedingly expensive, except if you are destitute. The private market solutions, which are long-term care insurance, really don’t work, and most people don’t hold it. The government solution, which is Medicaid, is only available to you once you’ve exhausted just about all of your assets and have very low income. And that’s led the vast majority of people out on their own financially to either rely on themselves or their family or other people to take up the burden. And that burden is significant for the children of older people.

Rovner: So it’s not just nursing home care that costs more than all but the richest can afford; assisted living and home care, which people assume are going to be a lot cheaper and that maybe their retirement savings will cover — they’re also increasingly out of reach. Why has the price of long-term care gone up so much faster than Americans’ retirement savings?

Rau: All of medical inflation has gone up enormously, but I think a lot of it is that there’s so little regulation on prices. There’s frankly no regulation on prices of assisted living, and you don’t have a large payer that can control prices. That’s one of the good things about Medicare, is that they set their own prices and that’s helped keep prices down. That’s why it’s less expensive for Medicare to send someone to a nursing home than for someone to pay out-of-pocket. But there’s none of that. So the prices have just gone where they’ve gone, and now you have a scarcity of workers as well. So that’s driving up wages.

Rovner: People who’ve been socking away money and thinking they’re going to be able to pay for this themselves get kind of a rude awakening when they need, and it’s not — as you say, it’s not even medical long-term care; it’s just help with activities of daily living.

Rau: Yeah, yeah, yeah. I think one of the problems is that people assume they have the best-case scenario when they’re envisioning their retirement. They’re going to be off golfing, they’re going to be playing around with their grandkids, they’re going to be taking trips. The fact is, you’re very likely — if you live well into your 80s and 90s, as many people do — to not be able to live independently anymore, to need help with at least a little bit of things, and in worst-case scenario everything. People just don’t expect that that’s going to happen.

Rovner: So why do so many Americans still not know that Medicare doesn’t pay for long-term care? I feel like I’ve been saying this since 1980-something.

Rau: I wonder how much of it would’ve been different if they had decided to name Medicaid something that isn’t so close to Medicare. Maybe that would’ve helped, but realistically, everyone I think has a sense. Well, first of all, who’s paying attention to this stuff when you’re in your 30s and 40s, right? You’re not thinking about what’s going to happen to you in the 60s. And then I think that people just don’t expect that this is going to happen to them, and Medicare has a well-earned reputation as being pretty comprehensive. It doesn’t cover certain things, and there is a “donut hole” situation, so you’ve got to get supplemental. But people know that for the most part, it’s covered. And people don’t understand that long-term care, the nonmedical side, is — not just here, everywhere — it’s the backwater of health care. It’s not even considered health care in some ways.

So you just assume — I mean, I would assume, right, if Medicare is going to cover my heart transplant, why would I not think that it’s going to cover someone to come to my house a couple hours a day to help me with stuff or to put me in an assisted living facility if it covers nursing home care? It’s such a complicated, Byzantine system. You and I, we’ve been doing this probably combined, well, I don’t want to say how long, but it’s been a long time, and it’s hard for us to untangle exactly what is covered and what overlaps with what and what are the eligibility rules. So to expect a regular person, who isn’t paid to do this 50 hours a week, to know it is highly unrealistic.

Rovner: Yeah, and I was going to say the fact that Medicare actually has a home care benefit and it has a nursing home benefit; they’re just super limited. I think that sort of adds to the confusion too, doesn’t it?

Rau: Yeah. Well, even Medicare is confused about its home care benefit, right? There’s the whole Jimmo case and a whole debate about what you need to qualify for it.

Rovner: So listeners will know that long-term care and our country’s complete lack of a long-term care policy is a pet issue of mine and has been since I started writing about it in 1986. It isn’t like the government hasn’t tried to do something. There was the ill-fated Medicare Catastrophic Coverage Act in 1988 that ended up getting repealed. There were efforts to subsidize private long-term care insurance in the 1990s that didn’t really go anywhere, and there was the CLASS [Community Living Assistance Services and Supports] Act that was briefly part of the Affordable Care Act when it passed in 2010, only to be abandoned as financially unfeasible. Why has this been such a hard issue to address from a policy point of view?

Rau: The one-word answer obviously is money. It’s incredibly expensive. So to have that type of lift, it would be to expand either Medicaid or Medicare or to create a new program; would be inordinately expensive. But beyond that, I think basically, to do this, you either have to tag on something to one of those existing programs, which is a major expansion, or you have to have a mandatory insurance program. It could be a public one; it can be a private one. I think that it’s hard because it’s not universal. Auto insurance — everybody drives, right? So if you say, OK, you all know you’re going to drive, and people know like, Oh, I may get into an accident. So then you have a functioning insurance market.

Health insurance, sort of the same thing. Everyone knows that they’re going to need health insurance maybe next year. So that’s an easier sell. Even that, right, with the Affordable Care Act — that passed by just one vote. That was a heavy lift. So here you’re saying, here’s something that you may need but you very well may never tap. By the way, we want you to pay for it now or buy into it now, and it’s not relevant for your life until 30 years. I just think that’s a hard sell politically to the population, to the political system. It’s a hard sell.

Rovner: So if there was just one message that you hope people take away after reading this exhaustive series, what do you think it should be?

Rau: Printing the series out and frame it and put it on your wall would be my main message. But I would say that this stuff is so unpredictable that you really have to have some flexibility in your expectations and planning, because you can’t plan to not get early-onset dementia. You can’t plan to need help. So I think that you need to — people obviously need to have as much of a cash cushion as they can, and they need to bone up on this before it’s a crisis, because by the time it’s a crisis — and this is a problem, right, with health insurance too. By the time you’ve got the emotional and health issues, to throw on top of it a bureaucratic sort of financial issue is just so hard for most people to juggle. So there isn’t an easy solution, but it is important for people to realize that this is as much of a risk as smashing your car into a telephone pole and that you cannot have one answer.

Your answer cannot be like, “Oh, well I’m just going to stay in my house, because you may not be able to stay in your house.” Or your answer can’t be, “Well, I’m going to go into a fancy assisted living facility with a great chandelier and great food,” because unless you save an inordinate amount of money, even if you go in there, you may not be able to afford to stay there. So it’s really a recognition that you can’t really concretely plan for this, but you may very well not be able to live independently if you are lucky enough to live into your eighth and ninth decade.

Rovner: Great. Jordan Rau, anything I didn’t ask?

Rau: Never. Never, Julie.

Rovner: Jordan Rau, thank you so much for joining us.

Rau: Great to see you.

Rovner: OK. We are back, and it’s time for our last extra credit segment of the year. 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 kffhealthnews.org and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs: Sure. The story I chose is in ProPublica. The headline is “Doctors With Histories of Big Malpractice Settlements Work for Insurers, Deciding If They’ll Pay for Care,” by Patrick Rucker at The Capitol Forum and David Armstrong and Doris Burke at ProPublica. I think this article very much fits into the larger theme we were talking about earlier about insurance denials. This was pretty shocking still to me, of these instances of doctors with big malpractice settlements that had been disciplined by medical boards failing up essentially and getting jobs. If they can’t practice anymore, then they’re getting jobs in insurance companies instead, deciding whether a much larger volume of patients get care. So I think it was just a fascinating, really well-done investigation. It sounded like it was really difficult to match up all the records with the lawsuits and the settlements, and there aren’t necessarily databases that exist of what doctors work for insurance companies. So it was just really well done and just a really important space that we’ll continue to talk about.

Kenen: That was a great piece. These doctors are making $300,000 to $400,000 a year, these people who failed up, as Rachel just put it. Yeah.

Rovner: Yeah. That’s the perfect phrase. Sandhya.

Raman: My extra credit this week is called “Mississippi Community Workers Battle Maternal Mortality Crisis,” and it’s from my colleague at Roll Call Lauren Clason. This story also illustrates a combination of themes from this year. It touches on some of the maternal health inequities, the racial inequities, and rural health inequities, and how politics kind of comes into all of that. Mississippi Black women die at a rate four times higher than white women, and the state also leads in infant mortality rates nationwide. At the same time, it’s also a nonexpansion state for Medicaid. So Lauren went to Mississippi to look at some of the community and state-led groups that are trying to reduce these inequities that are caused by the different racial, socioeconomic, and access factors that are happening at the same time that an increasing number of hospitals are closing in the state.

Rovner: Also another really good story. Joanne?

Kenen: The theme of the day is yearlong, or decades-long in some cases, but ongoing health stories that have dominated the year. Another one that we didn’t touch on today but clearly is an ongoing multiyear health crisis is gun violence, which is a public health problem as well as a criminal justice problem. The Trace did a fantastic end-of-year project by Justin Agrelo. It’s called “Chicago Shooting Survivors, in Their Own Words.” They worked with both people who had survived shootings as well as people who had lost family members to shootings, and they worked with them about how to write and tell stories.

These five stories are in these people’s own words, and it was partnered with a bunch of other Chicago-based publications. They’re very powerful. In the introduction, they wrote that the Chicago media has been really good about trying to cover every homicide but that these people end up being defined by their death, not everything else about their life. These essays, they didn’t just talk about grief, which is obviously a huge — grief and trauma — but also the lives, not just the deaths. It’s really, really worth spending some time with.

Rovner: Yeah, and we haven’t talked as much as we probably should have about gun violence, but we will put that on the list for 2024. My extra credit this week is from Business Insider. It’s called “I Feel Conned Into Keeping This Baby.” It’s by Bethany Dawson, Louise Ridley, and Sarah Posner. It’s about an anti-abortion group that promised pregnant women financial support for their babies if they agreed not to get an abortion. But even though the women signed contracts, the group, called Let Them Live, did not provide the aid promised. Apparently they promised more money than they could raise in contributions. Now, I have heard of pregnancy crisis centers promising things like diapers and formula, but this group said it would help with groceries and rent and other significant expenses until it didn’t. Apparently the small print in the contract said the benefits could be reduced or stopped at any time. This was supposed to help answer the criticism that anti-abortion groups don’t actually care about the women, particularly after they give birth, except maybe promising things that you can’t deliver isn’t the best way to do that.

OK. That is our show for this week and for this year. 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 technical guru, Francis Ying, and our editor, Emmarie Huetteman. Also as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Sandhya, where are you on social media these days?

Raman: I’m @SandhyaWrites on both X and Bluesky.

Rovner: Rachel.

Cohrs: I’m @rachelcohrs on X, @rachelcohrsreporter on Threads.

Rovner: Joanne.

Kenen: @joannekenen1 on Threads. I’m occasionally on X — or, as you all know, I’ve been calling it Y — @JoanneKenen.

Rovner: We will be back in your feed in 2024. Until then, have a great holiday season, and be healthy.

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