But when his knee started aching in late 2020, he discovered that Ballad Health was the only game in town: He went to his longtime primary care doctor, now employed by Ballad, who sent him to an orthopedist’s office owned by Ballad. That doctor sent him to get an X-ray at a Ballad-owned facility and then he was referred to a physical therapy center called Mountain States Rehab, which was now owned by Ballad as well.

When the price of his physical therapy doubled overnight — to nearly $200 for approximately 30 minutes — there was nowhere else to go, because Ballad Health effectively had a monopoly on care in 29 counties of the Appalachian Highlands in northeastern Tennessee, southwestern Virginia, northwestern North Carolina, and southeastern Kentucky.

“I was stuck,” said Finney, a college professor. “My wife now drives 50 miles to see a doctor that’s not part of Ballad, and I don’t have a doctor anymore.”

Biden administration regulators have unleashed a blizzard of antitrust activity and have broadened the definition of the types of unfair competition they can target. Regulators blocked a merger between publishing giants Penguin Random House and Simon & Schuster, saying it could have decreased author compensation and diminished the “diversity of our stories and ideas.” Regulators have filed suit to block JetBlue’s acquisition of Spirit Airlines on the grounds that the existence of the lower-cost Spirit kept fare increases by other carriers in check.

But while hospital mergers and creeping consolidation have arguably proved more traumatic and costly for countless Americans like Finney, they may prove harder to curtail.

After decades of unchecked mergers, health care is the land of giants, with one or two huge medical systems monopolizing care top to bottom in many cities, states, and even whole regions of the country. Reams of economic research show that the level of hospital consolidation today — 75% of markets are now considered highly consolidated — decreases patient choice, impedes innovation, erodes quality, and raises prices.

Ballad has generously contributed to performing arts and athletic centers as well as school bands. But, critics say, it has skimped on health care — closing intensive care units and reducing the number of nurses per ward — and demanded higher prices from insurers and patients. It has a habit of suing patients for unpaid bills. Its chief executive was paid about $4 million last year.

For many years in the past century the Federal Trade Commission made little effort to go to court to block hospital mergers because judges tended to rule that as nonprofit entities, hospitals were unlikely to use monopoly power to pursue abusive business practices. How wrong they were.

In 2021 President Joe Biden ordered the FTC to be more aggressive about hospital mergers and even to review those that had already occurred. But it is unclear if the agency has the tools to do much. “Regulators are 10 to 15 years behind and don’t have the resources — so that’s where we are,” said James Capretta, a senior fellow at the American Enterprise Institute.

The normal procedure for blocking proposed hospital mergers is cumbersome: often lengthy analysis to prove the effects on a particular market, warning letters, negotiations, and finally challenges in court.

With its staff of about 40 focused on hospitals, the FTC has prevented seven mergers in the past two years, said Rahul Rao, deputy director of the agency’s Bureau of Competition, who called the problem a “top priority.” But there were 53 hospital mergers and acquisitions in 2022 and have been more than 90 per year in recent years.

“It’s really hard to show that a prospective transaction is anti-competitive,” said Leemore Dafny, a Harvard economist who worked at the FTC about a decade ago. “I saw how hard it was for government to prove its case, even when it seemed obvious.”

In one market, two hospitals might be enough to ensure competition; in another, four. Even if the price goes up, that may not be considered anti-competitive if quality improves.

The FTC has an even harder time evaluating the vertical merger, which is far more common: when a big hospital system buys up a much smaller hospital or some doctors’ practices and independent surgery or radiology centers — or when it merges with a local insurer.

Many such mergers are never vetted at all, since transactions under $111 million do not have to be reported to the agency. “It’s a visibility problem,” Rao said. “We hear about it from news reports or from a state attorney general” who is more in touch with activity on the ground. Many of today’s behemoth systems — such as Northwell Health in New York, Sutter in California, and the University of Pittsburgh Medical Center in Pennsylvania — grew often by buying one small hospital, physician practice, or surgery center at a time, below the threshold where they would attract federal regulators’ scrutiny or merit use of their limited resources.

When hospitals buy doctors’ practices, research shows, rates for visits tend to go up as they did for Finney. Some purchases are essentially catch-and-kill operations: Buy a nearby independent outpatient cardiac center, for example, to eliminate cheaper competition.

As hospital systems have grown — and become major employers — their sway with state legislatures has created obstacles to curbing consolidation. Sympathetic state lawmakers have passed so-called Certificate of Public Advantage laws to shield hospitals from both federal and state antitrust action. Such certificates in Tennessee and Virginia allowed the formation of Ballad from two competing systems in 2018, over the FTC’s objections. The North Carolina Senate recently gave the UNC Health system the green light to expand, regardless of regulators’ thoughts.

The newest challenge is how to handle the growing number of cross-market mergers, where huge health systems in different parts of a state or of the country join forces. While the hospitals are not competing for the same patients, emerging research shows that these moves result in higher prices, in part because the increased negotiating clout of the enormous health system forces companies that cover employees in both markets to pay more in what previously was the cheaper region.

There are attempts and proposals to reinject a modicum of competition or restraint into the health system: The FTC has sought to ban noncompete clauses in job contracts that prevent doctors and nurses from moving from one hospital to another within a certain time, for example.

But many economists on both the left and the right have concluded that, at this point, meaningful competition may be difficult to restore in many markets. Barak Richman, a professor of law and business administration at Duke University, said, “It’s depressing for economists who live and breathe by competition to say maybe we just need price regulation.”

Indeed, a number of states — red and blue — are now gingerly floating moves to directly rein in prices. This year the Indiana Legislature, for example, banned hospitals from charging facility fees for visits outside of the hospital. The lawmakers even considered fining hospitals whose prices were more than 260% of the Medicare rate — though they deferred that move for two years in the hope that the threat would encourage better behavior.

With the FTC becoming more aggressive and legislatures considering such measures, perhaps hospital systems will heed the warnings and behave more like the care providers they’re meant to be and less like monopoly businesses.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

As he received care, he expressed discomfort with the predominantly white teams handling his case. He believed that both clinicians and non-clinical staff discriminated against him because of his racial and ethnic identity, as well as his public insurance status.

Read the rest…

Davila was sick enough that staffers at the local hospital gave her 2 liters of IV fluids and prescribed a daily regimen of vitamins and medication. This will be Davila’s third child and she hopes the nausea means it’s another girl.

Davila had moved back to her hometown of Clayton, New Mexico, so her kids could grow up near family — her dad, aunts, uncles, and cousins all live in this remote community of about 2,800 people in the northeastern corner of the state. But Clayton’s hospital stopped delivering babies more than a decade ago.

Aside from being sick, Davila was worried about making the more than 3½-hour round trip to the closest labor and delivery doctors in the state.

“With gas and kids and just work — having to miss all the time,” Davila said. “It was going to be difficult financially, kind of.”

Then, Davila spotted a billboard advertising the use of telehealth at her local hospital.

In rural regions, having a baby can be particularly fraught. Small-town hospitals face declining local populations and poor reimbursement. Those that don’t shutter often halt obstetric services to save money — even as the number of U.S. mothers who die each year while pregnant or shortly after has hit historic highs, particularly for Black women.

More than half of rural counties lack obstetric care, according to a U.S. Government Accountability Office report released last year. Low Medicaid reimbursement rates and a lack of health workers are some of the biggest challenges, the agency reported. New Mexico Medicaid leaders say 17 of the state’s 33 counties have limited or no obstetric care.

Those realities prompted the Federal Office of Rural Health Policy, which is part of the Health Resources and Services Administration, to launch the Rural Maternity and Obstetrics Management Strategies Program, RMOMS. Ten regional efforts nationwide — including one that serves Davila in northeastern New Mexico — have been awarded federal grants to spend on telehealth and creating networks of hospitals and clinics.

“We’ve never done this sort of work before,” said Tom Morris, associate administrator for the office at HRSA. “We were really testing out a concept … could we improve access?”

After joining the telehealth program, Davila didn’t have to take the afternoon off work for a recent prenatal checkup. She drove less than a mile from her job at the county courthouse and parked near the hospital. As she stepped inside a ranch-style yellow-brick clinic building, staffers greeted Davila with hugs and laughter. She then sat on a white-papered exam table facing a large computer screen.

“Hello, everybody,” said Timothy Brininger, a family practice doctor who specializes in obstetrics. He peered out the other side of the screen from about 80 miles away at Miners Colfax Medical Center in Raton, New Mexico.

The visit was a relief — close enough for a lunchtime appointment — and with staff “I’ve known my whole life,” Davila said. She heard her baby’s heartbeat, had her blood drawn, and laughed about how she debated the due date with her husband in bed one night.

“They’re nice,” Davila said of the local staff. “They make me feel comfortable.”

Yet, Davila may be one of the last expectant mothers to benefit from the telehealth program. It is slated to run out of money at the end of August.

‘Oh My God, It Really Made a Difference’

The day after Davila’s prenatal checkup, Brininger sat at his desk in Raton and explained, “The closest OB doctor besides the one sitting in front of you who’s working today is over 100 miles in any direction.”

When the telehealth program runs out of money, Brininger said, he wants to keep devices the grant paid for that enable some patients to home-monitor with blood pressure cuffs, oxygen sensors, and fetal heart rate monitors “so they don’t have to drive to see us.”

The retired military doctor has thoughts about the pilot program ending: “I will hope that our tax dollars have been utilized effectively to learn something from this because otherwise it’s a shame.”

Because of the grant, 1,000 women and their families in northeastern New Mexico have been connected to social services like food assistance and lactation counselors since 2019. More than 760 mothers have used the program for medical care, including home, telehealth, and clinic appointments. In its first year, 57% of the women identified as Hispanic and 5% as Indigenous.

Jade Vandiver, 25, said she feels “like I wouldn’t have made it without them.”

In the early months of her pregnancy, Vandiver slept during the day and struggled with diabetic hypoglycemic episodes. Vandiver’s husband repeatedly rushed her to the Clayton hospital’s emergency room because “we were scared I was going to go into a coma or worse.”

There, hospital staffers suggested Vandiver join the program. She eventually began traveling to specialists in Albuquerque for often weekly visits.

The program covered travel and hotel costs for the family. After months of checkups, she had a planned delivery of Ezra, who’s now a healthy 6-month-old. The boy watched his mother’s smile as she talked.

Without the program, Vandiver likely would have delivered at home and been airlifted out — possibly to the smaller Raton hospital.

Raton’s Miners Colfax is a small critical access hospital that recently closed its intensive care unit. The hospital sits just off Interstate 25, less than 10 miles south of the Colorado border, and its patients can be transient, Chief Nursing Officer Rhonda Moniot said. Maintaining the hospital’s obstetric program “is not easy, financially it’s not easy,” she said.

Moms from the area “don’t always seek care when they need to,” she said. Substance use disorders are common, she said, and those babies are often delivered under emergency conditions and prematurely.

“If we can get them in that first trimester … we have healthier outcomes in the end,” Moniot said, pulling up a spreadsheet on her computer.

At Raton’s hospital, 41% of mothers who gave birth before the RMOMS program began failed to show up for their first-trimester prenatal exams. But over two years — even as the covid-19 pandemic scared many patients away from seeking care — the number dropped to only 25% of mothers missing prenatal checkups during their first three months of pregnancy.

“I was, like, oh my God, it really made a difference,” said Moniot, who helped launch the program at Miners Colfax in 2019.

‘Let’s Not Let It Die’

Just a few weeks before Davila’s checkup in Clayton, the New Mexico program’s executive director, Colleen Durocher, traveled nearly 1,600 miles east to Capitol Hill to lobby for money.

Durocher said she cornered HRSA’s Morris at an evening event while in Washington, D.C. She said she told him the program is working but that the one year of planning plus three years of implementation paid for by the federal government was not enough.

“Let’s not let it die,” Durocher said. “It would be a real waste to let those successes just end.”

By April, Sen. Martin Heinrich (D-N.M.) said he was impressed by the program’s “lifesaving” work and asked for $1 million in the federal budget for fiscal year 2024. But the money, if approved, would likely not arrive before Durocher runs out of funding in late summer.

As the August deadline looms, Durocher said one obvious option would be to simply extend the grant. HRSA spokesperson Elana Ross said the agency cannot extend funding for the program. Each site, though, can reapply by offering to target a new population, include new hospitals or clinics, or provide services in a new area.

Of the 10 regional programs across the country, the one in New Mexico and two others are slated to end their pilots this year. Seven other programs — from Minnesota to Arkansas — are scheduled to end in 2025 or 2026. During their first two years, the 2019 awardees reported more than 5,000 women received medical care, and all three recorded a decrease in preterm births during the second year of implementation, according to HRSA.

The three initial programs also expanded their patient navigation programs to connect “hundreds of women to emotional support, insurance coverage, and social services, such as transportation and home visiting,” agency spokesperson Ross wrote in an email.

New Mexico Medicaid’s interim Director Lorelei Kellogg said her agency would like to “emulate” the program’s care coordination among hospitals and health staff in other areas of the state but also alter it to work best for different Indigenous and tribal cultures as well as African American partners.

There is money in the state’s budget to pay for patient navigators or community health workers, but there are no funds dedicated to support the maternity program, she said.

In the meantime, the program’s funding is set to run out just days before Davila’s baby is due in early September. In the coming months, Davila, like many mothers with an uncomplicated pregnancy, will have monthly prenatal telehealth visits, then biweekly and, as her due date nears, weekly.

“It’s nicer to be able to just pop in,” she said, adding that “it would be harder for the community” if the program didn’t exist.

Still, Davila may be one of the last moms to benefit from it.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

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 formal end May 11 of the national public health emergency for covid-19 will usher in lots of changes in the way Americans get vaccines, treatment, and testing for the coronavirus. It will also change the way some people get their health insurance, with millions likely to lose coverage altogether.

Meanwhile, two FDA advisory committees voted unanimously this week to allow the over-the-counter sale of a specific birth control pill. Advocates of making the pill easier to get say it could remove significant barriers to the use of effective contraception and prevent thousands of unplanned pregnancies every year. The FDA, however, must still formally approve the change, and some of its staff scientists have expressed concerns about whether teenagers and low-literacy adults will be able to follow the directions without the direct involvement of a medical professional.

This week’s panelists are Julie Rovner of KFF Health News, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, Tami Luhby of CNN, and Margot Sanger-Katz of The New York Times.

Panelists

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Tami Luhby
CNN

@luhby

Read Tami's stories

Margot Sanger-Katz
The New York Times

@sangerkatz

Read Margot's stories

Among the takeaways from this week’s episode:

• The formal public health emergency may be over, but covid definitely is not. More than 1,000 people in the United States died of the virus between April 19 and April 26, according to the Centers for Disease Control and Prevention. While most Americans have put covid in their rearview mirrors, it remains a risk around the country.
• The Senate Finance Committee held a hearing on “ghost networks,” lists of health professionals distributed by insurance companies who are not taking new patients or are not actually in the insurance company’s network. Ghost networks are a particular problem in mental health care, where few providers take health insurance at all.
• Another trend in the business of health care is primary care practices being bought by hospitals, insurance companies, and even Amazon. This strategy was popular in the 1990s, as health systems sought to “vertically integrate.” But now the larger entities may have other reasons for having their own networks of doctors, including using their patients to create revenue streams.
• Court battles continue over the fate of the abortion pill mifepristone, as a federal appeals court in New Orleans prepares to hear arguments about a lower-court judge’s ruling that would effectively cancel the drug’s approval by the FDA. In West Virginia, the maker of the generic version of the drug is challenging the right of the state to ban medication approved by federal officials. At the same time, a group of independent abortion clinics from various states is suing the FDA to drop restrictions on how mifepristone can be prescribed, joining mostly Democratic-led states seeking to ensure access to the drug.

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

Julie Rovner: Slate’s “Not Every Man Will Be as Dumb as Marcus Silva,” by Moira Donegan and Mark Joseph Stern.

Joanne Kenen: The Baltimore Banner’s “Baltimore Isn’t Accessible for People With Disabilities. Fixing It Would Cost Over $650 Million,” by Hallie Miller and Adam Willis.

Tami Luhby: CNN’s “Because of Florida Abortion Laws, She Carried Her Baby to Term Knowing He Would Die,” by Elizabeth Cohen, Carma Hassan, and Amanda Musa.

Margot Sanger-Katz: The New Yorker’s “The Problem With Planned Parenthood,” by Eyal Press.

Also mentioned in this week’s episode:

• CNN’s “Here’s How the End of the Covid-19 Public Health Emergency Affects You,” by Tami Luhby and Alex Leeds Matthews.
• The New York Times’ “Corporate Giants Buy Up Primary Care Practices at Rapid Pace,” by Reed Abelson.
• Vox’s “Independents Back Abortion Rights. They’re Less Sure Democrats Do,” by Rachel M. Cohen.

Click to open the transcript

Transcript: The Crisis Is Officially Ending, but Covid Confusion Lives On

[Editor’s note: This transcript, generated using transcription software, has been edited for style and clarity.]

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at 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, May 11, at 10:30 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 Tami Luhby, of CNN.

Tami Luhby: Hello.

Rovner: Margot Sanger Katz, The New York Times.

Sanger-Katz: Good morning.

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

Joanne Kenen: Hi, everybody.

Rovner: So the news on the debt ceiling standoff, just so you know, is that there is no news. Congressional leaders and White House officials are meeting again on Friday, and we still expect to not see this settled until the last possible minute. But there was plenty of other health news. We will start with the official end of the U.S. public health emergency for covid. We have talked at some length about the Medicaid unwinding that’s now happening and a potential to end some telehealth service reimbursement. But there’s a lot more that’s going away after May 11. Tami, you’ve been working to compile everything that’s about to change. What are the high points here?

Luhby: Well, there are a lot of changes depending on what type of insurance you have and whether we’re talking about testing, treatment, or vaccines. So I can give you a quick rundown. We wrote a visual story on this today. If you go to CNN.com, you’ll find it on the homepage right now.

Rovner: I will link to it in the show notes for the podcast.

Luhby: Basically, many people will be paying more for treatments and for tests. However, vaccines will generally remain free for almost everyone. And basically, if you look at our story, you’ll see the color-coded guide as to how it may impact you. But basically, testing — at-home tests are no longer guaranteed to be free. So if you’ve been going to your CVS or somewhere else to pick up your eight tests a month, your insurer may opt to continue providing it for free, but I don’t think many will. And then for lab tests, again, it really depends. But if you have Medicaid, all tests will be free through 2024. However, if you have private insurance or Medicare, you will probably have to start paying out-of-pocket for tests that are ordered by your provider. Those deductibles, those pesky deductibles, and copays or coinsurance will start kicking in again. And for treatments, it’s a little bit different again. The cost will vary by treatment if you have Medicare or private insurance. However, Paxlovid and treatments that are purchased by the federal government, such as Paxlovid, will be free as long as supplies last. Now, also, if you’re uninsured, there is a whole different situation. It’ll be somewhat more difficult for them. But there are still options. And, you know, the White House has been working to provide free treatments and vaccines for them.

Rovner: So if you get covid, get it soon.

Luhby: Like today. Right, exactly. Yeah, but with vaccines, even though, again, they’re free as long as the federal supplies last — but because of the Affordable Care Act, the CARES Act, and the Inflation Reduction Act, people with private insurance, Medicare, and Medicaid will actually continue to be able to get free vaccines after the federal supplies run out.

Rovner: After May 11.

Luhby: It’s very confusing.

Rovner: It is very confusing. That’s why you did a whole graphic. Joanne, you wanted to add something.

Kenen: And the confusion is the problem. We have lots of problems, but, like, last week, we talked a little bit about this. You know, are we still in an emergency? We’re not in an emergency the way we were in 2020, 2021, but it’s not gone. We all know it’s much, much better, but it’s not gone. And it could get worse again, particularly if people are confused, if people don’t know how to test, if people don’t know that they can still get things. The four of us are professionals, and, like, Tami’s having to read this complicated color-coded chart — you know, you get this until September 2024, but this goes away in 2023. And, you know, if you have purple insurance, you get this. And if you have purple polka-dotted insurance, you get that. And the lack of clarity is dangerous, because if people don’t get what they’re eligible for because they hear “emergency over, everything — nothing’s free anymore” — we’re already having trouble with uptake. We don’t have enough people getting boosters. People don’t know that they can get Paxlovid and that it’s free and that it works. We are still in this very inadequate response. We’re not in the terrifying emergency of three years ago, but it’s not copacetic. You know, it’s not perfect. And this confusion is really part of what really worries me the most. And the people who are most likely to be hurt are the people who are always most likely to be hurt: the people who are poor, the people who are in underserved communities, the people who are less educated, and it’s disproportionately people in minority communities. We’ve seen this show before, and that’s part of what I worry about — that there’s a data issue that we’ll get to whenever Julie decides to get to it, right?

Rovner: Yeah, I mean, and that’s the thing. With so much of the emergency going away, we’re not really going to know as much as we have before.

Sanger-Katz: In some ways, how you feel about this transition really reflects how you feel about the way that our health care system works in general. You know, what happened for covid is —and I’m oversimplifying a little bit — is we sort of set up a single-payer system just for one disease. So everyone had access to all of the vaccines, everyone had access to all of the tests, everyone had access to all of the treatments basically for free. And we also created this huge expansion of Medicaid coverage by no longer allowing the states to kick people out if they no longer seem to be eligible. So we had the kind of system that I think a lot of people on the left would like to see, not just for one disease but for every disease, where you have kind of more universal coverage and where the cost of obtaining important treatments and prevention is zero to very low. And this is definitely going to be a bumpy transition, but it’s basically a transition to the way our health care system works for every other disease. So if you are someone who had some other kind of infectious disease or a chronic disease like cancer, rheumatoid arthritis, whatever, you’ve been sort of dealing with all of this stuff the whole time — that you have to pay for your drugs; that, you know, that testing is expensive; that it’s confusing where you get things; that, you know, there’s a lot of complexity and hoops you have to jump through; that a lot depends on what kind of insurance you have; that what kind of insurance you can get depends on your income and other demographic characteristics. And so I find this transition to be pretty interesting because it seems like it would be weird for the United States to just forever have one system for this disease and another system for every other disease. And of course, we do have this for people who are experiencing kidney disease: They get Medicare, they get the government system, regardless of whether they would otherwise be eligible for Medicare.

Rovner: We should point out that Congress did that in 1972. They haven’t really done it since.

Kenen: And when it was much more rare than it was today.

Rovner: And when people didn’t live very long with it mostly.

Kenen: We didn’t have as much diabetes either.

Sanger-Katz: But anyway, I just think this transition kind of just gives us a moment to reflect on, How does the system work in general? How do we feel about how the system works in general? Are these things good or bad? And I agree with everything that Joanne said, that the confusion around this is going to have public health impacts as relates to covid. But we have lots of other diseases where we just basically have the standard system, and now we’re going to have the standard system for covid, too.

Kenen: You could have gone to the hospital with the bad pneumonia and needed oxygen, needed a ventilator, and when they tested you, if you had covid, it was all free. And if you had, you know, regular old-fashioned pneumonia, you got a bill. I agree with everything Margot said, but it’s even that silly. You could have had the same symptoms in your same lungs and you had two different health care systems and financing systems. None of us have ever thought anything made sense.

Rovner: Yes, well, I actually —

Kenen: That’s why we have a podcast. Otherwise, you know —

Sanger-Katz: And also the way that the drugs and vaccines were developed was also totally different, right? With the government deeply involved in the technology and development, you know, funding the research, purchasing large quantities of these drugs in bulk in advance. I mean, this is just not the way that our system really works for other diseases. It’s been a very interesting sort of experiment, and I do wonder whether it will be replicated in the future.

Luhby: Right. But it was also clear that this is not the beginning of the pushback. I mean, Congress has not wanted to allocate more money, you know, and there’s been a lot of arguments and conflicts over the whole course of this so-called single-payer system, or this more flexible system. So the U.S.’ approach to health care has been pushing its way in for many months.

Rovner: I naively, at the beginning of the pandemic, when we first did this and when the Republicans all voted for it, it’s like, let’s have the federal government pay the hospitals for whatever care they’re providing and make everything free at point of service to the patient — and I thought, Wow, are we going to get used to this and maybe move on? And I think the answer is exactly the opposite. It’s like, let’s get rid of it as fast as we possibly can.

Kenen: There’s money that the government has put in. I believe it is $5 billion into the next generation of vaccines and treatments, because the vaccine we have has certainly saved many lives. But as we all know, it’s not perfect. You know, it’s preventing death, but not infection. It’s not ending circulation of the disease. So we need something better. This debt ceiling fight, if the people in the government could spend all $5 billion today — like we were joking, if you want to get covid, if you’re going to get covid, get it today — I mean, if they could, they would spend all $5 billion of it today, too, because that could be clawed back. I mean, that’s — it’s going to be part of the coming fight.

Luhby: But the question is, even if they develop it, will anyone take it, or will enough people take it? That’s another issue.

Rovner: Well, since we’re sort of on the subject, I’m going to skip ahead to what I was going to bring up towards the end, which I’m calling “This Week in Our Dysfunctional Health System.”

Kenen: We could call it that way every week.

Rovner: Yes, that’s true. But this is particularly about how our health system doesn’t work. First up is “ghost networks.” Those are where insurers provide lists of health care providers who are not, in fact, available to those patients. A quote “secret shopper survey” by the staff of the Senate Finance Committee found that more than 80% of mental health providers found in insurance directories in 12 plans from six states were unreachable, not accepting new patients, or not actually in network. This is not a new problem. We’ve been hearing about it for years and years. Why does it persist? One would think that you could clean up your provider directory. That would be possible, right?

Kenen: Didn’t they legislate that, though? Didn’t they say a few years ago you have to clean it up? I mean, there are going to be some mistakes because there’s, you know, many, many providers and people will make changes or leave practices or … [unintelligible] …  jobs or whatever. But I thought that they had supposedly, theoretically, taken care of this a couple years ago in one of the annual regulations for ACA or something.

Rovner: They supposedly, theoretically, took care of the hospitals reporting their prices in a way that consumers can understand, too. So we’ve discovered in our dysfunctional health care system that Congress passing legislation or HHS [the Department of Health and Human Services] putting out rules doesn’t necessarily make things so.

Kenen: Really?

Rovner: Yeah. I just — this was one that I had thought, Oh, boy, I have a whole file on that from like the 1990s.

Sanger-Katz: It’s a huge problem, though. I mean —

Rovner: Oh, it is.

Sanger-Katz: You know, we have a system where, for large groups of Americans, you are expected to shop for a health insurance plan. If you’re purchasing a marketplace plan for yourself, if you are purchasing a Medicare Advantage plan when you become eligible for Medicare, and in many cases, if you have a choice of employer plans, you know, you’re supposed to pick the plan that’s best for you. And we have a system that tells people that having those kinds of choices is good and maximizes the benefits to people, to be able to pick the best plan. But for a lot of people, being able to have the doctors and hospitals that they use or to have a choice of a wide range of doctors for various problems, including mental health services, is a huge selling point of one plan versus another. And again, you have these ghost networks, when you have this lack of transparency and accuracy of this information, it just causes people to be unable to make those good choices and it undermines the whole system of market competition that underpins all of this policy design. I think you can argue that there are not a million gazillion people who are actually shopping on the basis of this. But I do think that knowing whether your medical providers are covered when you’re choosing a new health care plan is actually something that a lot of people do look into when they are choosing a health insurance plan. And discovering that a doctor that you’ve been seeing for a long time and whose relationship you really value and whose care has been important to you is suddenly dishonestly represented as a part of an insurance plan that you’ve selected is just, you know, it’s a huge disappointment. It causes huge disruptions in people’s care. And I think the other thing that this study highlighted is that health insurance coverage for mental health services continues to be a very large problem. There has been quite a lot of legislation and regulation trying to expand coverage for mental health care. But there are these kind of lingering problems where a lot of mental health care providers simply don’t accept insurance or don’t accept very many patients who have insurance. And so I think that this report did a good job of highlighting that place where I think these problems are even worse than they are with the health care system at large. It’s just very hard to find mental health care providers who will take your insurance.

Rovner: And I would say, when you’re in mental health distress or you have a relative who’s in mental health distress, the last thing you need is to have to call 200 different providers to find one who can help you.

Kenen: A lot of the ones that are taking insurance are these online companies, and the good thing is that they’re taking insurance and that there may be convenience factors for people, although there’s also privacy and other factors on the downside. But there have been reports about, your data is not private, and I have no idea how you find out which company is a good actor in that department and which company is just selling identifiable data. I mean, I think it was The Washington Post that had a story about that a couple of weeks ago. You know, you click in on something — straight to the data broker. So, yeah, you get insurance coverage, but at a different price.

Rovner: Well, overlaid over all of this is consolidation, this time at the primary care level of health care. Margot, your colleague Reed Abelson had a big story this week on primary care practices being bought up by various larger players in the health care industry, including hospitals, insurance companies, pharmacy chains, and even Amazon. These larger entities say this can act as a move towards more coordinated, value-based care, which is what we say we all want. But there’s also the very real possibility that these giant, vertical, mega medical organizations can just start to name their own price. I mean, this is something that the FTC [Federal Trade Commission] in theory could go after but has been kind of loath to and that Congress could go after but has also been kind of loath to.

Sanger-Katz: Yeah, in some ways we’ve seen this movie before. There was a big wave of primary care acquisitions that happened, I think, in the 1990s by hospitals. And the hospitals learned pretty quickly that primary care doctors are kind of a money-losing proposition, and they divested a lot. But I think what Reed documented so nicely is that the entities that are buying primary care now are more diverse and they have different business strategies. So it’s not just hospitals who are sort of trying to get more patients referred to their higher-profit specialists, but it’s also Medicare Advantage insurers who benefit from being able to tell the primary care doctors to diagnose their patients with lots of diseases that generate profits for the plan, and it’s other kinds of groups that see primary care as kind of the front door to other services that can be revenue-generating. And it’s very — it will be very interesting to see what the effects of these will be and whether these will turn out to be good business decisions for these new entities and of course also whether it will turn out to be good for patient care.

Rovner: Yeah, I remember in the 1990s when hospitals were buying up doctor practices, the doctors ended up hating it because they were asked to work much harder, see patients for a shorter period of time, and some of them actually — because they were now on salary rather than being paid for each patient — were cutting back on, you know, in general, on the amount of care they were providing. And that was what I think ended up with a lot of these hospitals divesting. It didn’t work out the way the hospitals hoped it would. But as you point out, Margot, this is completely different, so we will — we will see how this moves on. All right. Let’s go back a little bit. We’re going to talk about abortion in a minute. But first, something that could prevent a lot of unintended pregnancies: On Wednesday, an advisory committee for the Food and Drug Administration — actually two advisory committees — unanimously recommended that the agency approve an over-the-counter birth control pill. This has been a long time coming here in the U.S., even though pills like these are available without prescription in much of Europe and have been for years. But while the FDA usually follows the recommendations of its advisory committees, we know that some FDA scientists have expressed concerns about over-the-counter availability. So what’s the problem with giving women easier access to something that so many depend on?

Kenen: There are trade-offs. And there are — some of the scientists at the FDA are more conservative than others about, What if the woman doesn’t understand how to take the pill properly? Things like that. I mean, obviously, if we go the over-the-counter route, as other countries are doing, there have to be very simple, easy-to-understand explanations in multiple languages. Pharmacists should be able to explain it like, you know, “You have to take it every day, and you have to take it at approximately the same time every day,” and things like that. So, you know, obviously not taking it right doesn’t protect you as much as taking it right. But there are a lot of people who will be able to get it. You know, getting a prescription is not always the easiest thing in the world. Or if you’re lucky, you just click on something and somebody calls your doctor and gets you a refill. But that doesn’t always work and not everybody has access to that, and you have to still see your doctor sometimes for renewals. So if you’re a working person who doesn’t have sick leave and you have to take time off from work every three months to get a refill or you have to hire child care or you have to take three buses — you know, it takes a whole day, and then you sit in a waiting room at a clinic. I mean, our health system is not patient-friendly.

Rovner: I was going to say, to go back to what Tami was talking about earlier — if pills are available over the counter, it’s going to depend on, you know, what your insurance is like, whether you would get it covered.

Kenen: The cost.

Rovner: That’s right. And it could end up being —

Kenen: But I don’t think the FDA is concerned about that.

Rovner: No, they’re not. That’s not their job.

Kenen: The pill is pretty safe, and these are lower-dose ones than the pills that were invented, you know, 50 years ago. These are lower-dose, safer drugs with fewer side effects. But I mean, there’s concern about the rare side effect, there’s concern about people not knowing how to take it, all that kind of stuff. But Julie just mentioned the cost of coverage is a separate issue because under the ACA it’s covered. And if it becomes over the counter, the mechanism for getting that covered is, at this point, unclear.

Sanger-Katz: But we do have a system now where, for a lot of women, obtaining birth control pills depends on being able to get a doctor’s appointment on a regular basis. I think, you know, this is not standard practice, but I do think that there are a lot of OB-GYNs who basically won’t write you for a birth control pill unless you come in on a regular basis to receive other kinds of health screenings. And I think many of them do that with good intentions because they want to make sure that people are getting Pap smears and other kinds of preventive health services. But on the other hand, it does mean that there are a lot of women who, if they don’t have time or they can’t afford to come in for regular doctor’s appointments, lose access to birth control. And I think over-the-counter pills is one way of counteracting that particular problem.

Rovner: And I think that’s exactly why so many of the medical groups are urging this. During the more than a decade-long fight over making the morning-after pill over the counter, the big hang-up was what to do about minors. Even President Obama, a major backer of women’s reproductive health rights, seemed unhappy at the idea of his then-barely teenage daughters being able to get birth control so easily and without notifying either parent. It seems unimaginable that we’re not going to have that same fight here. I mean, literally, we spent six years trying to figure out what age teens could be to safely buy morning-after pills, which are high doses of basically these birth control pills. I’m actually surprised that we haven’t really seen the minor fight yet.

Kenen: I think everyone’s waiting for somebody else to do it first. I mean, like Julie, I wasn’t expecting to hear more about age limitations, and that’ll probably come up when the FDA acts, because I think the advisory committee just wanted to — they were pretty strong saying, “Yeah, make this OTC.”

Sanger-Katz: I also think the politics around emergency contraception are a little bit different because I think that, while physicians understand that those pills are basically just high-dose birth control pills and that they work in just the same way as typical contraception, I think there’s a perception among many members of the public that because you can take them after unprotected sex, that they might be something closer to an abortion. Now, that is not true, but because I think that is a common misperception, it does lead to more discomfort around the availability of those pills, whereas birth control pills — while I think there are some people who object to their wide dissemination and certainly some who are concerned about them in the hands of children, I think they are more broadly accepted in our society.

Rovner: We obviously are going to see, and we’ll probably see fairly soon. We’re expecting, I guess, a decision from the FDA this summer, although with the morning-after pill we expected a decision from FDA that lingered on for many months, in some cases many years.

Kenen: And I think it’s at least hypothetically possible that states will not do what the FDA says. Say the FDA says they can be over the counter with no age limitations. I can see that becoming a fight in conservative states. I mean, I don’t know exactly the mechanism for how that would fall, but I could certainly think that somebody is going to dream up a mechanism so that a 12-year-old can’t get this over the counter.

Rovner: I want to move to abortion because first up is the continuing question over the fate of the abortion pill, which we get to say at this point: not the same as the emergency contraceptive pill, which, as Margot said, is just high-dosage regular birth control pills. Needless to say, that’s the one that we’re having the current court action over. And there was even more action this week, although not from that original case, which will be heard by the Court of Appeals later in this month. In West Virginia, a judge declined to throw out a case brought by GenBioPro. They are the maker of the generic version of mifepristone, the abortion pill. That generic, which accounts for more than half the market, would be rendered unapproved even under the compromise position of the Court of Appeals because it was approved after the 2016 cutoff period. Remember, the Court of Appeals said, We don’t want to cancel the approval, but we want to roll it back to the date when FDA started to loosen the restrictions on it. So, in theory, there would be no generic allowed, but that’s actually not even what the West Virginia lawsuit is about; it’s about challenging the state’s total abortion ban as violating the federal supremacy of the FDA over state laws. Joanne, that’s what sort of you were talking about now with contraceptives, too. And this is the big unanswered question: Can states basically overrule the FDA’s approval and the FDA’s approval for even an age limit?

Kenen: Well, I mean, I’m not saying they can, but I am saying that I don’t know where the question will come down. Go back to the regular birth control; I can certainly see conservative states trying to put age limits on it. And I don’t know how that’ll play out legally. But this is a different issue, and this is why the abortion pill lawsuits are not just about the abortion pill. They’re about drug safety and drug regulation in this country. The FDA is the agency we charge with deciding whether drugs are safe and good for human beings, and not the system of politicians and state legislators in 50 different states replacing their judgment. So obviously, it’s more complicated, because it’s abortion, but one of several bottom lines in this case is who gets to decide: the FDA or state legislature.

Rovner: And right: Do states get to overrule what the federal Food and Drug Administration says? Well, I —

Kenen: Remember, some states have had — you know, California’s had stricter regulations on several health things, you know, and that’s been allowed that you could have higher ceilings for various health — you know, carcinogenics and so forth. But they haven’t fundamentally challenged the authority of the FDA.

Rovner: Yet. Well, since confusion is our theme of the week, also this week a group of independent abortion clinics led by Whole Woman’s Health, which operates in several states, filed suit against the FDA, basically trying to add Virginia, Kansas, and Montana to the other 18 states that sued to force FDA to further reduce the agency’s current restrictions on mifepristone. A federal judge in Washington state ruled — the same day that Texas judge did that mifepristone should have its approval removed — judge in Washington said the drug should become even more easily available. In the real world, though, this is just sowing so much confusion that nobody knows what’s allowed and what isn’t, which I think is kind of the point for opponents, right? They just want to make everybody as confused as possible, if they can’t actually ban it.

Sanger-Katz: I think they actually want to ban it. I mean, I think that’s their primary goal. I’m sure there are some that will settle for confusion as a secondary outcome. I think just this whole mess of cases really highlights what a weird moment we are, where we’re having individual judges and individual jurisdictions making determinations about whether or not the FDA can or can’t approve the safety and efficacy of drugs. You know, as Joanne said, we’ve just had a system in this country since the foundation of the FDA where they are the scientific experts and they make determinations and those determinations affect drug availability and legal status around the country. And this is a very unusual situation where we’re seeing federal courts in different jurisdictions making their own judgments about what the FDA should do. And I think the Texas judge that struck down the approval of mifepristone, at least temporarily, has come in for a lot of criticism. But what the judge in Washington state did is sort of a flavor of the same thing. It’s telling the FDA, you know, how they should do their business. And it’s a weird thing.

Rovner: It is. Well, one last thing this week, since we’re talking about confusion, and the public is definitely confused, according to two different polls that are out this week — on the one hand, a Washington Post-ABC News poll found that a full two-thirds of respondents say mifepristone, the abortion pill, should stay on the market, and more than half say they disagree with the Supreme Court’s overturn of Roe v. Wade, including 70% of independents and more than a third of Republicans. Yet, in focus groups in April, more than a third of independents couldn’t differentiate Democrats’ position on abortion from Republicans’. As reported by Vox, one participant said, quote, “I really haven’t basically heard anything about which party is leaning toward it and which one isn’t.” When pressed, she said, “If I had to guess, I would say Democrat would probably be against it and Republican would probably be for it.” Another participant said she thought that Joe Biden helped get the Supreme Court judges who overturned Roe. We really do live in a bubble, don’t we? I think that was sort of the most mind-blowing thing I’ve read since — all the months since Roe got overturned, that there are people who care about this issue who have no idea where anybody stands.

Sanger-Katz: I think it’s just a truth about our political system that there are a lot of Americans who are what the political scientists call low-information voters. These are people who are just not following the news very closely and not following politics very closely. And they may have a certain set of opinions about issues of the day, but I think it is a big challenge to get those people aware of where candidates stand on issues of concern to them and to get them activated. And it doesn’t really surprise me that independent voters are the ones who seem to be confused about where the parties are, because they’re probably the least plugged into politics generally. And so, for Democrats, it does seem like this lack of information is potentially an opportunity for them, because it seems like when you ask voters what they want on abortion, they want things that are more aligned with Democratic politicians’ preferences than Republicans’. And so it strikes me that perhaps some of those people in the focus group who didn’t know who stood for what, maybe those are gettable voters for the Democratic Party. But I think — you know, we’re about to go into a very heated campaign season, you know, as we go into the presidential primaries and then the general election in which there are going to be a lot of ads, a lot of news coverage. And, you know, I think abortion is very likely to be a prominent issue during the campaigns. And I think it is almost certainly going to be a major goal of the Biden presidential reelection campaign to try to make sure that these people know where Biden stands relative to abortion, because it is an issue that so many voters agree with him on.

Rovner: And it makes you see, I mean, there’s a lot of Republicans who are trying to sort of finesse this issue now and say, you know, “Oh, well, we’re going to restrict it, but we’re not going to ban it,” or, “We have all these exceptions” that are, of course, in practice, you can’t use. Obviously, these are the kinds of voters who might be attracted to that. So we will obviously see this as it goes on.

Kenen: But Julie, do you remember whether they were actually voters? Because I had the same reaction to you: like, of all the things to not be sure of, that one was pretty surprising. But we also know that in places like Kansas where, you know, where there are not that many Democrats, these referenda won. Voters have supported abortion rights in the 2022 elections and in these state referenda. So independents must be voting with the —

Rovner: I was going to say, I think if you’re doing —

Kenen: Something isn’t totally — something is not totally adding up there.

Rovner: If you’re doing a focus group for politics, one presumes that you get voters. So, I mean, I think that was — that was the point of the focus group. But yeah, it’s —

Kenen: Or people who say they’re voters.

Rovner: Or people who say they’re voters. That is a different issue. All right. Well, something not that confusing: Now it’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at 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, I picked a story from CNN by my colleagues on the health team. It’s titled “Because of Florida Abortion Laws, She Carried Her Baby to Term Knowing He Would Die,” by Elizabeth Cohen, Carma Hassan, and Amanda Musa. And I have to say that when I first read this story, I couldn’t get through it, because it was so upsetting. And then when I selected it as an extra credit, I had to read it in full. But it’s about a family in Florida whose son was born without kidneys. They knew that he was going to die. And it’s about all of the effects from everything from, you know, the mother, Deborah Dorbert, on her physically and emotionally. But it also, you know, talked about the family and, you know, the effect on the marriage and the effect — which was just so upsetting — was on the 4-year-old son, who became very attached. I don’t think they even knew — well, it wasn’t a girl. It was actually a boy. But for some reason, this older son felt that it was a girl and just kept saying, like, “My sister is going to do X, Y, Z.” And, you know, how did the parents break it to him? Because he saw that his mother was, you know, pregnant and getting larger. And, you know, it was just figuring out how to break it to him that no baby was coming home. So the details are heart-wrenching. The quotes in the third paragraph: “‘He gasped for air a couple of times when I held him,’ said Dorbert. ‘I watched my child take his first breath, and I held him as he took his last one.’” So, you know, these are things that, you know — and we just talked about how the states are arguing over what exceptions there should be, if any, you know, and these are the stories that the legislators don’t think about when they pass these laws.

Rovner: I think I said this before because we’ve had a story like this almost every week. This one was particularly wrenching. But I think the one thing that all these stories are doing is helping people understand, particularly men, that there are complications in pregnancy, that they’re not that rare, that, you know, that they sort of throw off and say, “Oh, well, that’s, you know, one in a million,” — It’s not one in a million. It’s like one in a thousand. That’s a lot of people. So I mean, that’s why there are a lot of these stories, because there are a lot of pregnancies that don’t go as expected.

Luhby: Right. And it really shows the chilling effect on doctors because, you know, you would say, “Oh, it’s simple: life of the mother or, you know, life of the fetus” or something like that. That seems pretty straightforward, but it isn’t. And these doctors, in cases where, you know, other cases where it is the life of the mother, which seem, again, very straightforward, the doctors are not willing to do anything because they’re afraid.

Rovner: I know. Joanne.

Kenen: This is a story from The Baltimore Banner that has a very long title. It’s by Hallie Miller and Adam Willis, and it’s called “Baltimore Isn’t Accessible for People With Disabilities. Fixing It Would Cost Over $650 Million.” Baltimore is not that big a city. $650 million is a lot of curbs and barriers. And there’s also a lot of gun violence in Baltimore. If you drive around Baltimore, and I work there a few days a week, you see lots of people on walkers and scooters and wheelchairs because many of them are survivors of gun violence. And you see them struggling. And there were quotes from people saying they, you know, were afraid walking near the harbor that they would fall in because there wasn’t a path for them. It is not invisible, but we treat it like it’s invisible. And it’s been many years since the Americans with Disabilities Act was passed, and we still don’t have it right. It’s a — this one isn’t confusion like everything else we talked about today. I loved Margot’s phrase about confusion as a secondary outcome. I think you should write a novel with that title. But it’s — this isn’t confusion. This is just not doing the right thing for people who are — we’re just not protecting or valuing.

Rovner: And I’d say for whom there are laws that this should be happening. Margot.

Sanger-Katz: I had another story about abortion. This one was in The New Yorker, called “The Problem With Planned Parenthood,” by Eyal Press. The story sort of looked at Planned Parenthood, you know, which is kind of the largest abortion provider in the country. It’s — I mean, it’s really a network of providers. They have all these affiliates. They’re often seen as being more monolithic than perhaps they are. But this story argued that people who were operating independent abortion clinics, who do represent a lot of the abortion providers in the country as well, have felt that Planned Parenthood has been too cautious legally, too afraid of running afoul of state laws, and so that has led them to be very conservative and also too conservative from the perspective of business, and that there is a view that Planned Parenthood is not serving the role that it could be by expanding into areas where abortion is less available. I thought it was just interesting to hear these criticisms and hoped to understand that the community of abortion providers are, you know, they’re diverse and they have different perspectives on how abortion access should work and what kinds of services should be provided in different settings. And they also view each other as business competition in some cases. I mean, a lot of the complaints in this article had to do with Planned Parenthood opening clinics near to independent clinics and kind of taking away the business from them, making it harder for them to survive and operate. Anyway, I thought it was a very interesting window into these debates, and it did mesh with some of my reporting experience, particularly around the legal cautiousness. I did a story before the Dobbs decision came down from the Supreme Court where Planned Parenthood in several states had just stopped offering abortions even before the court had ruled, because they anticipated that the court would rule and they just didn’t want to make any mistake about running afoul of these laws such that, you know, women were denied care that was still legal in the days leading up to the Supreme Court decision.

Rovner: Yeah, it’s a really good story. Well, my story is kind of tangentially about abortion. It’s from Slate, and it’s called “Not Every Man Will Be as Dumb as Marcus Silva,” by Moira Donegan and Mark Joseph Stern. And it’s about a case from Texas, of course, that we talked about a couple of weeks ago, where an ex-husband is suing two friends of his ex-wife for wrongful death, for helping her get an abortion. Well, now the two friends have filed a countersuit claiming that the ex-husband knew his wife was going to have an abortion beforehand because he found the pill in her purse and he put it back so that he could use the threat of a lawsuit to force her to stay with him. It feels like a soap opera, except it is happening in real life. And my first thought when I read this is that it’s going to make some great episode of “Dateline” or “20/20.” That is our show, as always.

Kenen: Or, not “The Bachelor.”

Rovner: Yeah, but not “The Bachelor.” 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 ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me. I’m still there. I’m at @jrovner. Joanne?

Kenen: @JoanneKenen.

Rovner: Tami.

Luhby: @Luhby.

Rovner: Margot.

Sanger-Katz: @sangerkatz.

Rovner: We will be back in your feed next week, hopefully with a little less confusion. Until then, be healthy.

Credits

Francis Ying
Audio producer

Stephanie Stapleton
Editor

To hear all our podcasts, click here.

And subscribe to KFF Health News’ ‘What the Health? on Spotify, Apple Podcasts, Stitcher, Pocket Casts, or wherever you listen to podcasts.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

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.

If Congress fails to raise the nation’s debt ceiling in the next few months, the U.S. could default on its debt for the first time in history. Republicans in Congress, however, say they won’t agree to pay the nation’s bills unless Democrats and President Joe Biden agree to deep cuts to health and other programs. Among the proposals in a bill House Republicans passed April 26 is the imposition of new work requirements for adults who receive Medicaid.

Meanwhile, many of the states passing restrictions on abortion are also passing bills to restrict the ability of trans people to get health care. The two movements — both largely aimed at conservative evangelicals, a key GOP constituency — have much in common.

This week’s panelists are Julie Rovner of KFF Health News, Jessie Hellmann of CQ Roll Call, Shefali Luthra of The 19th, and Sarah Karlin-Smith of the Pink Sheet.

Panelists

Jessie Hellmann
CQ Roll Call

@jessiehellmann

Read Jessie's stories

Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Among the takeaways from this week’s episode:

• The Republican-controlled House’s proposal to raise the debt ceiling contains enough politically poisonous measures that the plan is a non-starter in the Senate. They include substantial funding cuts to major federal health programs, including the FDA and the National Institutes of Health — cuts that would force the federal government to cut back on grants and other funding.
• The proposal would also impose work requirements on adults enrolled in Medicaid — which covers low-income and disabled Americans, as well as pregnant women — and in the Supplemental Nutrition Assistance Program, which helps needy families buy food. Under the plan, the government would save money by cutting the number of people helped. But most beneficiaries cannot work or already do so. Experience shows the change would mostly affect people who struggle to report their work hours through what can be complicated online portals.
• Multiple congressional committees have released plans to fight high drug costs, promoting efforts to explore how pharmacy benefit managers make decisions about cost and access, as well as to encourage access to cheaper, generic drugs on the market. And during congressional testimony this week, the administrator of the Centers for Medicare & Medicaid Services, Chiquita Brooks-LaSure, said the agency would no longer issue warnings to hospitals that fail to comply with a law that requires them to post their prices, but instead would move directly to fining the holdouts.
• Also in news about cost-cutting legislation, a plan to address an expensive glitch in Medicare payments to hospital outpatient centers and physician offices is gaining steam on Capitol Hill. Hospital consolidation has helped increase costs in the health care system, and lawmakers are eager to keep health spending under control. But the hospital industry is ramping up advertising to make sure lawmakers think twice before legislating.
• In abortion news, it will likely be at least a year before the Supreme Court rules on whether the abortion pill mifepristone should remain accessible. Some justices suggested in last summer’s Dobbs decision, which overturned abortion rights, that they would leave further abortion questions to the states, yet the nation is finding that overturning a half-century of legal precedent is messy, to say the least. Meanwhile, reporting and polling are revealing just how difficult it is for doctors in states with abortion bans to determine what constitutes a “medical emergency” worthy of intervention, with a grim consensus emerging that apparently means “when a woman is near death.”

Also this week, Rovner interviews Renuka Rayasam, who wrote the latest KFF Health News-NPR “Bill of the Month” feature, about a pregnant woman experiencing a dangerous complication who was asked to pay $15,000 upfront to see one of the few specialists who could help her. If you have an outrageous or exorbitant 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: The Nation’s “The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban,” by Amy Littlefield.

Shefali Luthra: The Washington Post’s “The Conservative Campaign to Rewrite Child Labor Laws,” by Jacob Bogage and María Luisa Paúl.

Jessie Hellmann: Politico’s “Gun Violence Is Actually Worse in Red States. It’s Not Even Close,” by Colin Woodard.

Sarah Karlin-Smith: The Wall Street Journal’s “Weight-Loss Drugmakers Lobby for Medicare Coverage,” by Liz Essley Whyte.

Also mentioned in this week’s episode:

• In Oklahoma, a Woman Was Told to Wait Until She’s ‘Crashing’ for Abortion Care,” by Selena Simmons-Duffin.
• Anti-Trans Bills Have Doubled Since 2022. Our Map Shows Where States Stand,” by Annys Shin, N. Kirkpatrick, and Anne Branigin.

click to open the transcript

Transcript: Dancing Under the Debt Ceiling

KFF Health News’ ‘What the Health?’

Episode Title: Dancing Under the Debt Ceiling

Episode Number: 295

Published: April 27, 2023

[Editor’s note: This transcript, generated using transcription software, has been edited for style and clarity.]

Julie Rovner: Hello and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent at 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, April 27, at 10 a.m. As always, news happens fast — really fast this week — and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Good morning.

Rovner: Sarah Karlin-Smith, the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Later in this episode, we’ll have our KFF Health News-NPR “Bill of the Month” interview with Renuka Rayasam. This month’s patient had a happy ending medically, but a not-so-happy ending financially. But first, the news. We’re going to start this week with the budget and, to be specific, the nation’s debt ceiling, which will put the U.S. in default if it’s not raised sometime in the next several weeks, not to panic anyone. House Republicans, who have maintained all along that they won’t allow the debt ceiling to be raised unless they get spending cuts in return, managed to pass — barely — a bill that would raise the debt ceiling enough to get to roughly the middle of next year. It has no chance in the Senate, but it’s now the Republicans’ official negotiating position, so we should talk about what’s in it. It starts with a giant cut to discretionary spending programs. In health care that includes things like the National Institutes of Health, most public health programs, and the parts of the FDA that aren’t funded by user fees. I mean, these are big cuts, yes?

Hellmann: Yeah, it’s about a 14% cut to some of these programs. It’s kind of hard to know exactly what that would mean. But yeah, it’s a big cut and there would have to be, like, a lot of changes made, especially to a lot of health care programs, because that’s where a lot of spending happens.

Rovner: Yeah, I mean, sometimes they’ll agree on cuts and it’ll be like a 1% across the board, which itself can be a lot of money. But I mean, these are, these are sort of really deep cuts that would seriously hinder the ability of these programs to function, right?

Karlin-Smith: NIH for a number of years was operating on only getting budget increases that were not keeping up kind of with inflation and so forth. And they just finally, over the last few years, got back on track. Even though their budget seemed like it was going up, really, if you adjusted for inflation, it had been going down. And then when you have an agency like FDA, which, the line is always that they do an incredible amount of work on really a shoestring budget for the amount they regulate, so they never get — NIH sometimes gets, you know, that bipartisan popularity and does get those bigger increases back, and they never really get those big increases, so I think it would be harder for them also to get that back later on if they did get such big cuts.

Hellmann: There are like also a lot of health programs that just operate on flat funding from year to year, like Title X.

Rovner: Yeah, the family planning program.

Hellmann: And so obviously, like HHS said last year, We are only able to fund a certain number of providers, like, less than previously, because of inflation, and stuff like that. So obviously if you take a 14% cut to that, it would make it even harder.

Rovner: All right. Another major proposal in the package would institute or expand work requirements for people on food stamps and on Medicaid. Now, we’ve had work rules for people on welfare since the 1990s, but most people on Medicaid and food stamps, for that matter, either already work or can’t work for some reason. Why are the Republicans so excited about expanding or instituting work requirements?

Hellmann: I think there are a few reasons. No. 1, it’s a big money saver. The CBO [Congressional Budget Office] came out with their analysis this week showing that it would save the federal government about $109 billion. A lot of that would be shifted to the states because the way the bill is written, states would still be allowed to cover these individuals if they can’t prove that they’re working. But they’d have to pick up the costs themselves, which, I’ve seen experts questioning if that would really happen, even in states like, you know, New York and California, who probably wouldn’t want these people to lose coverage. But I think an argument that you hear a lot too, especially during the Trump administration when they were really pushing these, is they say that work is what provides fulfillment and dignity to people. Former CMS [Centers for Medicare & Medicaid Services] administrator Seema Verma talked about this a lot. The argument I heard a lot on the Hill this week is that Medicaid and other — SNAP [Supplemental Nutrition Assistance Program], TANF [Temporary Assistance for Needy Families], programs like that — trap people in poverty and that work requirements will kind of give them an incentive to get jobs. But as you said, like, it wouldn’t apply to most — you know, most people are already working. And most people who lost coverage under some of the previous iterations of this just didn’t know about it or they were unable to complete the reporting requirements.

Rovner: And to be clear, the CBO estimate is not so much because people would work and they wouldn’t need it anymore. It’s because people are likely to lose their coverage because they can’t meet the bureaucratic requirements to prove that they’re working. Shefali, you’re nodding. We’ve seen this before, right?

Luthra: I was just thinking, I mean, the savings, yes, they come from people losing their health insurance. That’s very obvious. Of course, you save money when you pay for fewer people’s coverage. And you’re absolutely right: “This will motivate people to work” argument has always been a little bit — complicated is a generous word. I think you could even say it’s a bit thin just because people do already work.

Rovner: And they — many of them work, they don’t earn enough money, really, to bring them out of poverty. And they don’t have jobs that offer health insurance. That’s the only way they’re going to get health insurance. All right. Well, where do we go from here with the debt ceiling? So now we’ve got this Republican plan that says work — everybody has to work and prove that they work and we’re going to cut all these programs — and the Democrats saying this is not a discussion for the debt ceiling, this is a separate discussion that should happen down the road on the budget. Is there any sign that either side is going to give here?

Hellmann: It doesn’t seem like it. Democrats have been saying, like, this is a non-starter. The president has been saying, like, we’re not going to negotiate on this; we want a clean increase in the debt ceiling, and we can talk about some of these other proposals that you want to pursue later. But right now, it seems like both sides are kind of at a standstill. And I think Republicans see, like, passing this bill yesterday as a way to kind of strengthen their hand and show that they can get all on the same page. But I just do not see the Senate entertaining a 14% cut or, like, Medicaid work requirements or any of this stuff that is just kind of extremely toxic, even to some, like, moderate Democrats over there.

Rovner: Yeah, I think this is going to go on for a while. Well, so at this high level, we’ve got this huge partisan fight going on. But interestingly, this week elsewhere on Capitol Hill things seem surprisingly almost bipartisan, dare I say. Starting in the Senate, the chairman and the ranking member of the Health, Education, Labor and Pensions Committee, Democrat Bernie Sanders and Republican Bill Cassidy, announced that they’ve reached agreement on a series of bills aimed at reining in prescription drug costs for consumers, including one to more closely regulate pharmacy benefit managers and others to further promote the availability of generic drugs. Sarah, we’ve talked about the target on the backs of PBMs this year. What would this bill do and what are the chances of it becoming law?

Karlin-Smith: So this bill does three things: One is transparency. They want to pull back the cover and get more data and information from PBMs so that they can better understand how they’re working. So I think the idea would then be to take future policy action, because one of the criticisms of this industry is it’s so opaque it’s hard to know if they’re really doing the right thing in terms of serving their customers and trying to save money and drug prices as they say they are. The other thing is it would basically require a lot of the fees and rebates PBMs get on drug prices to be given back directly to the health plan, which is sort of interesting because the drug industry has argued that money should be given more directly to patients who are paying for those drugs. And when that has scored by the CBO, that often costs money because that leads to PBMs using less money to lower people’s premiums, and premiums are subsidized from the government. So I’m curious if the reason why they designed the bill this way is to sort of get around that, although then I’m not sure exactly if you get the same individual … [unintelligible] … level benefit from it. And then the third thing they do is they want to eliminate spread pricing, which is where — this is really a pharmacy issue — where PBMs basically reimburse pharmacies less than they’re charging the health plans and, you know, their customers for the drug and kind of pocketing the difference. So I think, from what I’m seeing on the Hill, there’s a ton of momentum to tackle PBMs. And like you said, it’s bipartisan. Whether it’s this bill or which particular bills it’s hard to know, because Senate Finance Committee is sort of working on their own plan. A number of committees in the House are looking at it, other parts of the Senate. So to me, it seems like there’s reasonable odds that something gets done maybe this spring or summer on PBMs. But it’s hard to know, like, the exact shape of the final legislation. It’s pretty early at this point to figure out exactly how it all, you know, teases out.

Rovner: We have seen in the past things that are very bipartisan get stuck nonetheless. Well, across the Capitol, meanwhile, the House Energy and Commerce Committee is also looking at bipartisan issues in health care, including — as they are in the Senate — how to increase price transparency and competition, which also, I hasten to add, includes regulating PBMs. But, Jessie, there was some actual news out of the hearing at Energy and Commerce from Chiquita Brooks-LaSure, who runs the federal Medicare and Medicaid programs. What did she say?

Hellmann: So they’ve instituted two fines against hospitals that haven’t been complying with the price transparency requirements. So I think that brings the number of hospitals that they’ve fined to, like, less than five. Please fact-check that, but I’m pretty sure that I can count it on one hand.

Rovner: One hand. They have, they have actually fined a small number of hospitals under the requirement. Yeah. I mean, we’ve known — we’ve talked about this for a while, that these rules have been in effect since the beginning of 2022, right? And a lot of hospitals have just been not doing it or they’re supposed to be showing their prices in a consumer-understandable way. And a lot of them just haven’t been. And I assume CMS is not happy with this.

Hellmann: Yeah, so Brooks-LaSure said yesterday that CMS is no longer going to issue warnings for hospitals that aren’t making a good-faith effort to comply with these rules. Instead, they’ll move straight to what’s called the corrective action phase, where basically hospitals are supposed to, like, say what they’re going to do to comply with these. And after that, they could get penalized. So we’ll see if that actually encourages hospitals to comply. One of the fines that they issued is like $100,000. And so I think some hospitals are viewing this, you know, as a cost of doing business because they think it would cost them more to comply with the price transparency rules than it would to not comply with them.

Rovner: So transparency here is still a work in progress. There’s also a fight in the House over the very wonky-sounding site-neutral payment policy in Medicare, which, like the surprise bill legislation from a few years back, is not so much a partisan disagreement as a fight between various sectors in the health care system. Can you explain what this is and what the fight’s about?

Hellmann: So basically hospital outpatient departments or, like, physician offices owned by hospitals get paid more than, like, independent physician’s offices for providing things like X-rays or drug administration and stuff like that. And so this is —

Rovner: But the same care. I mean, if you get it in a hospital outpatient or a doctor’s office, the hospital outpatient clinic gets paid more.

Hellmann: Yeah. And there’s not much evidence that shows that the care is any different or the quality is better in a hospital. And so this has kind of been something that’s been getting a lot of attention this year as people are looking for ways to reduce Medicare spending. It would save billions of dollars over 10 years, I think one think tank estimated about 150 billion over 10 years. It’s getting a lot of bipartisan interest, especially as we talk more about consolidation in hospitals, you know, buying up these physician practices, kind of rebranding them and saying, OK, this is outpatient department now, we get paid more for this. There are fewer independent physician’s offices than there used to be, and members have taken a really big interest in how consolidation increases health care prices, especially from hospitals. So it does seem like something that could pass. I will say that there is a lot of heat coming from the hospital industry. They released an ad on Friday last week warning about Medicare cuts, so, they usually do whenever anyone talks about anything that could hurt their bottom lines. Very generalist ad and kind of those “Mediscare” ads that we’ve been talking about. So it’ll be interesting to see if members can withstand the heat from such a powerful lobbying force.

Rovner: As we like to say, there’s a hospital in every single district, and most of them give money to members of Congress, so anything that has the objection of the hospital industry has an uphill battle. So we’ll see how this one plays out. Let us turn to abortion. The fate of the abortion pill mifepristone is still unclear, although the Supreme Court did prevent even a temporary suspension of its approval, as a lower court would have done. Now the case is back at the 5th Circuit Court of Appeals, which has swiftly scheduled a hearing for May 17. But it still could be months or even years before we know how this is going to come out, right, Shefali?

Luthra: It absolutely could be. So the fastest that we could expect to see this case before the Supreme Court again, just — what from folks I’ve talked to is, I mean, we have this hearing May 17, depending on how quickly the 5th Circuit rules, depending on how they rule, there is a chance that we could see if we get, for instance, an unfriendly ruling toward mifepristone, the federal government could appeal to the Supreme Court this summer. We could see if the Supreme Court is willing to take the case. The earliest that means that they would hear it would be this fall, with a decision in the spring a year from now, but that would be quite fast. I think what’s striking about it is that we may all recall last year, when the Supreme Court issued its decision in the Dobbs case, they said this will put the issue of abortion back in the hands of the states, out of the judiciary, we will no longer be involved. And anyone at the time could have told you there’s no way that this would happen because it is too complicated of an issue, when you undo 50 years of precedent, to assume there will be no more legal questions. And here we are. Those critics have been proven right, because who could have seen that, once again, we’d have the courts being asked to step in and answer more questions about what it means when a 50-year right is suddenly gone?

Rovner: Indeed. And of course, we have the … [unintelligible] … This is going to be my next question, about whether this really is all going to be at the state level or it’s going to be at the state and the federal level. So as red states are rushing to pass as many restrictions as they can, some Republicans seem to be recognizing that their party is veering into dangerously unpopular territory, as others insist on pressing on. We saw a great example of this over the weekend. Former vice president and longtime anti-abortion activist Mike Pence formally split on the issue with former President Trump, with Pence calling for a federal ban and not just leaving the issue to the states. Nikki Haley, the former governor of South Carolina and the lone woman in the Republican field so far, managed to anger both sides with the speech she made at the headquarters of the hard-line anti-abortion group the Susan B. Anthony List. Haley’s staff had suggested ahead of time that she would try to lay out a middle ground, but she said almost nothing specific, which managed to irritate both full abortion abolitionists and those who support more restrained action. Is this going to be a full-fledged war in the Republican Party?

Luthra: I think it has to be. I mean, the anti-abortion group is still very powerful in the Republican Party. If you would like to win the nomination, you would like their support. That is why we know that Ron DeSantis pursued a six-week ban in Florida despite it being incredibly unpopular, despite it now alienating many people who would be his donors. This is just too important of a constituency to annoy. But unfortunately, you can’t really compromise on national abortion policy if you’re running for president. A national ban, no matter what week you pick, it’s not a good sound bite. We saw what happened last year when Sen. Lindsey Graham put forth his national 15-week ban: Virtually no other even Republicans wanted to endorse that, because it’s a toxic word to say, especially in this post-Dobbs environment, especially now that we have all of this polling, including NPR polling from yesterday, that showed us that abortion bans remain quite unpopular and that people don’t trust Republicans largely on this issue. I think this is going to be incredibly interesting because we are going to eventually have to see Nikki Haley take a stance. We will have to see Donald Trump, I think, frankly, be a bit more committal than he has been, because meanwhile, he has lately told people publicly that he would not issue any federal policy, would leave this up to the states, we also know that he has said different things in other conversations. And at some point those conflicts are going to come to a head. And what Republicans realize is that their party’s stance and the stance they need to take to maintain favor with this important group is just not a winning issue for most voters. People don’t want abortion banned.

Rovner: Yeah, it’s a real problem. And Republicans are seeing they have no idea how to sort of get out of this box canyon, if you will. Well, back in the states, things seem to be getting even more restrictive. In Oklahoma this week NPR has another of those wrenching stories about pregnant women unable to get emergency health care. This time, a woman, a mom of three kids already with a nonviable and cancerous pregnancy who was told literally to wait in the hospital parking lot until she was close enough to death to obtain needed care. And that case turned out not to be an outlier. A quote-unquote “secret shopper” survey of hospitals in Oklahoma found that a majority of the 34 hospitals contacted could not articulate what their policy was in case of pregnancy complications or how they would determine if the pregnant person’s life was actually in danger. I can’t imagine Oklahoma is the only state where this is the case. We have a lot of these bans and no idea where sort of the lines are, even if they have exceptions.

Luthra: We know that this is not isolated to Oklahoma. There is a lawsuit in Texas right now with a group of women suing the state because they could not access care that would save their lives. One of those plaintiffs testified in Congress about this yesterday. Doctors in virtually every state with an abortion ban have said that they do not know what the medical exceptions really are in practice other than that they have to wait until people are on death’s door because there isn’t — medical emergency isn’t really a technical term. These bills, now laws, were written without the expertise of actual physicians or clinicians because they were never really supposed to take effect. This really has been just another example of a way that the dog chased the car and now the dog has the car.

Rovner: And the dog has no idea what to do with the car. Well, meanwhile, in Iowa, the attorney general has paused the state’s policy of paying for abortions as well as emergency contraception for rape victims. This is where I get to rant briefly that emergency contraception and the abortion pill are totally different, that emergency contraception does not cause abortion — it only delays ovulation after unprotected sex and thus is endorsed for rape victims in Catholic health facilities across Europe. OK, end of rant. I expect we’re going to see more of this from officials in red states, though, right, with going — not just going after abortions, but going after things that are not abortion, like emergency contraception.

Luthra: And I mean, if we look at what many of the hard-line anti-abortion groups advocate, they don’t just want to get rid of abortion. They specifically name many forms of hormonal contraception, but specifically the emergency contraception Plan B, and they oppose IUDs [intrauterine devices]. It would just be so, so surprising if those were not next targets for Republican states.

Rovner: So abortion isn’t the only culture war issue being fought out in state legislatures. There’s also a parallel effort in lots of red states to curtail the ability of trans people, mostly but not solely teenagers, to get treatment or, in some cases, to merely live their lives. According to The Washington Post, as of the middle of this month, state legislators have introduced more than 400 anti-trans bills just since January. That’s more than the previous four years combined. Nearly 30 of them have become law. Now, I remember in the early aughts when anti-gay and particularly anti-gay marriage bills were the hot items in red states. Today, with some notable exceptions, gay marriage is as routine as any other marriage. Is it possible that all these attacks on trans people, by making them more visible, could have the same effect? In other words, could this have the opposite effect as the people who are pushing it intended? Or am I just looking for a silver lining here?

Luthra: I think it’s too soon to say. There isn’t incredible polling on this issue, but we do know that in general, like, this is not an issue that even Republicans pick their candidates for. It’s not like they are driven to the ballot box because they hate trans people this much. I wouldn’t at all be surprised if there is a backlash, just because what we are hearing is so, frankly, horrific. What I have been really struck by, in addition to the parallels to anti-gay marriage, have been the ways in which restrictions on access to health care for trans people really do parallel attacks to abortion in particular, thinking about, for instance, passing laws that restrict access to care for minors, passing laws that restrict Medicaid from paying for care, that restrict how insurance covers for care. It’s almost spooky how similar these are, because people often think minors are easier to access first. People often think health insurance is an easier, sort of almost niche issue to go for first. And what we don’t often see until afterward is that these state-by-state laws have made care largely inaccessible. The other thing that I think about all the time is that these are obviously, in both cases, forms of health care restriction that are largely opposed by the medical community, that are often crafted without the input of actual medical expertise, and that target health care that does feel incredibly difficult to extricate from the patient’s gender.

Rovner: Yeah. The other thing is that people are going from state to state, just like with abortion. In order to get health care, they’re having to cross state lines and in some cases move. I mean, we’re starting to see this.

Luthra: The high-profile example being Dwyane Wade, formerly of the Miami Heat, moving away from Florida because of his child.

Karlin-Smith: The other thing, Julie, you were saying in terms of how optimistic to be, in terms of maybe the other side of this issue sort of pushing back and overcoming it, is that Politico had this good story this week about doctors in states where this care is perfectly legal and permissible but they’re getting so many threats and essentially their health care facilities feel that they’re so much in danger that they are concerned about how to safely provide and help these people that they do want to help and give care, while also not putting their families and so forth in danger, which perhaps also has a parallel to some of how there’s tons of, like, constant protests outside abortion clinics. And people have volunteered for years just to kind of escort people so they can safely feel comfortable getting there, which of course is, you know, can be very traumatic to patients trying to get care.

Rovner: Yeah, the parallels are really striking. So we will watch that space too. All right. That is the news for this week. Now, we will play my “Bill of the Month” interview with Renuka Rayasam. Then we will come back and share our extra credit. We are pleased to welcome to the podcast Renuka Rayasam, who reported and wrote the latest KFF Health News-NPR “Bill of the Month” story. Renu, welcome to “What the Health?”

Renuka Rayasam: Thanks, Julie. Thanks for having me.

Rovner: So this month’s patient was pregnant with twins when she experienced a complication. Tell us who she is, where she’s from, and what happened.

Rayasam: Sure. Sara Walsh was 24 weeks pregnant with twins — it was Labor Day weekend in 2021 — and she started to feel something was off. She had spent a long time waiting to have a pregnancy that made it this far — eight years, she told me. But instead of feeling excited, she started to feel really nervous and she knew something was off. And so on Tuesday, she went to her regular doctor. And then on Wednesday, after that Labor Day, she went to her maternal fetal specialist, who diagnosed her with a pretty rare pregnancy complication that can occur when you have twins, when you have multiple fetuses that share blood unevenly through the same placenta. And it’s called twin-to-twin transfusion syndrome. And, you know — and this was Wednesday — she went into the office in the morning and she waited a long time for the doctor to kind of come back with the results, she and her husband, and just kind of spent the morning sort of back-and-forth between her maternal fetal specialist and her OB-GYN. And they told her she needed to get treatment immediately, that if she didn’t have treatment that she could lose one or both twins, she herself could even die. She needed to keep her fluid intake low. So they referred her to a specialist about four hours away from where she was. She was in Winter Haven, Florida, and they referred her to a specialist near Miami. And the specialist there apparently does not contract with any private insurance. And so that afternoon, hours after her diagnosis, she was packing her bags; she was getting ready to go, figuring out a place to stay, a hotel room and all that. And she gets a call from the billing office of this specialist in Coral Gables, Florida, near Miami. And they said, “Listen, we don’t contract with private insurance. You have to pay upfront for the pre surgical consultation for the surgery and then the post-surgical consult. And you need to have that money before you show up tomorrow in our office at 8 a.m.”

Rovner: And how much money was it?

Rayasam: About $15,000 in total for the consultations and the surgery itself. She told me she burst into tears. She didn’t want to lose these twins. She wasn’t given any option of shopping around for another provider. And she spent some time trying to figure out what to do. She couldn’t get a medical credit card because I guess there’s a 24-hour waiting period and she didn’t have that long. And so finally, her mother let her borrow her credit card. She checked into a hotel at midnight and at 8 a.m. the next morning she handed over her credit card and her mother’s credit card before she could have the procedure — before she could even see the doctor, I should say.

Rovner: And the outcome was medically good, right?

Rayasam: Yeah. The provider who did her surgery is a pioneer in this field. And that was why those doctors sent Sara to this provider, Dr. Ruben Quintero. He came up with this staging system that helps assess the symptom’s severity and even pioneered the treatment for it. But he sort of used all that to kind of say, OK, you have to pay me; I’m not even going to deal with insurance in this case. And so that afternoon, it was that Thursday, the day after she was diagnosed, she had a procedure, it went well, she had a couple of follow-ups in the following weeks. And then five weeks later, she delivered premature but otherwise healthy twin girls.

Rovner: So is that even legal for a doctor to say, “I’m not even going to look at you unless you pay me some five-figure amount”?

Rayasam: Generally, no. We have the federal No Surprises Act, as you know, and that’s meant to do away with surprise billing. But that was really designed for kind of inadvertent medical bills or surprises. Things get really complicated when there’s this appearance of choice where, you know, she had time to call the insurer, she had time to call the provider. It wasn’t as if she was unconscious and sort of rushed to the nearest doctor. Technically, she had a choice here. She could have chosen not to get the procedure. She could have gone to a different state. But obviously, those are not real choices in her situation when she needed the procedure so urgently. And so in those cases, you know, the billing experts I spoke with said this is a real loophole in federal billing legislation and state surprise billing legislation because the bill wasn’t a surprise. She knew how much to expect upfront. And that’s what makes this situation tricky.

Rovner: And she knew that the doctor wasn’t in network.

Rayasam: Absolutely. She knew the doctor wasn’t in network, and she knew how much she had to pay, and she willingly forked over the money, of course, as anyone would have in that situation or tried to in that situation.

Rovner: So after the fact, she went back to her insurance company to see if they could work something out, since it was pretty much the only place she could have gone at that point to get the treatment. But that didn’t go so well.

Rayasam: That didn’t go so well, and it’s one complication in this story that I myself don’t know what to make of, but the provider does not contract with any insurer, I should say. But he did take her insurance card and — or, the billing person did — and they say that they bill as a courtesy to the patient. So they file the paperwork for the patient. They say, “OK, your insurer will reimburse you. We’re going to provide all the paperwork.” In Sara’s case, it took a long time for this doctor and his practice to get Blue Cross Blue Shield the paperwork they needed to kind of pay for her claim. And in addition to that, they didn’t really send over the right paperwork right away. So it took a long time. And eventually she got only $1,200 back and she ended up paying far more than that out-of-pocket.

Rovner: And of course, the next obvious question is, doesn’t her insurance have an out-of-pocket maximum? How did she ever end up spending this much?

Rayasam: That’s a great question. We reached out to her insurer, and they didn’t really give us much of an explanation, but they, you know, on their billing statements and what they said to her was, “Hey, you went willingly out of network; this doesn’t qualify you for those out-of-pocket maximums.” They didn’t give us an explanation as to why. This seems to be a classic case of where those maximums should apply. But like I said, I think, you know, she had very little recourse. She tried to appeal the bills. She’s, you know, been on the phone with her insurer multiple times. The thing that makes this story more complicated is that it’s such a rare procedure and there aren’t that many providers in the country that even perform this procedure. So at first she was having to struggle with billing codes and all that with her insurance, so a lot of the people she was dealing with on the insurance side were really confused. It wasn’t something that they had a playbook for, knew what to do with, and that’s what made this a little bit more complicated.

Rovner: So what’s the takeaway here? I mean, obviously this was a rare complication, but if you multiply the number of rare complications of different things, you’re talking about a lot of people. Is there any way to get around this? I mean, it sounds like she did everything she could have in this case.

Rayasam: She did. In this case, it turns out there was another provider in Florida. There was no way for her to know that. Neither her OB-GYN nor the maternal fetal specialist told her about this other provider. I found out about it. I called around and did the reporter thing. And there are now four providers in Florida that will treat this. But of course, you know, if I was a patient, I wouldn’t shop around and risk my pregnancy either. So it’s unfortunate, in this case, there’s not much a person can do other than make sure that they’re keeping all the paperwork. And, you know, one thing that one of the billing experts I spoke with told me is that when you pay upfront, it makes things a lot harder. And in this case, like I said, she didn’t have a choice. But if there’s ever a way to get the bill on the back end, then there’s more of an incentive for the provider and the insurer to work together to get paid. But once the provider was paid, the insurer is not going to rush to reimburse the patient.

Rovner: And the provider is not going to rush to help the insurer figure out what to do. Ah well, another cautionary tale. Renu Rayasam, thank you so much.

Rayasam: Thank you.

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

Karlin-Smith: Sure. I took a look at a story in The Wall Street Journal, “Weight-Loss Drugmakers Lobby for Medicare Coverage. Adding Ozempic, Mounjaro to federal plans could stoke sales.” It really documents well sort of the range of lobbying organizations and groups and where they’re sort of putting money to try and get Medicare to shift its policies and cover treatments for obesity, which was something that in the early creations of Part D was banned. And I think largely at that time it was because weight loss was seen as more of a cosmetic treatment than something that impacted health in the same way we appreciate now.

Rovner: And also, there wasn’t anything that worked.

Karlin-Smith: Right. The things that prior to this, the things that were available at different times were not very effective and in some cases turned out to be fairly unsafe. And of course, now we have treatments that seem to work very well for a number of people, but there’s a fear of just how much money it would cost Medicare. So the other interesting thing in this story is they talk about some lawmakers in Congress thinking about ways to maybe narrowly start opening the floodgates to access by potentially maybe limiting it to people with certain BMIs [body mass indexes] or things like that to maybe not have the initial cost hit they might be concerned about with it.

Rovner: And of course, whether Medicare covers something is going to be a big factor in whether private insurance covers something. So it’s not just the Medicare population I think we’re talking about here.

Karlin-Smith: Right. There’s already I know lobbying going on around that. My colleague wrote a story a few weeks ago about Cigna sort of pushing back about having those drugs be included potentially in, like, the essential health benefits of the ACA [Affordable Care Act]. So it’s going to be, yeah, a broader issue than just Medicare.

Rovner: Yeah, it’s a lot. I mean, I remember when the hepatitis C drugs came out and we were all so, you know, “Oh my God, how much this is going to cost, but it cures hepatitis C.” But I mean, that’s not nearly as many people as we’re talking about here. Jessie, why don’t you go next?

Hellmann: My stories from Politico. It’s called “Gun Violence Is Actually Worse in Red States. It’s Not Even Close.” It takes a weird twist that I was not expecting. Basically, the premise is about how gun deaths are actually higher in areas like Texas and Florida. They have higher per capita firearm deaths, despite messaging from some Republican governors that it’s actually, like, you know, cities like Chicago and New York that are like war zones, I think it’s the former president said. The author kind of makes an interesting argument I didn’t see coming about how he thinks who colonized these areas plays into kind of like the culture. And he argues that Puritans like had more self-restraint for the common good. And so areas like that have less firearm deaths where, you know, the Deep South people were — had like a belief in defending their honor, the honor of their families. So they were kind of more likely to take up arms. Not sure how I feel about this argument, but I thought it was an interesting story and an interesting argument, so —

Rovner: It is. It’s a really good story. Shefali.

Luthra: My story is from The Washington Post. It is called “The Conservative Campaign to Rewrite Child Labor Laws.” It’s a really great look at this Florida-based group called the Foundation for Government Accountability, which, despite its innocuous-sounding name, is trying to help states make it easier to employ children. This is really striking because we have seen, in states like Arkansas, efforts to make it easier to employ people younger than 16 in some cases, which is just really interesting to watch in these states that talk about protecting children and protecting life to, to then make it easier to, to employ kids.

Rovner: And in dangerous profess — in dangerous jobs sometimes. I mean, we’re not talking about flipping burgers.

Luthra: No, no. We’re talking about working in, like, in meat plants, for instance. But I think what’s also interesting is that this same organization that has made it easier to employ children has also tried to fight things like anti-poverty and try to fight things like Medicaid expansion, which is just sort of, if you’re thinking about it from an access-to-health standpoint, like, anti-poverty programs and Medicaid are shown to make people healthier. It’s sort of a really interesting look into a worldview that in many ways uses one kind of language but then advance the policy agenda that takes us in a different direction.

Rovner: Maybe we should go back to to Jessie’s story and depend on who settled that part of the country. We shall see. Speaking of history, my story’s from The Nation, and it’s called “The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban,” by Amy Littlefield. And it’s about the Comstock Act, which is a law from the Victorian era — it was passed in 1873 — that banned the mailing of, quote, “lewd materials,” including articles about abortion or contraception. A lot has been written about the Comstock Act of late because it was used to justify part of the opinion in the original mifepristone case out of Amarillo. But what this article makes clear is that reviving the law is actually a carefully calculated strategy to make abortion illegal everywhere. So this is not something that just popped up in this case. It’s a really interesting read. OK, that is our show. As always. if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us too. Special thanks, as always, to our ever-patient producer, Francis Ying. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me, at least for now. I’m @jrovner. Sarah?

Karlin-Smith: I’m @SarahKarlin.

Rovner: Jessie.

Hellmann: @jessiehellmann.

Rovner: Shefali.

Luthra: @Shefalil.

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

Credits

Francis Ying
Audio producer

Emmarie Huetteman
Editor

To hear all our podcasts, click here.

And subscribe to KFF Health News’ ‘What the Health? on Spotify, Apple Podcasts, Stitcher, Pocket Casts, or wherever you listen to podcasts.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

In 2014, Lisa French had spinal surgery. Before the operation, she was told she would have to pay $1,337 in out-of-pocket costs and that her insurance would cover the rest. However, the hospital ended up sending French a bill for $229,000. When she didn’t pay, it sued her.

The case went all the way to the Colorado Supreme Court. In this episode of “An Arm and a Leg,” host Dan Weissmann finds out how the court ruled and how the decision is reshaping the fine print on hospital bills in ways that could cost patients a lot of money.

Dan Weissmann

@danweissmann

Host and producer of "An Arm and a Leg." Previously, Dan was a staff reporter for Marketplace and Chicago's WBEZ. His work also appears on All Things Considered, Marketplace, the BBC, 99 Percent Invisible, and Reveal, from the Center for Investigative Reporting.

Credits

Emily Pisacreta
Producer

Adam Raymonda
Audio Wizard

Afi Yellow-Duke
Editor

Click to open the Transcript

Transcript: A $229,000 Medical Bill Goes to Court

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–

Lisa French was a clerk for a trucking company in Denver. She’d been in a car crash, and her doctor told her that to keep her spine stable, she ought to get surgery.

She asked the folks at the hospital what it was gonna cost her, out of pocket. They ran her insurance and told her: Your end is going to be one thousand, three hundred thirty-six dollars, and ninety cents.

She said, thanks.

Then, she and her husband sat down at their kitchen table and talked it over: They had a rainy-day fund. A thousand dollars they’d socked away, they kept it at home, in cash. Were they ready to spend it all for this? 

They decided they were, and Lisa went to the hospital with a thousand dollars cash. 

She had the surgery, it went fine. The hospital had been expecting about 55 thousand dollars from Lisa’s insurance. They actually got more like 74 thousand.

But they decided that wasn’t enough. They decided they wanted their full sticker price: 303 thousand dollars. So they billed Lisa French for the rest: 229 thousand dollars.

And when they didn’t get it, they sued her.

Lisa French had her surgery in 2014. The court case finally got resolved last year, in 2022, by the Colorado Supreme Court.

If you’ve been listening to this show for a while, you probably remember: We have gotten VERY interested in understanding, when we get a wild medical bill, what legal rights do we have? How can we use those rights to fight back? Even on a small scale, like in small claims court? 

And even though Lisa French’s case is a LONG way from small claims court, it has a LOT to teach us about these questions.

This is An Arm and a Leg, a show about why health care costs so freaking much, and what we can maybe 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.

And I should say upfront: We won’t be hearing from Lisa French directly.

Her case made a lot of headlines– in 2018, when a jury heard it, in YEAR when an appeals court overturned the trial court, and last year when the state supreme court made its ruling.

Not in the kind of detail that we’re gonna go into, but come on: Who can resist the headline?

Male Anchor: Well, tonight we have a story of David versus Goliath. David being a woman who needed spinal surgery in 2014 Goliath, the hospital that charged her more than $200,000 to do it.

Dan: So over the years, a lot of reporters wanted a sound bite from Lisa French. Her attorney used to let her know when there was an inquiry, and she’d say yes or no.

Eventually, she told her lawyer: Don’t even tell me when they call anymore. I just want to live my life.

Fair enough.

So here’s who we’ve got.

Ted Lavender: I’m Ted Lavender. I’m an attorney in Atlanta, Georgia. I’ve been practicing law for 26 years,

Dan: And he spent several of those years representing Lisa French.

It’s probably worth answering one question up front: If Lisa French had to empty her family’s rainy-day fund to pay the hospital a thousand bucks, who’s paying the lawyer from Atlanta?

The insurance from her job. Which had played a role in starting the whole mess.

Ted Lavender: the company that she worked for had a health benefits plan that was slightly different than what you might call run of the mill health insurance.

Dan: It worked this way: They weren’t in-network with any hospitals. Instead, they’d just take whatever bill any hospital sent, make their own evaluation of what a fair price would be, and send the hospital a check.

It’s a somewhat unusual model– one survey says about 2 percent of employers use a plan like this– but Ted Lavender says it often works.

Ted Lavender: a very large percentage of the time , the hospital would accept the check and no one would hear anything more from the hospital, which in legal parlance would mean acceptance

Dan: And as a backstop, in case there was any trouble, the health plan would send a lawyer. That’s Ted.

And here’s what happened that led to all the trouble in Lisa French’s case: Whoever ran her insurance card at the hospital, they didn’t read it very carefully.

If they had, they would’ve seen a little logo under the insurance-company name that said, “provider only” — that is: This plan only has doctors and nurses and other PROVIDERS in network.

With hospitals, there’s no network, no “in-network rate.” We’ll just send a check for what we think is right.

The same health-benefits company has a different plan, one that does have a hospital network. You know how it is. Insurance companies, a million different plans, every one its own snowflake.

The hospital mistook Lisa French’s snowflake for another one, and that’s how they came up with that estimate.

Ted Lavender: based on their calculation, they expected to collect a total of

$56,000, the 1,336 from Ms. French and the remainder from her health plan.

Dan: And they presumably would’ve been happy with 56 thousand. But they got more. They got about 75 thousand dollars.

But once they got it, they wised up to the mistake they had made about Lisa French’s insurance. They had no agreement with the insurance plan to accept 56 thousand.

So, they decided: There’s no reason for us not to charge our full sticker price here.Three hundred and three thousand dollars.

So Lisa French had been expecting a bill for three hundred thirty-six dollars and ninety cents. That’s the difference between what she’d been quoted and the thousand dollars she’d paid in advance. But the bill she got wasn’t what she expected.

Ted Lavender: it turned out to be a whopper of a bill. We ended up with an itemized bill that showed every line item for every charge that totaled this

$303,000

And then at the bottom was, you know, subtracting the thousand she paid, subtracting the money the insurance paid, leaving a balance of 229,000 and change

Dan: Of course, Lisa French did not have 229 thousand dollars, or anything like it.

Ted Lavender: Eventually she got a visit from the sheriff who served her with a lawsuit and she was sued for that $229,000.

Dan: And that’s where Ted Lavender entered the scene.

The jury trial in 2018 took six days. As Ted Lavender says, it wasn’t exactly a splashy murder trial, in terms of drama.

Ted Lavender: this was a six day trial involving hospital billing. So, you know, there was no murder weapon. There was no aha, big, gotcha moment that was really exciting.

Dan: But Ted Lavender did his best. Like one time, when he got a hospital executive on the witness stand.

To stabilize Lisa French’s spine, surgeons had implanted 13 pieces of metal into her body. So Ted Lavender had the hospital executive walk the jury through the price for each of those bits of metal. Or actually, the prices..

Ted Lavender: And I first showed him the itemized bill and asked him to identify what they charged for these 13 pieces of hardware .

I had given him sort of an oversized calculator that was sitting there in front of him on the witness stand, admittedly, for some dramatic effect

And through adding these up on the itemized bill, he arrived at the number which was $197,000.

Dan: A hundred and ninety-seven thousand dollars. So that’s about two-thirds of the three hundred and three thousand dollars the hospital is trying to charge Lisa French.

And then the next thing I did was I handed in the 13 invoices that we had received from the hospital,

Dan: That is, Ted handed the guy the invoices the hospital had received — and paid — when it bought those bits of metal..

Ted Lavender: and I asked him to add up and tell this jury what did the hospital pay for these 13 pieces of hardware.

He’s adding, and he’s adding and he’s punching in numbers, and he’s turning pages and he’s adding, and he’s adding with each addition, with each plus the jury seemed to ease a little closer up to the front of their chair, and ultimately he arrived at the total, which was $31,000 and change.

Dan: So the hospital’s charging like six and a half times what they paid. And that’s two thirds of this 300 thousand dollar bill.

Ted Lavender: It just, you know, the jury seemingly did not like that.

Dan: So that was a good moment for Lisa French’s side. I mean getting the jury mad at the other side, that’s a win.

And the big calculator wasn’t Ted Lavender’s only visual: He also had a giant post-it note, where he wrote down, in magic marker, all the different prices the hospital accepted for the surgery, depending on who was paying.

Ted Lavender: and we got these numbers from the hospital, they would’ve accepted $146,000 from private insurance.

Dan: That’s less than half of what they were trying to charge Lisa French. And they accepted less than that — a LOT less — from government-funded insurance, like Medicare, Medicaid, or Tricare, which covers folks in the military.

Ted Lavender: The average of what they would’ve accepted for these. Procedures that Ms. French had were $63,199. Again, Ms. French and her insurance company combined paid almost $75,000.

Dan: You can hear that post-it rustling around. It was a good prop, he’s held onto it. So, he’d shown the jury that the hospital charged a HUGE markup, and that what they were suing Lisa French for was way, way more than they charged anybody else.

On the hospital’s side, they were like, Yeah, but this is our actual sticker price. And Lisa French signed a piece of paper that said she would pay “all charges of the hospital.”

So the hospital was like, yep, and these are our charges. That 303 thousand dollars, it comes from a list we keep. It’s called the chargemaster. That’s what Lisa French was signing up for.

And this became something the jury had to decide:

When Lisa French signed a piece of paper saying she’d pay “all charges of the hospital” — was she specifically agreeing to pay what was on the chargemaster?

And here’s one thing that might’ve made jurors a little skeptical on that score: The hospital never showed that chargemaster list to Lisa French. Not before her surgery, not after it. They said it was a trade secret.

Ted Lavender: they went all the way through trial. Never producing it though. We, we, we asked at the very beginning, once the lawsuit was filed, , basically you get to ask questions. Give me this information, give me information that supports your case or helps my case.

And we ask specifically for the charge master and they refuse to produce it on the basis that it was confidential and proprietary.

Dan: By withholding that list, the hospital may have helped Ted Lavender make his argument: How could Lisa French have known what she was signing up for, if she couldn’t see the prices?

Ted Lavender: if we can’t get it through our subpoena power, how in the world would Lisa Friendship been able to use it by, had she asked?

And admittedly she didn’t ask for it, but if she had, surely they wouldn’t have given it to her either.

Dan: In the end, the jury agreed: Lisa French had not specifically agreed to pay the hospital’s chargemaster prices.

And the only other alternative was: She agreed to pay something reasonable.

The jury decided she owed the hospital seven hundred seventy six dollars and 74 cents

Basically, that’s the three hundred and some left over from the original estimate, plus some extra — because she wound up staying in the hospital one night more than expected: She owed a fee for late check-out.

Of course the hospital did not take that lying down. They appealed the outcome– and won! Ted Lavender appealed that decision, which is how the case ended up in front of the Colorado Supreme Court.

We’ve actually got tape of those proceedings. They’re kinda juicy. Plus the outcome, and why it matters for the rest of us. That’s right after this.

This episode of An Arm and a Leg is produced in partnership with KFF Health News–formerly known as Kaiser Health News.

They’re a national newsroom producing in-depth journalism about health care in America. We’ll have more information about KFF Health News at the end of this episode.

OK, so Lisa French’s case was headed to the Colorado Supreme Court.

And here’s the big issue. Remember how the jury found that Lisa French hadn’t actually agreed to pay the hospital’s chargemaster price, the three hundred and three thousand dollars?

The hospital argued: The jury never should’ve been asked to consider that question.

The law — legal precedent — makes it open and shut: The appeals court had agreed. And it had cited other cases from courts around the country.

So when the hospital’s lawyer, Mike McConnell, got up to address the Supreme Court, he led with those citations.

Mike McConnell: All of the questions that you have raised have been addressed in more than a dozen cases around the country. carefully and thoroughly.

Justice Richard L. Gabriel: Well, let me push back on you. Good morning to you, Mr. McConnell.

Mike McConnell: Good morning.

Dan: This is Justice Richard L Gabriel, stepping right in. He notes that these dozen other decisions all rest on one original case, from 2008, where a court had said: We can’t intervene in health care pricing. Courts shouldn’t try. Health care is too complicated.

Justice Gabriel wasn’t convinced.

Justice Richard L. Gabriel: I guess the question I have is why, you know? I, you know, we may not be the smartest people in the world, but this is a contract and why should the hospital industry— different than any other industry on the planet —have different rules for contract principles?

Dan: The hospital lawyer argued that hospitals couldn’t predict everything that would happen in a patient’s care. In fact, the hospital can’t even control it: Only physicians can decide what treatment to order.

Mike McConnell: You can, uh, I guess imagine that hospitals ought to be able to predict in advance what a particular physician is going to order for a particular patient. Um, and, uh, perhaps, you know, obviously you feel that is the way it ought to be. It is not the way it is, but now

Justice Melissa Hart: Mr. Mr. McConnell, I’m sorry, to interrupt…

Dan: Here’s justice Melissa Hart breaking in

Justice Melissa Hart: …the hospital did provide an estimate in this case. They did calculate what they thought this was going to cost and tell her that. So it is, it seems false to me that they can’t do it. Of course, they can’t predict with absolute certainty. In this case, she had the extra night stay in the hospital and she paid for that. But they can predict in a case like this, and they do.

Dan: The justices didn’t seem super-persuaded by McConnell’s response to that. And that left one more big question in front of the justices.

When Lisa French signed a document promising to pay “all charges,” was she definitely agreeing to pay three hundred and three thousand dollars? Or 229 after insurance.

The appeals court found that the chargemaster rate — the 303 thousand — had been “incorporated by reference” to the document she’d signed, officially called the “hospital services agreement.”

The supreme court wasn’t convinced. Here’s Justice Richard Gabriel again.

Justice Richard L. Gabriel: There’s no reference to the charge master on the face of the hospital services agreement.

How could she have assented to something she never even knew existed?

Dan: And here’s how the hospital’s lawyer responded.

Mike McConnell: When she read the provision, all charges not otherwise paid by insurance. She understood that the hospital charges would, she was responsible for paying the hospital charges that her insurance company did it,

Justice Richard L. Gabriel: Whatever it was. They could have charged her a billion dollars and she’s your position to be she’s bound because she agreed. All charges means all charges.

Dan: Huh! There wasn’t a real comeback to that.

The Supreme Court ruled against the hospital, unanimously. Specifically, they ruled that the chargemaster– the 303 thousand dollars– had not been “incorporated by reference” to the piece of paper Lisa French had signed.

She didn’t know those chargemaster list prices even existed. How could she agree to pay them?

So that meant, the court ruled that, quote, “the hospital services agreements left the price term open.”

Which is language that may ring a bell, if you’ve been listening to this show. It’s a legal principle — a bedrock of contract law:

How the law treats an open-price contract — a contract that doesn’t specify a price term.

Here’s a refresher on that principle from Ted Lavender.

Ted Lavender: if you go to McDonald’s and order a, a quarter pounder with cheese and you know, value meal number three, they tell you the price and that is the price that you have to pay. And then they give you your meal.

You enter that contract with an actual price term

Dan: But you can also enter an open-price contract — a contract without a price term.

Ted Lavender: if you have a contract without a price term, without a specific price in it, then the law infer into that contract a reasonable price.

Dan: In other words, a contract with the price term OPEN is not a blank check. I don’t have to pay whatever number the other side makes up.

And that’s what the Colorado Supreme Court found here.

They ruled that, quote, “principles of contract law can certainly be applied to hospital-patient contracts.” They say, a court may have ruled otherwise in 2008, and other courts may have cited that opinion. We disagree.

The Colorado Supreme Court is saying, even in health care, when no price is specified– when the price term is open– you have the right to a reasonable price.

Yes!

And that’s why Lisa French’s case is so interesting to us, here on this show.

Because we’ve talked here about using this legal principle to fight back against outrageous bills.

We’ve heard from one guy, Jeffrey Fox, who actually took a hospital to small claims court to enforce his right to a reasonable price. And won.

We’ve heard from a listener who tried and failed, but said, more of us should try this.

And this Colorado decision seems like good news for anybody interested in doing something like that.

But honestly, it also raises a few concerns that I had not known about before. First:

Well, there ARE all those other cases out there, in other states, that follow the 2008 case, the one that says health care is too complicated for courts to get into.

And yeah, here’s Colorado saying, “No it isn’t.”

But courts in other states aren’t bound by Colorado’s decision. Hm. And second: there’s also something the Colorado court DIDN’T decide:

What if the paper Lisa French signed had specified, “I agree to pay the hospital’s CHARGEMASTER rates?” Could she be required to pay them then? Even if they were a billion dollars?

In their decision, The Colorado court wrote that the chargemaster rates are “increasingly arbitrary” and “inflated” and “have lost any direct connection to hospitals actual cost.”

So Ted Lavender thinks they might’ve said, No, we can’t be held to a billion dollars, just by adding the word “chargemaster.”

Ted Lavender: I think they would’ve answered that. No, but they did not come right out and actually answer that.

Dan: Because they didn’t HAVE to answer that question.

Ted Lavender: Courts routinely, in fact, it’s almost an objective of appeals courts. They answer as few a number of questions as possible to get to an answer. ,

Dan: So the Colorado court simpley ruled that in Lisa French’s case, the chargemaster rates weren’t “incorporated by reference” into papers she signed.

Those papers didn’t didn’t mention the chargemaster at all– and the hospital kept that chargemaster as a trade secret. Open, shut.

But… hospitals aren’t supposed to keep those rates secret anymore. For the last couple of years, thanks to an executive order from the Trump administration, federal rules have required them to post their chargemaster to the internet.

And so I had all that in mind when I heard from a listener in Atlanta.

Cindi Gatton: my name is Cindy Gatton and I’ve been an independent patient advocate for 11 years now.

Dan: Cindi’s job is helping people deal with medical bills, but she had actually written to me about her experience as a patient.

Before a medical appointment, she got the usual forms online, including one for “Patient Financial Agreement and Responsibilities”

Cindi Gatton: so I thought, you know what? I’m gonna print it and just see exactly what it says. And I’m reading through the thing it says, patient understands and agrees that he, she will be charge. The Piedmont Healthcare Standard charge master rates for all services not covered by a payer or that are self-pay.

I’ve never seen that before, and it shocked me that there was a reference to charge master rates in the financial disclosure.

Dan: And Cindi has been dealing with medical bills full-time for a decade. She’s seen a lot. So when she says it’s new, and that it’s shocking, that seems worth noting.

Cindi Gatton: it just feels wrong to me. It feels really wrong because it, it reminds me of, you know, you, you go to a website and they give you their terms and conditions. Nobody reads those. I don’t read them. You click yes so that you can move on with what it is you wanna do, which is to get care, to be seen by the doctor to, you know, have your procedure.

And I don’t know this, this feels, um, it feels manipulative to me

Dan: Yeah, and to me, it feels ominous. Like lawyers who work for hospitals have been paying attention to the Lisa French decision and thinking:

There’s a wedge here maybe we could exploit. Like, if we get you to sign a document that says “chargemaster” on it, we’re getting you to sign away your right to a reasonable price. After all, the court in Colorado didn’t come out and say that wouldn’t be kosher.

So, where I’m landing at the end of this story is: I’ve got a couple big homework assignments:

First, if I’m interested in seeing how we can use our legal rights to fight back against outrageous, unreasonable bills — and I am —

I need to learn more about which states recognize our rights to a reasonable price in health care, and which ones … maybe don’t. I’m on it, and if you’ve got any tips, please bring them.

That’s the first assignment, and for the second, I’d love your help: How many hospitals are using this “chargemaster” language these days in those financial responsbility documents they ask us to sign?

Do me a favor: See if you can get a copy of that document from any hospital system or doctor group where you get seen. And send me a copy of it?

Redact anything you need to. And also know: we’re not aiming to share this with anybody outside our reporting team.

Here’s what happened when I tried this.

A hospital where I get seen uses a portal called MyChart– a lot of hospitals use it. I just logged on to MyChart there, and I did a little digging around. I found a link to something called “My Documents.” And I found a form there called Universal Consent.”

It has stuff about financial responsibility.

It doesn’t mention chargemaster rates. But it’s a year old. It also says it’s expired.

And here’s an idea I got from Cindi, which I’m gonna try– and which seems worth passing around.

When Cindi found that chargemaster language in the document from her Hospital, here’s what she did. She printed it out and changed it:

Cindi Gatton: what I did is instead of the standard charge master rates, I drew a line through it and I wrote in two x Medicare rates.

Dan: In other words, instead of saying “I’ll pay the chargemaster rates,” it says, “I’ll pay two times the Medicare rate.”

We’ve heard about this strategy before, from former ProPublica reporter Marshall Allen, who wrote about it in his book, “Never Pay the First Bill.”

Here’s the rationale. Medicare pays less than most commercial insurance; hospitals say that at least sometimes they lose money on Medicare. Doubling it seems … generous enough. But it also sets a limit.

So that’s what Cindi wrote on her printout.

Cindi Gatton: I have been taking it with me when I go to be seen that if they ask me for the document that I can say, you know, here it is.

Dan: So far, she says, nobody’s asked for it.

And, I don’t think anybody will be confused, but just to make sure, I’ll say: This isn’t legal advice. I’m not a lawyer. Cindi’s not a lawyer.

She’s just a person going to the doctor, doing her best not to leave too many openings where she could get really screwed. And I’m gonna try following her example.

And I’ve got another request for you: If you try this trick of printing the thing out, exxing out the chargemaster language and writing 2 x medicare rates– LET ME KNOW WHAT HAPPENS, OK?

The place to do all this is on our website at arm and a leg show dot com, slash contact. That’s arm and a leg show dot com, slash, contact.

You are this show’s secret weapon. You’re our eyes and ears. Cindi Gatton’s a listener who got in touch.

How did I first learn about Lisa French’s case? Email from a listener. [Thank you, Terry N, for that note last year! Took us a minute, but we got to this.]

Thank you for listening. You absolutely rule. I’ll catch you soon.

Till then, take care of yourself.

This episode of An Arm and a Leg was produced by me, Dan Weissmann, with help from Emily Pisacreta, and edited by Afi Yellow-Duke.

Daisy Rosario is our consulting managing producer. Adam Raymonda is our audio wizard. Our music is by Dave Winer and Blue Dot Sessions.

Gabrielle Healy is our managing editor for audience. She edits the First Aid Kit Newsletter.

Bea Bosco is our consulting director of operations. Sarah Ballema is our operations manager.

An Arm and a Leg is produced in partnership with KFF Health News–formerly known as Kaiser 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.

And yes, you did hear the name Kaiser in there, and no: KFF isn’t affiliated with the health care giant Kaiser Permanente. You can learn more about KFF Health News at arm and a leg show dot com, slash KFF.

Zach Dyer is senior audio producer at KFF Health News. He is editorial liaison to this show.

Thanks to Public Narrative — That’s a Chicago-based group that helps journalists and nonprofits tell better stories– for serving as our fiscal sponsor, allowing us to accept tax-exempt donations. You can learn more about Public Narrative at www dot public narrative dot org.

And thanks to everybody who supports this show financially.

If you haven’t yet, we’d love for you to join us. The place for that is arm and a leg show dot com, slash support.

Thank you!

“An Arm and a Leg” is a co-production of KFF Health News and Public Road Productions.

To keep in touch with “An Arm and a Leg,” subscribe to the newsletter. You can also follow the show on Facebook and Twitter. And if you’ve got stories to tell about the health care system, the producers would love to hear from you.

To hear all KFF Health News podcasts, click here.

And subscribe to “An Arm and a Leg” on Spotify, Apple Podcasts, Stitcher, Pocket Casts, or wherever you listen to podcasts.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

Nuila’s new book, The People’s Hospital: Hope and Peril in American Medicine, uses the innovative model of the Ben Taub Hospital in Houston, where he practices, to argue for a publicly funded health system in the U.S. that’s available to everybody, with or without insurance. 

Dan Weissmann

@danweissmann

Host and producer of "An Arm and a Leg." Previously, Dan was a staff reporter for Marketplace and Chicago's WBEZ. His work also appears on All Things Considered, Marketplace, the BBC, 99 Percent Invisible, and Reveal, from the Center for Investigative Reporting.

Credits

Emily Pisacreta
Producer

Adam Raymonda
Audio Wizard

Afi Yellow-Duke
Editor

Click to open the Transcript

Transcript: A Doctor’s Love Letter to ‘The People’s Hospital’

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: Ben Taub Hospital is a publicly funded safety net hospital in Houston, Texas. The majority of patients don’t have insurance of any kind. 

Dr. Ricardo Nuila has been working at Ben Taub since he was an intern, a medical student. He took me on a tour.

Ricardo Nuila: I started here and, you know, literally I just did not want to leave here cuz I just, just really enjoyed my job here

Dan: He’s just published a book called “The People’s Hospital” that’s not just a love letter to the place, it’s a pitch: 

Not only is this place way, way cheaper than what we’re used to, in many ways it’s better. And it’s a model, a real alternative to what-we’re-used-to.

So, I ask him to pick ONE patient’s story from the book to tell, he picks a patient he calls Stephen. A restaurant manager, a Republican. A guy who did not expect to end up here.

But he had a giant lump on the side of his throat, and his insurance didn’t cover much. He paid cash, upfront, to get seen in a local ER. 

Ricardo Nuila: finally there was a doctor who had seen a CAT scan and said, you have tonsillar cancer, cancer, however, you don’t have, uh, insurance 

Dan: Tonsillar cancer. Cancer of the tonsils. That landed hard. So did the “however.” 

Ricardo Nuila: He felt shitty you know, that somebody could tell you cancer, but there’s nothing that we are gonna do about it because of, of how much and…

Dan: It’s like it’s too painful — or too obvious — to finish the sentence: Because of your insurance. Somebody tells Steven to try the public hospital, Ben Taub. He expects the worst. But that’s not what he finds.

Ricardo Nuila: He comes to love this place. He gives, this is like so Steven, but he, he gives gift cards to the people greeting at the door because they’re nice and they do their job well cuz they make his day,

Dan: And it’s not just that he likes the people at the door.

Ricardo Nuila: He feels like he got really good healthcare and that he also, um, thought that the price was extremely reason.

Dan: Stephen lost his insurance when he got too sick to work, and he doesn’t qualify for Medicaid. He owns a house, he’s got savings, Texas has really stringent Medicaid restrictions– so he’s paying out of pocket.

Ricardo Nuila: But his final bill is pennies of what he thought he would pay.

Dan: Stephen’s dad had gotten radiation treatment for cancer, and the sticker price was 700 thousand dollars. Stephen had gotten radiation AND chemo AND surgery — and had been hospitalized for a good while. 

His bill was 32 thousand, three hundred and seventy-eight bucks. Real money for sure, but he can pay it. And it’s less than five percent of his dad’s bill for much less extensive treatment. 

Ricardo Nuila: And the healthcare is really good. And so he’s almost proud that he’s had this experience

Dan: Steven’s become a convert. And as Ricardo Nuila walks me into a conference room, it’s clear: He hopes his book will create more converts. 

Ricardo Nuila: you start to see this model and it makes you think, can things be different in healthcare? I think that that’s an option. But we as a country haven’t thought about that. Seriously. You know?

Dan: And if it seems politically unimaginable that we could have anything like this around the country– an effective, efficient, CHEAP, publicly-funded health system– 

Well, the idea that Houston could have one, that was pretty unlikely too.

In fact, the story of how Ben Taub got here may be the most surprising story in Ricardo Nuila’s whole book. 

This is An Arm and a Leg, a show about why health care costs so freaking much, and what we can maybe 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 to bring you a show that’s entertaining, empowering and useful.

Ben Taub Hospital sits at the edge of the Texas Medical Center– that’s a giant neighborhood full of hospitals and medical schools, including some of the best in the country, like the M.D. Anderson cancer center. 

In his book, Ricardo Nuila writes about how some patients at Ben Taub can see from their rooms the gleaming buildings of Ben Taub’s neighbors. 

So when I visit, I make him show me the view. We look out from a stairwell at a glass tower, M.D. Anderson’s Sheikh Zayed building.

Ricardo Nuila: that’s glamorous. Right? you get a glimpse into the rest of the medical center here. Ben Taub sticks out, I feel like, because it’s, it’s brick versus glass. 

Dan: But as Ricardo Nuila makes clear in his book: This unglamorous brick building gets the job done. 

In addition to Steven, there’s Ebonie, whose complicated pregnancy — there’s a lot of vaginal bleeding– gets tracked more precisely than it would elsewhere: 

At other hospitals, nurses eyeball the pads that absorb that blood and note heavy, medium or light bleeding. At Ben Taub, they’ve adopted an innovative approach: weighing each pad to get an exact measurement. 

Another patient, Christian, has bounced around other systems without anybody accurately diagnosing the dire kidney problems that have kept him in pain for years. Because he didn’t have good insurance, it wasn’t worth anybody’s time. 

At Ben Taub, insurance isn’t an obstacle, 

Ricardo Nuila: We organize things, which is basically, okay, we need to focus on your kidneys right now and we need to get you to see a geneticist. And both of those things happened.

Dan: they not only diagnose him, they get him on a form of dialysis that he can manage himself at home.

It’s cheaper, and delivers better quality of life for him.

Everything at Ben Taub is cheaper. The system spends about a third as much per patient as the national average. In part, that may be because nobody earns million-dollar salaries here. 

But Ricardo Nuila makes the case over and over again that they take the time– because they have it– to make wise use of resources. 

They don’t have as many MRI machines as other hospitals. But guess what? A lot of patients don’t need MRIs. 

But Ben Taub can’t meet every need: One patient, Geronimo, needs a liver transplant, and that requires resources the hospital just doesn’t have. 

But Ricardo Nuila and his colleagues put a lot of time into wrenching him back onto Medicaid, so he can get the transplant somewhere else. They rope in a Congressman to get it done. 

Geronimo tells his mom:”I feel so important. Everyone treats me like I’m rich.” 

Ricardo Nuila: That’s what I think a lot of people really want is just the sense that the person who’s responsible for your care is thinking through the problem with you and aware that you are not having a great day and wants to deal with that situation with you. And I just felt like this environment allowed me to like, have those moments.

Dan: So who pays for this environment? It may be cheaper, but it isn’t free. 

Some patients are on Medicaid. Some are on Medicare. Some have private insurance. But the majority don’t have any insurance at all. 

Some, like Stephen, pay cash. And a lot of the rest — about a third of Ben Taub’s patients — are treated for free.

The bulk of Ben Taub’s funding comes from a special property tax in Harris County, where Houston is located. It funds a whole system called Harris Health– Ben Taub, a second hospital, and a bunch of clinics. 

And of course, none of this has always existed. 

In fact, it’s only here, like this, because of a really wild story, with two big characters. One of whom wasn’t even from Houston. He was a writer I’d never heard of, a Dutch guy named Jan de Hartog.

Ricardo Nuila: de Hartog was one of the most amazing people that you could read about. He was a Nazi resistance fighter, Dutch ship captain. 

Dan: And while he was hiding out in Denmark during the war– in between saving a few Jewish babies and running war missions in his tugboat–  

he wrote a romantic dramedy that — later became a broadway hit. And then got adapted into a Broadway musical called I Do, I Do– which, Broadway-musical nerds in the house– starred Mary Martin and Robert Preston– you know, The Music Man– and had a song that your mom might still remember. 

 (musical sounds) 

Dan: Yeah. So, interesting guy. And in the early 1960s he came to Houston to teach playwriting at a local University.  It was a big time for him. He’d just gotten married — for the third time, but this one was for keeps- and become a Quaker. 

Ricardo Nuila: And when he and his wife Marjorie come to Houston, they find that there’s all these whisperings about this charity hospital in town in Houston about how, how awful the conditions are. That the children in the maternity ward would cry all night for the, for a lack of milk, and so as part of his faith, he decides that he needs to volunteer there

Dan: When de Hartog writes about the hospital later, he describes the experience of walking in for the first time as literally mind-boggling. 

He’s like: I know what a hospital smells like. Disinfectant, maybe some fresh laundry. And I know what a slaughterhouse smells like: Blood, and shit. And the smell here is slaughterhouse. 

As he looks around, the sights are something else.

Ricardo Nuila: He sees a cockroach crawling into the tracheostomy of like a patient. He sees like people sitting in their own filth. 

Dan: He and Marjorie do not up and quit. They stick around. And then they recruit a dozen Quakers and a few society ladies to come volunteer with them, and get the Red Cross to train them.

And it’s nuts. This is a rich city. The ZOO is air conditioned. But not this hospital. 

And he starts to catch on: Why it’s so horrible.

Number one is racism. 

The hospital serves mostly Black and Brown patients. When Jan and Marjorie start volunteering, the other volunteers are all society ladies, and the whole program is set up so they don’t touch patients. DeHartog later says he asked why, and the volunteer coordinator says, Southern ladies can’t have physical contact with black people.

But she doesn’t say black people. She uses the n-word. 

 When he asks staff why public officials don’t do something about the rotten conditions, they say: What politician is going to stick up for black people? The n-word comes up again. 

And– de Hartog doesn’t make this connection, but it seems pretty on the nose: The hospital itself is named after Jefferson Davis, who led the Confederacy in the Civil War. 

But there’s also a political mechanism for institutionalizing this neglect, without ever having to acknowledge the role of racism: 

No one particular political entity — no one particular political leader– is responsible for the public hospital, financially. The city of Houston and Harris County are each supposed to kick in HALF. So it doesn’t belong to either of them. Here’s de Hartog describing the city-county dynamic in a lecture he gave many years later. 

Jan de Hartog: And they were continuously at each other’s throats. The one said, you don’t pay enough. The other said, but you don’t. And they went back and forth

Dan: The top official for Harris County actually has the title County Judge. At that time, this was a guy named Bill Elliott. 

And you’ll hear in this clip from a local newscast, he wasn’t exactly reaching for the bill. Here he is, explaining why the some problem with the hospital is actually the CITY’s fault. 

Judge Bill Elliott: it’s absolutely ridiculous, uh, to say that, uh, this is a responsibility and this is the fault of Harris County.

Dan: And the city? At least one.council member is calling for a budget cut. 

Which really pisses de Hartog off. 

And de Hartog actually loves the city. It’s an exciting place. It’s booming– growing super-fast. And it’s not just an oil town. 

Ricardo Nuila: Houston at that time was the home of NASA.

NASA narrator: Future manned space flight missions to the moon and perhaps the planets will be commanded from this control room of the Mission Control Center at NASA’s Manned Spacecraft Center,

Ricardo Nuila: It had built this Astrodome, it was the city of the future. 

Dan: The Astrodome– you know, a sports stadium WITH AIR CONDITIONING. . 

Astrodome Narrator: A fully enclosed building, large enough for any sport convention show or conclave with constant temperature and humidity independent of outside weather,

Dan: CBS News does a report about the booming city: NASA, the oil wealth, the Astrodome. And de Hartog is a main character– talking about how much he loves the town.

Jan de Hartog:  it is a city of, a city of unlimited opportunities. It’s an immensely exciting town, and you feel that anything is possible, 

Dan: It wraps up with Walter Cronkite talking about how everybody in town is absolutely nuts about football.

Walter Cronkite: Their brand of football is like their brand of city and brand of life. Play wide open. Take a chance, try anything. Above all, do it with zest and do it big. 

Dan: Oh, and there’s this OTHER thing Houston is really becoming known for. 

Cutting edge medicine. For twenty years, the city’s been building the Texas Medical Center — that giant campus where more than a dozen hospitals and med schools now operate right on top of each other. Baylor College of Medicine actually moved from Dallas to Houston to be part of it. 

Ricardo Nuila: Houston is a really deeply medical city. And at that time they’re all working on extraordinary things

Dan: Yeah, in 1964, while Jan de Hartog is witnessing the suffering at the charity hospital, Dr. Michael deBakey is performing the world’s first coronary artery bypass at a private hospital in town. 

But the medical establishment were not allies. Jefferson Davis hospital, on the outskirts of town, was about to be replaced by a new building in the Texas Medical Center. 

But the Medical Society– the local doctors’ association — hadn’t wanted the charity hospital as a neighbor. They’d actually put up a ballot initiative to keep the new building at the old site. 

Medical Society Voice-Over: you the taxpayer, will pay the extra cost That’s why your doctor recommends you vote for the new hospital to remain at its present site. 

Dan: It hadn’t worked, but along with the budget cuts, officials were now talking about DELAYING the charity hospital’s move to the new building, which had just been completed. De Hartog and his friends, smell a rat. 

They think the powers that be are actually going to sell the new building in the Medical Center to some other hospital that wants in. This has been a public conversation.

Jan de Hartog: There had been offers to buy it and they wanted to wait for the highest bidder

Ricardo Nuila: He writes a series of op-eds for the Houston Chronicle that start to get press, not just in Houston, but around the country and in fact around the world. 

Dan: He describes the awful things he’s seen. And he appeals to Houstonians’ sense of pride in their bustling, futuristic city. A city he loves, too. Here’s how his first op-ed ends…

Jan de Hartog: I cannot believe that it is the will of the citizens of Houston, that our growing medical center rightly becoming famous all over the. Shall be allowed to harbor the cancerous sore of man’s inhumanity to man. It would turn the entire center planned as Houston’s glory into Houston’s shame. 

Dan: Even just that first op ed made a lot of noise.

Jan de Hartog: the bomb exploded and the national magazines and newspapers and TV zeroed in on the hospital to find out what was going on, 

Dan: … and immediately, the hospital DOES move into its new home in the Medical Center. But the funding issue isn’t solved. 

So de Hartog keeps pushing. 

Ricardo Nuila: He writes a book called “The Hospital” 

Dan: He goes to churches around town, synagogues, everywhere he can, recruiting hundreds of volunteers. 

But there’s no political progress — and conditions at the hospital actually get worse. Key nurses get burned out and quit. Things go to hell.

In a harrowing diary entry, he writes about full bedpans left on tables next to trays of food. About a patient crying out for help, and hearing back “Shut up!” 

Jan de Hartog: Never before had I realized to this extent, the depth of our damnation, and at that deepest moment of desperation, when we knew nothing could be done, nothing would change for the simple reason that

Jan de Hartog: those who had the fate of the hospital in their hands were not there. Mayor Welsh didn’t work there. Uh, commissioner Bill Elliot Judge, the county judge did not work there. 

Dan: But THEN, there’s a turn. Somebody shows up. That’s right after this.

This episode of An Arm and a Leg is produced in partnership with Kaiser Health News. That’s a non-profit newsroom about health care in America. KHN is not affiliated with the giant health care player Kaiser Permanente. We’ll have more information about KHN at the end of this episode.

So, Jan de Hartog keeps slogging away. 

He gives a talk at a Baptist church– he reads that diary entry, the one with the bedpans, and the absence of Judge Elliott and other leaders.

And at first he thinks he didn’t go over so big. Nobody even raises their hand to volunteer. 

But then it happens. 

Jan de Hartog: When, uh, we were about to leave, a man turned up with a baby on his hip who said, uh, do you train people at night?

Dan: And the guy seems to be looking around, trying to make sure nobody’s listening. De Hartog tells the guy, yeah, we could do that…

Jan de Hartog: He said, I mean, a dead of night without anybody seeing. 

Dan: De Hartog’s like, “um, sure, I guess. Why, though?” 

Jan de Hartog: He said, well, I am Judge Elliot, 

Dan: Judge Elliott. The county judge. Probably the most powerful politician in town. That’s who wants to volunteer. In secret. Without anybody seeing. He says to de Hartog

Jan de Hartog: I cannot do it as a judge, but I must do it as a man. And that was the moment that the whole damn thing changed.. 

Dan: Because Judge Bill Elliott followed through.

Ricardo Nuila: He trains himself in a clandestine manner to be an orderly, at night, and he verifies everything that de Hartog has said. 

Dan: de Hartog actually oversees the judge’s final practical exam, where Bill Elliott tends to an African-American man named Willie Small. 

Jan de Hartog: the judge with his thermometer went and put his hand on Willie’s shoulder and said, Mr. Small, sir, I’d like to take your temperature to hear that, to hear a southern judge, , say “Mr. Small, sir” 

Dan: It was a symbolic moment. The judge had to touch, had to defer to, a Black man. So not only had the judge now seen everything, he took responsibility for what he had seen. 

There’s a proposal for a county-wide property tax, to fund what’s called a Hospital District. Now there’s a referendum, and Elliott backs it all the way.

Jan de Hartog: and we all waited with baited breaths for the outcome. And it was no

Dan: Yeah. The referendum fails. And as de Hartog tells it, once it does, a real backlash starts to build. It gets personal.

Jan de Hartog: those who had resented our presence from the very beginning became vocal. Margie and I, were called communists

Ricardo Nuila: De Hartog just would not flinch. I mean, he and his wife’s lives were threatened. 

Dan: Also, somebody threw a bag of excrement at their door. 

Eventually, de Hartog says the Red Cross, which was training and supervising volunteers at the hospital, came to him and Marjorie and said, “It might be better for us if you left town for a while.” 

They did — went on to all kinds of adventures. 

Meanwhile, Bill Elliott kept pushing, and keeps pulling in allies– including, eventually, the Medical Society. 

Ricardo Nuila: he rallies them to get behind it.

Dan: He gets the question on the ballot AGAIN later that same year. And it passes in November 1965. 

It’s a big moment. 

Ricardo Nuila:  What’s also interesting is that it’s forgotten. Something that I’ve gleaned from all this is that you know, people will forget and you have to remind them. 

Dan:  And while we’re remembering: In 1965, the whole country is making some big commitments to health care for a lot of people. President Lyndon Johnson signs Medicare and Medicaid into law in July of that year.

It’s probably also worth noting that Medicare and Medicaid help make Ben Taub possible: About a third of the hospital’s patients are on one or the other. It’s a minority of patients, but it’s many millions of dollars of funding. 

The 1960s were a notoriously divisive time. And so is this. 

Ricardo Nuila doesn’t ignore today’s political polarization — or how that polarization makes it hard to imagine a national conversation about creating a different health care system. 

Or the role that doctors have historically played in resisting that conversation.

It’s part of his story. His family story. And in a book about a place where a lot of sad things do happen, this may be the toughest one.

Ricardo Nuila: I was born into a family of doctors and my dad in many ways was a hero to me. I saw how much pride he took in his work of being a doctor 

Dan: But over time– as insurance companies got tougher to deal with– the business side of running a medical practice looked a lot less apealing. 

Ricardo Nuila: . He had to hire more and more staff. He hired his mother, my grandmother, who is, uh, the type of person not to back down from Chicago, you know, . And so, her job was to be on the insurance companies to make sure that they wouldn’t, screw him out of money.

Dan: His dad turned away patients who didn’t have insurance. His dad growled and grumbled– about insurance companies, and about patients who didn’t have money to pay. 

When Ricardo finished college and got into medical school, he put off starting for two years. What he sees as his dad’s life in the business of health care is not appealing.

Ricardo Nuila: the grind wears on him, you know? The fighting with the insurance companies

Dan: I mean in the book, your dad is a bit of a stand-in for . For doctors as a doctoring, as profession and the, and the way in which doctors get alienated from medicine. 

Ricardo Nuila: yeah, he is a stand in a bit for doctors. And it’s gonna be, I think the doctors have a lot to say about how healthcare goes in America,

Ricardo Nuila: And unfortunately, the history shows that they haven’t been a great piece of that, at least as far as universal healthcare is concerned. 

Dan: This becomes part of Ricardo’s story with his dad. Dad invites him to form a family practice. Ricardo chooses Ben Taub. And over the years, it becomes clear: They’re on opposite sides of a political divide. There are painful conversations, and then they go months without speaking. 

Ricardo Nuila: that’s how deep politics run, you know, it’s really, it’s really difficult when you overlay like politics onto like a family dynamic,

Ricardo Nuila: It just felt like he was like totally on board with this idea that, you know, healthcare is something that is earned and healthcare is something that people, if you can’t afford it, you don’t deserve it. Is what I heard from what he was saying. 

Dan: is your dad an ideal reader of the book? Is your dad kind of who the person you wanna make that case to? 

Ricardo Nuila: That’s really interesting.

Ricardo Nuila: I would say this, that, I did not write this to preach to the choir for sure.

Dan: But he’s not sure his dad would actually pick up a book like this.

Ricardo Nuila: It’s just because I know my dad, he, my dad’s the type of person who reads John Grisham on a beach, you know? So I’m not a hundred percent sure if he would pick up this book, you know?

Dan: Unless, say, his son wrote it. Ricardo does expect his dad to read The People’s Hospital. And even if he doesn’t agree with everything his son has written, Ricardo thinks his dad will be proud.

Ricardo Nuila: I can tell you now as a, as a father, , it’s not clear that your kids are gonna come out Okay. . You know what I mean? I’m just saying that like he has reason to be proud just because I’m a, a living and breathing person right now, you know?

Ricardo Nuila: And I’m, I’m working in as a doctor. So I, I feel, I feel good for him. 

Ricardo Nuila: And I think that he’s probably very happy that I wrote about medicine cuz he loves medicine.

Dan: The last chapter of “The People’s Hospital” is called “faith” And in it, Ricardo Nuila describes a daily ritual that he says keeps him grounded. It starts with passing a plaque on his way in. Of course I have him show it to me. 

Ricardo Nuila: I park like right over there, .

Ricardo Nuila: I come in here and I just look at, look at this every time. 

Dan: So, and describe what we’re seeing here.

Ricardo Nuila: Well, we’re seeing, a plaque that, talks about when this hospital was founded, and the people who constructed the building. And there’s also the, I forgot this is, this is bad of me, but I forgot the name.

Dan: the snake around the stick?  

Ricardo Nuila: I’m in big trouble now because I’m on the Caduceus Caduceus. I, it’s the Cadus. Yeah. 

Ricardo Nuila: And it’s just a reminder, you know, that we have this structure in place to help care for people who don’t have, uh, the means and that, and 

Dan: that people decided to put this building here. Yeah. 

Ricardo Nuila: Exactly. It’s a community effort.

Dan: Ricardo Nuila writes that he sees that community as he walks from that plaque to his desk– all the co-workers, in every kind of job, doing their best. 

And this is the faith that he says gets affirmed— reading from the book here: 

If someone is suffering and there is the capacity within the community to help, in a way that doesn’t harm anyone else, then we not only owe it to that person, we owe it to ourselves to help. 

Whatever your politics are, I think that’s pretty great. 

Dr. Ricardo Nuila practices at Ben Taub Hospital. He’s associate professor of Medicine, Medical Ethics and Health Policy at Baylor College of Medicine. His book is called “The People’s Hospital.”

Honestly there’s a lot in this book, — more patient stories, more family stories, a very deft summary of a hundred years of health care economics and politics.

I’ll tell you: reading this book, I was reminded of an idea I’ve had before.  That it might be cool someday to convene a kind of “Arm and a Leg” book club. Because I’d like to have someone to talk with about a book like this– like maybe you. 

Right now, that’s just an idea. The how would take a LOT of figuring out.  

But I’m curious how that idea sounds to you. You can let me know at Arm and a Leg show dot com, slash contact.

I mean, that’s always a good place to send ideas and stories and questions— so many of our best episodes come from you.

And I’m curious what you think about this virtual book club idea. If you’ve taken part in something like this, or helped to organize it, I’d love to hear how it went.

That’s arm and a leg show dot com, slash contact.

Next time on An Arm and a Leg: A woman named Lisa French asked her hospital what her surgery would cost her. They said, with your insurance, about thirteen hundred bucks.

They expected about 55 thousand more from insurance. 

They got 75 thousand. But then they wanted more. 229 thousand more. They wanted it from Lisa French, and they sued her for it.

After eight years, the case finally got resolved last June. Lisa French won!

The case has a LOT to teach us about our legal rights. 

That’s next time on An Arm and a Leg.

Till then, take care of yourself.

This episode of An Arm and a Leg was produced by me, Dan Weissmann, with help from Emily Pisacreta, and edited by Afi Yellow-Duke.

The recording of Jan de Hartog’s lecture is courtesy of the Baylor College of Medicine Archives. 

The audio of Bill Elliott is from a KHOU-TV newscast, thanks to the Texas Archive of the Moving Image.

Big thanks to the archivists who helped us find some of the tape for this episode! 

That includes Emily Vinson at the University of Houston library 

Matt Richardson and Sandra Yates at the Texas Medical Center Archives

And David Olmos at the Baylor College of Medicine archives. 

Daisy Rosario is our consulting managing producer. Adam Raymonda is our audio wizard.  Our music is by Dave Winer and Blue Dot Sessions. 

Gabrielle Healy is our managing editor for audience. She edits the First Aid Kit Newsletter. 

Bea Bosco is our consulting director of operations. Sarah Ballema is our operations manager. 

This season of an arm and a leg is a co production with Kaiser health news. That’s a nonprofit news service about healthcare in America, an editorially-independent program of the Kaiser family foundation. 

KHN is not affiliated with Kaiser Permanente, the big healthcare outfit. They share an ancestor: The 20th century industrialist Henry J Kaiser. When he died, he left half his money to the foundation that later created Kaiser health news.

You can learn more about him and Kaiser health news at arm and a leg show dot com slash Kaiser. 

Zach Dyer is senior audio producer at KHN. He is editorial liaison to this show. 

Thanks to Public Narrative — That’s a Chicago-based group that helps journalists and non-profits tell better stories– for serving as our fiscal sponsor, allowing us to accept tax-exempt donations. You can learn more about Public Narrative at www dot public narrative dot org. 

And thanks to everybody who supports this show financially. 

If you haven’t yet, we’d love for you to join us. The place for that is arm and a leg show dot com, slash support.

Thank you!

“An Arm and a Leg” is a co-production of KHN and Public Road Productions.

To keep in touch with “An Arm and a Leg,” subscribe to the newsletter. You can also follow the show on Facebook and Twitter. And if you’ve got stories to tell about the health care system, the producers would love to hear from you.

To hear all KHN podcasts, click here.

And subscribe to “An Arm and a Leg” on Spotify, Apple Podcasts, Stitcher, Pocket Casts, or wherever you listen to podcasts.

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

USE OUR CONTENT

This story can be republished for free (details).

Rep. Lloyd Doggett (D-Texas) said he decided to introduce a bill in the House late last week after KHN’s reporting revealed what he called a “shocking loophole.”

“The ability of fraudsters to continue billing Medicare for services is outrageous,” Doggett said. “This is an obvious correction that is needed to safeguard our system. Wherever there are large amounts of government money available, someone tries to steal it.”

KHN found a laundry list of weaknesses that allows people accused or convicted of fraud to easily sidestep bans imposed by federal officials. Among those gaps is the Centers for Medicare & Medicaid Services’ lack of authority to deny or revoke National Provider Identifier, or NPI, numbers after federal regulators have prohibited a person or business from receiving payments from government programs.

Doctors, nurses, other practitioners, and health businesses use the unique, 10-digit NPI numbers to bill and file claims with insurers and others, including Medicare and Medicaid.

Taking away the NPI would “be equivalent of prohibiting a practitioner from practicing in total,” Dara Corrigan, director of CMS’ Center for Program Integrity, wrote in an email response to questions about KHN’s investigation. CMS declined to comment on Doggett’s proposed legislation.

The bill, HR 1745, would give CMS the authority to deactivate NPIs tied to anyone convicted of waste, fraud, or abuse and whose name appears on the exclusions list kept by the Office of Inspector General for the U.S. Department of Health and Human Services. The proposed law would also require CMS to implement recommendations that the inspector general has made to improve NPI reporting and provider transparency.

“This strikes me as what should be an easy bipartisan measure,” Doggett said, adding that he had presented the bill in a face-to-face meeting with Rep. Jason Smith (R-Mo.), who chairs the House Ways and Means Committee. Doggett also alerted that panel’s health subcommittee chair, Rep. Vern Buchanan (R-Fla.).

“They both talk about the need to eliminate fraud, and this is one modest but important way to do it,” Doggett said. Neither Smith’s nor Buchanan’s offices responded to requests for comment.

The OIG declined to comment.

Former Justice Department officials told KHN that repeat violators are savvy and find ways to circumvent the system. KHN examined a sample of 300 health care business owners and executives who are among more than 1,600 on the OIG’s exclusion list since January 2017. Journalists reviewed court and property records, social media, and other publicly available documents.

KHN found:

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

Doggett’s bill is “a pretty smart step in the right direction in fixing this issue,” said John Kelly, a former assistant chief of health care fraud at the Department of Justice who is now a partner for the law firm Barnes & Thornburg. Kelly had previously recommended that NPIs should be “essentially wiped clean” when a person is on the exclusions list.

Kelly, who confirmed that Doggett’s office reached out to him after KHN’s investigation was published in December, said taking the NPI number away “certainly doesn’t eliminate all risk” but it’s a move “in the right direction.”

“If you want to bill Medicare, you have to have a valid NPI,” Kelly said.

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

USE OUR CONTENT

This story can be republished for free (details).

Less than two years after opening a state-of-the-art $26 million hospital in Leadville, Colorado, St. Vincent Health nearly ran out of money.

Hospital officials said in early December that without a cash infusion they would be unable to pay their bills or meet payroll by the end of the week.

The eight-bed rural hospital had turned a $2.2 million profit in 2021, but the windfall was largely a mirage. Pandemic relief payments masked problems in the way the hospital billed for services and collected payments.

In 2022, St. Vincent lost nearly $2.3 million. It was at risk of closing and leaving the 7,400 residents of Lake County without a hospital or immediate emergency care. A $480,000 bailout from the county and an advance of more than $1 million from the state kept the doors open and the lights on.

Since 2010, 145 rural hospitals across the U.S. have closed, according to the Cecil G. Sheps Center for Health Services Research at the University of North Carolina. But covid-19 relief measures slowed that trend. Only 10 rural hospitals shut down in 2021 and 2022 combined, after a record 19 in 2020. Two rural hospitals have closed already this year.

Now that those covid funds are gone, many challenges that threatened rural hospitals before the pandemic have resurfaced. Industry analysts warn that rural facilities, like St. Vincent Health, are once again on shaky ground.

Jeffrey Johnson, a partner with the consulting firm Wipfli, said he has been warning hospital boards during audits not to overestimate their financial position coming out of the pandemic.

He said the influx of cash aid gave rural hospital operators a “false sense of reality.”

No rural hospitals have closed in Colorado in the past decade, but 16 are operating in the red, according to Michelle Mills, CEO of the nonprofit Colorado Rural Health Center, the State Office of Rural Health. Last year, Delta County voters saved a rural hospital owned by Delta Health by passing a sales tax ballot measure to help support the facility. And state legislators are fast-tracking a $5 million payment to stabilize Denver Health, an urban safety-net hospital.

John Gardner took over as interim CEO of St. Vincent after the previous CEO resigned last year. He said the hospital’s cash crunch stemmed from decisions to spend covid funds on equipment instead of operating costs.

St. Vincent is classified by Medicare as a critical access hospital, so the federal program reimburses it based on its costs. Medicare advanced payments to hospitals in 2020, but then recouped the money by reducing payments in 2022. St. Vincent had to repay $1.2 million at the same time the hospital faced higher spending, a growing accounts-payable obligation, and falling revenue. The hospital, Gardner said, had mismanaged its billing process, hadn’t updated its prices since 2018, and failed to credential new clinicians with insurance plans.

Meanwhile, the hospital began adding services, including behavioral health, home health and hospice, and genetic testing, which came with high startup costs and additional employees.

“Some businesses the hospital was looking at getting into were beyond the normal menu of critical access hospitals,” Gardner said. “I think they lost their focus. There were just some bad decisions made.”

Once the hospital’s upside-down finances became clear, those services were dropped, and the hospital reduced staffing from 145 employees to 98.

Additionally, St. Vincent had purchased an accounting system designed for hospitals but had trouble getting it to work.

The accounting problems meant the hospital was late completing its 2021 audit and hadn’t provided its board with monthly financial updates. Gardner said the hospital believes it may have underreported its costs to Medicare, and so it is updating its reports in hopes of securing additional revenue.

The hospital also ran into difficulty with equipment it purchased to perform colonoscopies. St. Vincent is believed to be the highest-elevation hospital in the U.S., at more than 10,150 feet, and the equipment used to verify that the scopes weren’t leaking did not work at that altitude.

“We’re peeling the onion, trying to find out what are the things that went wrong and then fixing them, so it’s hopefully a ship that’s running fairly smoothly,” Gardner said.

Soon Gardner will hand off operations to a management company charged with getting the hospital back on track and hiring new leadership. But officials expect it could take two to three years to get the hospital on solid ground.

Some of those challenges are unique to St. Vincent, but many are not. According to the Chartis Center for Rural Health, a consulting and research firm, the average rural hospital operates with a razor-thin 1.8% margin, leaving little room for error.

Rural hospitals operating in states that have expanded Medicaid under the Affordable Care Act, as Colorado did, average a 2.6% margin, but rural hospitals in the 12 non-expansion states have a margin of minus 0.5%.

Chartis calculated that 43% of rural hospitals are operating in the red, down slightly from 45% last year. Michael Topchik, who heads the Chartis Center for Rural Health, said the rate was only 33% 10 years ago.

A hospital should be able to sustain operations with the income from patient care, he said. Additional payments — such as provider relief funds, revenues from tax levies, or other state or federal funds — should be set aside for the capital expenditures needed to keep hospitals up to date.

“That’s not what we see,” Topchik said, adding that hospitals use that supplemental income to pay salaries and keep the lights on.

Bob Morasko, CEO of Heart of the Rockies Regional Medical Center in Salida, said a change in the way Colorado’s Medicaid program pays hospitals has hurt rural facilities.

Several years ago, the program shifted from a cost-based approach, similar to Medicare’s, to one that pays per patient visit. He said a rural hospital has to staff its ER every night with at least a doctor, a nurse, and X-ray and laboratory technicians.

“If you’re paid on an encounter and you have very low volumes, you can’t cover your costs,” he said. “Some nights, you might get only one or two patients.”

Hospitals also struggle to recruit staff to rural areas and often have to pay higher salaries than they can afford. When they can’t recruit, they must pay even higher wages for temporary travel nurses or doctors. And the shift to an encounter-based system, Morasko said, also complicated coding for billing , leading to difficulties in hiring competent billing staff.

On top of that, inflation has meant hospitals pay more for goods and services, said Mills, from the state’s rural health center.

“Critical access hospitals and rural health clinics were established to provide care, not to be a moneymaker in the community,” she said.

Even if rural hospitals manage to stay open, their financial weakness can affect patients in other ways. Chartis found the number of rural hospitals eliminating obstetrics rose from 198 in 2019 to 217 last year, and the number no longer offering chemotherapy grew from 311 to 353.

“These were two we were able to track with large data sets, but it’s across the board,” Topchik said. “You don’t have to close to be weak.”

Back in Leadville, Gardner said financial lifelines thrown to the hospital have stabilized its financial situation for now, and he doesn’t anticipate needing to ask the county or state for more money.

“It gives us the cushion that we need to fix all the other things,” he said. “It’s not perfect, but I see light at the end of the tunnel.”

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

USE OUR CONTENT

This story can be republished for free (details).

El año pasado, Dorio le explicó a legisladores estatales que el problema era que el hospital tenía derecho a invalidar los deseos de la familia porque el paciente no había hecho un documento de directiva avanzada, ni había designado a alguien con poder notarial. El hospital optó por escuchar a la familia, pero según la ley del estado, los deseos de la familia no tenían peso.

Eso ya no es así. Desde el 1 de enero, California se sumó a otros 45 estados y al Distrito de Columbia con leyes que permiten a una persona tomar decisiones en nombre de un paciente, incluso si no estaba autorizada por el paciente antes de que ocurriera la situación médica.

La lista incluye cónyuges o parejas de hecho, hermanos, hijos y nietos adultos, padres y un pariente adulto o amigo íntimo; y en muchos casos, a las personas que llevaron al paciente para que lo atendieran en un primer momento.

“Los hospitales y las HMO podían usurpar los derechos de las familias y tomar decisiones médicas críticas en virtud de la ley vigente en aquel momento, incluidas las decisiones de desconectar al paciente”, explicó a KHN Dorio, especialista en geriatría de Santa Clarita y miembro de la organización no partidista California Senior Legislature. “Sabíamos que necesitábamos una ley como la que tienen la mayoría de los otros estados”.

Según datos analizados por investigadores de Penn Medicine, solo un tercio de los adultos estadounidenses tiene o bien instrucciones previas, que detallan lo que quieren sobre su atención médica, o bien un poder médico, que autoriza a otra persona a tomar esas decisiones.

Según sus partidarios, la finalidad detrás de la ley de parentesco es darles facultad a los representantes para que aboguen por los pacientes en lugar de permitir que un hospital tome las decisiones médicas, que pueden estar influenciadas por el costo, las camas disponibles o las presiones de los seguros.

“Esta ley libera de presión a los hospitales, a los que se pide que presten asistencia, salven vidas, se ocupen de Medicare, de los seguros… de muchas cosas a la vez”, afirmó Michele Mann, abogada de Valencia, California, especializada en planificación patrimonial, incluidas las directivas avanzadas.

Los derechos médicos de los pacientes han evolucionado a lo largo de los años, pero es un misterio por qué el estado ha tardado tanto tiempo en aprobar una ley de parentesco. Cuando la California Senior Legislature, que patrocina y promueve leyes destinadas a ayudar a la población de edad avanzada, pidió ayuda a la Oficina del Asesor Legislativo del Estado con el proyecto de ley algunos abogados se sorprendieron de ya no hubiera una ley vigente, dijo Dorio.

Los pacientes que no disponen de un documento de directivas avanzadas o de un poder notarial pueden designar a un sustituto, aunque solo sea declarándolo verbalmente en el hospital, pero, obviamente, es necesario que el paciente esté consciente.

Si un paciente llega a un hospital o centro médico incapacitado o lo está posteriormente, los proveedores deben hacer un esfuerzo de buena fe para encontrar a una persona autorizada a tomar decisiones médicas, según una ley de California en vigor desde 2005.

Los pasos incluyen revisar las pertenencias del paciente y ponerse en contacto con cualquier persona que el hospital “crea razonablemente que tiene autoridad” para tomar decisiones a través de directivas o de un poder notarial. El hospital debe demostrar que se ha puesto en contacto con el secretario de estado para preguntar si el paciente tenía instrucciones anticipadas.

Con la nueva ley vigente, los proveedores de atención médica deben comprobar si el paciente tiene directivas avanzadas o un poder notarial. Pero una vez que los funcionarios han determinado que no existe ninguno, pueden recurrir a la lista de parientes más próximos, todos los cuales están legalmente autorizados a hablar en nombre del paciente.

“Es innovador”, afirmó Mann, que toma decisiones por su hermana, que tiene esclerosis múltiple y vive en un centro de cuidados de largo plazo. “Con la lista de parientes cercanos, a menudo la persona que trae al paciente es un familiar o un amigo íntimo que conoce claramente los deseos del paciente. En esos casos, se acabó la búsqueda del hospital: hay un representante legalmente autorizado”.

El proyecto de ley AB 2338, presentado por el asambleísta Mike Gipson, agregó una sección al código de sucesiones, y se asemeja a la forma en que la mayoría de los estados maneja la división de los bienes de una persona después de su muerte.

En California, cuando una persona muere sin dejar testamento, sus bienes y propiedades se distribuyen siguiendo un orden de prioridad fijo y descendiente: primero el cónyuge, después los hijos, los padres, los hermanos, etc. Ahora, las decisiones médicas de una persona se decidirán de la misma manera, pero no necesariamente en el mismo orden.

California otorga a los hospitales y a los proveedores médicos la discreción de decidir qué familiar o amigo íntimo puede tomar decisiones médicas, una disposición introducida en el proyecto de ley después de que la influyente Asociación de Hospitales de California y otros grupos médicos se opusieran a una jerarquía pre establecida.

Algunos expertos se preguntan hasta qué punto será eficaz la nueva ley, ya que los hospitales conservan la facultad de elegir al representante del paciente, sobre todo si hay opiniones encontradas entre los miembros de la familia.

“Aunque no tengo motivos para creer que vayan a abusar del poder, los hospitales pueden decidir quién sería una buena persona para tomar decisiones”, dijo Alexander Capron, experto en derecho médico y ética, y profesor emérito de la Universidad del Sur de California.

Lois Richardson, vicepresidenta y asesora jurídica de la asociación de hospitales, dijo que un orden estricto de sustitutos a menudo no refleja lo que un paciente desearía. “La preocupación siempre ha sido que, en muchos casos, una jerarquía estatutaria estricta no refleja las relaciones familiares reales”, agregó.

El cabildeo de los hospitales abandonó su oposición después de que Gipson accediera a dar flexibilidad al sector, y la medida se aprobó en la legislatura prácticamente sin oposición.

Lo ideal sería que las personas dispusieran de un documento de directivas avanzadas para garantizar el cumplimiento de sus deseos, según Gipson. Pero para las personas mayores, las que viven solas y cualquiera que no tenga este documento, la ley abre el abanico de personas que pueden actuar en su nombre, incluido un amigo íntimo que bien podría ser de familia.

“Al menos así, tienes a alguien que sabe lo que quieres tomando esas decisiones”, indicó Gipson, “en lugar de dejarlo en manos de un hospital”.

Esta historia fue producida por KHN, que publica California Healthline, un servicio editorialmente independiente de la California Health Care Foundation.

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

USE OUR CONTENT

This story can be republished for free (details).