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.

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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.

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

The abortion pill mifepristone is now ground zero in the abortion debate. Late Wednesday night, the 5th Circuit Court of Appeals said the drug should remain on the market but under restrictions on distribution that were in effect before 2016, which ban prescribing by mail or by telemedicine. The restrictions would make it even more difficult for patients in states where abortion is illegal or widely unavailable.

The decision comes in response to a ruling last week out of Texas, where a federal judge, as was widely expected, found that the FDA should not have approved the drug more than 22 years ago and ordered it, effectively, unapproved.

Complicating matters further still, in a separate case filed by 18 attorneys general in states where abortion is largely legal, last week a federal district judge in Washington state ordered the FDA not to reinstate any of the old restrictions.

This week’s panelists are Julie Rovner of KFF Health News, Victoria Knight of Axios, Shefali Luthra of The 19th, and Sarah Karlin-Smith of the Pink Sheet.

Panelists

Sarah Karlin-Smith
Pink Sheet

@SarahKarlin

Read Sarah's stories

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories

Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Among the takeaways from this week’s episode:

• A late-night decision by the appeals court preserves access to mifepristone while the legal battle continues. But it also resurrects outdated limitations on the drug, meaning mifepristone can be used only up to seven weeks into a pregnancy, among other restrictions.
• While it is expected that the U.S. Supreme Court will ultimately decide the drug’s fate, some providers and state officials are rushing to stockpile it. Cutting off access to the abortion pill puts extra pressure on clinics in states where abortion remains legal, which are also serving women from so-called prohibition states and could see an influx of patients as mifepristone becomes difficult — or impossible — to get.
• Republicans largely have remained quiet about the ruling overturning mifepristone’s FDA approval. While many in the party support banning the drug, they likely recognize the political risks of broadcasting that stance. Meanwhile, the Biden administration moved to strengthen privacy protections for patients and providers related to abortion, offering some reassurance to those who fear they could be prosecuted under their home state laws for seeking abortions elsewhere.
• As Southern states have whittled away at abortion access, Florida, with its 15-week abortion ban, had emerged as a hub for patients across the region. This week the state moved to restrict the procedure to six weeks, a change that could send many patients scrambling north to states like Virginia and New York for care. And in Idaho, a new law makes “abortion trafficking” — or transporting a minor to have an abortion without parental consent — a crime.
• Congress is exploring new drug pricing measures, particularly aimed at increasing transparency around pharmacy benefit managers and capping insulin costs. Lawmakers are also watching the approach of the debt ceiling threshold; in the mix of budgetary pressure valves are Medicaid and, potentially, work requirements to receive Supplemental Nutrition Assistance Program benefits.
• Congress continues to show little appetite for addressing a different, intensifying public health crisis: gun violence. A new poll from KFF shows startlingly high numbers of Americans — especially people of color — have directly experienced gun violence and live with that threat every day.

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

Julie Rovner: The Washington Post’s “To Comply With a New Sesame Allergy Law, Some Businesses Add — Sesame,” by Karen Weese.

Shefali Luthra: KFF Health News’ “For Uninsured People With Cancer, Securing Care Can Be Like Spinning a Roulette Wheel,” by Charlotte Huff.

Victoria Knight: The Washington Post’s “Research With Exotic Viruses Risks a Deadly Outbreak, Scientists Warn,” by David Willman and Joby Warrick.

Sarah Karlin-Smith: NBC News’ “Conspiracy Theorists Made Tiffany Dover Into an Anti-Vaccine Icon. She’s Finally Ready to Talk About It,” by Brandy Zadrozny.

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Transcript: The Confusing Fate of the Abortion Pill

KFF Health News’ ‘What the Health?’Episode Title: The Confusing Fate of the Abortion PillEpisode Number: 293Published: April 13, 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 are taping this week on Thursday, April 13, 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 by video conference by Victoria Knight of Axios.

Victoria Knight: Good morning.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Well, no interview this week, but spring is busting out all over with health news, so we will get right to it. We will begin in Texas with that court case that we’ve been saying for the last few weeks we hadn’t gotten a decision in. Well, we got a decision last Friday night around dinnertime and then very early this morning — that’s Thursday — we got an appeals court decision, too. But let’s take them one at a time. Last Friday night, in an opinion that was shocking but not surprising, as many people put it, Trump-appointed federal District Judge Matthew Kacsmaryk effectively rolled back the Food and Drug Administration’s 22-plus-year-old approval of mifepristone; that’s the first of two pills used for medication abortion early in pregnancy. Literally within the hour, federal District Judge Thomas Rice in Spokane, Washington, ruled in a separate case — brought by a group of about a dozen and a half state attorneys general — basically the opposite, ordering the FDA not to alter the current availability of the drug. Judge Kacsmaryk in Texas very kindly stayed his stay until this Friday to allow the Biden administration to appeal to the also very conservative 5th Circuit Court of Appeals. And in the wee hours of today, Thursday, an appeals court panel ruled that, while this lawsuit proceeds, mifepristone can continue to be sold, but only under the extremely onerous restrictions that were in effect until 2016. Shefali, where does that leave us? It’s kind of a mess, isn’t it?

Luthra: It is a huge mess, and the implications will be really significant. In particular, the 2016 restrictions on mifepristone don’t allow telemedicine. You have to go in person to a doctor to get the medication, and you can only use it up to seven weeks of pregnancy, when all of the evidence we have, including from the World Health Organization, says 10 weeks, sometimes maybe even 11. And I mean, we know realistically that people are taking mifepristone far later in pregnancy now because they can’t access legal abortion. And what this is going to do if it takes effect is it’s going to put a real strain on abortion clinics in states that have become destinations, right? The ones that are seeing so many out-of-state patients that largely do medication abortions because it’s easier, it’s faster, it pays a little bit better — all of these reasons that you do it —and that have really come to rely on telemedicine: Either they will have to take much longer to do this process and only do it for a handful of the patients they’re seeing, or they’ll switch to what we’ve talked about before, the misoprostol-only regimen, which is more painful, which is less effective. Still very good at terminating a pregnancy, but has a higher failure rate. And what clinics have told me is very often they expect that patients, when they hear that these are their options, will opt for a procedural abortion instead because that they know will absolutely work and they have to go home. They don’t worry about coming back to the clinic and worrying that they need an abortion again.

Karlin-Smith: I just want to put in the caveat that, you know, off-label use, which is where doctors prescribe a drug for use not approved for FDA, is something they do have sort of the discretion to do in practice of medicine once the product’s available. So the rollback is significant, but practically a lot of doctors will have the flexibility to still treat patients up to the longer timeframe. And people have pointed out this morning that, actually, many doctors were doing that prior to FDA formally expanding the approval.

Luthra: And to your point, many states have been stocking up on mifepristone in particular, and so have many abortion clinics, and they plan to use it as long as they can. The real challenge, I think, will be if there are supply issues at some point or other sorts of decisions from the Supreme Court, etc., or enforcement actions that essentially don’t allow telemedicine anymore.

Rovner: What it looks like the 5th Circuit has done is made it much harder for people in states where there are abortion bans to go to other states or to not go to another state but get the abortion pill, because they’ve banned it by mail; they’ve basically stopped in its tracks what we’ve been talking about for weeks — the ability of pharmacies to start to distribute it — because until 2016 you had to go — the doctor had to physically hand you the pill, which is what we are back to, and there have to be three visits in order to complete a medication abortion. These were all sort of the pre-2016 requirements. And the big question, though, is in Washington state, the requirement was that the FDA not change any of the relaxed restrictions. And now the 5th Circuit has said, yes, you will. So this still is on a fast track to the Supreme Court, right?

Luthra: It feels very like this is going to be decided by the Supreme Court. I mean, I wouldn’t be surprised if we hear about an appeal today. I wouldn’t be surprised if we hear about it tomorrow. It feels like really this could have changed between us taping and the podcast releasing.

Rovner: I think that’s entirely possible. So one of the things we thought Judge Kacsmaryk might do was order the FDA to basically restart its approval process for mifepristone, since his reasoning for rescinding essentially the drug’s approval is that the FDA violated its own procedures. Ironically, this decision came in a week when the FDA did withdraw the approval of a drug, a medication to prevent preterm birth called Makena. Sarah, what’s this drug and why is the FDA pulling it off the market? And this is how it’s supposed to work, right?

Karlin-Smith: Yes — supposed to work maybe is a stretch, depending on how some people felt about Makena; they felt it took way too long for FDA to withdraw it. So two sides of a coin, I suppose. But after a very long process, FDA finally pulled a drug that is given to women with the idea that it might help them deliver later, once their baby was full term, and prevent complications that come from having a premature birth. Unfortunately, over the years, as more clinical research was done on the drug, it appeared that it was not actually doing that. And as like all drugs, there are some side effects. And FDA basically ended up deciding, you know, absent any benefit, all you have is risk and this drug should not be pulled off the market. So it was finally pulled off the market after quite a lengthy process this week, right? It was still this week, or was it — no, it was last week.

Rovner: I think it was last week.

Karlin-Smith: Time. Time —

Rovner: Time is a very flat circle right now.

Karlin-Smith: Yeah, and so unfortunately it was really the only approved product that could possibly prevent preterm birth. And FDA really tried to recognize that and understand that people would be frustrated without options. But they tried to really emphasize the point that having an ineffective option is not the answer to that problem. The answer there is sort of push for more research on other products or even on this product to figure out if there’s a population of women it might benefit.

Rovner: So I wanted to mention that, because obviously the mifepristone ruling has the impact to affect much, much more than just abortion drugs. Individual drug companies are, to use the vernacular, freaking out about the idea that they could spend millions of dollars to shepherd a drug through clinical trials and the FDA approval process, only to see it banned because some small group of people object to it for some non-medical reason. Sarah, you cover the FDA. Is this freakout warranted right now?

Karlin-Smith: I do think most people think it is. And, you know, even in my preliminary look at what the 5th Circuit did this morning, I think that freakout is still going to continue because they seem to still give like this wide breadth that would allow many people to have the ability to challenge FDA approval decisions for any drug and then let judges weigh in who may not have the expertise and based on the science and all that other stuff that FDA has. So I think as this case has proceeded there’s still this underlying threat to the FDA’s authority and how they make decisions. Again, in the Texas case, he wasn’t trying to push it back to FDA and say, “OK, FDA, you go review this drug and decide again whether it needs to do it,” and then, you know, set them up for a Makena-like process where they would have to go through it. You know, they were trying to fast-track and overrule FDA’s authority. And if you read some of the details of the brief, you can really understand why it freaks out pharma and the FDA so much, because you can just tell how little the judge gets about how drugs are approved, the science, the regulatory process, and so forth.

Rovner: And basically that you have judges who are making medical and scientific decisions for which they are observably not qualified.

Karlin-Smith: Right, and I mean if nothing else industries likes stability, they like predictability, so there’s just this element of incredible unpredictability when you would have all these judges and potential legal cases throughout the country that would make it hard for them to deal with — and figuring out how to defend their products.

Rovner: So the FDA is obviously in an impossible situation here. They cannot satisfy both the Washington decision and the Court of Appeals decision because one says you can’t roll it back and one says you have to roll it back. Do we have any idea what the FDA is going to do here?

Luthra: I don’t know that we do. I mean, the Biden administration has said that they will follow the court orders, but the court orders are in conflict. So it seems like there should be some more clarity, perhaps, that we get. We, as of taping, haven’t gotten any statement from the president or the vice president or HHS, so we’ll keep an eye out and see if they have even just words of wisdom to offer about what this means or how they feel about the decision. But at this point, a lot is still quite confusing.

Rovner: So the Biden administration did take other action on abortion this week, in some separate steps. It announced Wednesday a series of new privacy protections for women and providers seeking or giving reproductive health care. How big a deal are these new rules, which sort of expand the HIPAA privacy rules? And why did it take them almost a year to do this? Hadn’t they been talking about this like right after the Dobbs ruling?

Luthra: They had been talking about this for a while. And what they said was that they believed that the guidance they had given to providers was sufficient to protect patient privacy. That has clearly not been the case, because we have continued to hear from people seeking abortions and from the health care providers giving them that they do not feel safe, right? They constantly have this fear that if I put something in someone’s medical record about an abortion, someone else might see it and it could get reported. So this should make that very clear beyond the guidance that was given out last summer — should make very clear that if you get an abortion, your doctor does not have to and should not tell any law enforcement about what happened. I think this has the potential to be really significant because one thing that we hear constantly from the people who are traveling out of state is they are terrified that they are breaking the law and that someone is going to find them, even though —

Rovner: That they’re breaking the law of their home state.

Luthra: Mm-hmm. Even though, of course, the home state laws do not criminalize the people who are seeking abortion.

Rovner: Yes. Well, I want to turn to the politics before we leave all of this. Democrats at all level of government were quick to decry this decision as wrong, anti-democratic, small d, and various other things. Republicans were a lot slower to react. How big a problem is abortion becoming for the Republican Party? They seem to be getting even more split on, “Gee, we thought that maybe overturning Roe was what we wanted and we were going to leave it at that.” And apparently anti-abortion activists are not leaving it at that.

Luthra: I mean, I think a great example of how Republicans are trying to navigate this problem is Congresswoman Nancy Mace, who, we may all recall, the day that Roe was overturned, put out a statement, like so many Republicans, saying that this was a great decision, very good for the country, the right step forward — and has since then tried very deliberately to walk away from that and to recalibrate her image on abortion and was one of the ones to come out this week and denounce the opinion from the District Court in Texas. Republicans who are willing to praise the decision in particular to take medication abortion off the market or to further restrict it, which is so unpopular, are finding themselves in a really tough spot. This is a winning issue for them and all they can really hope, and what we saw in the midterms, is to not talk about and to try and change the subject to something else.

Knight: I think important to note also that there were a good number of Republicans in Congress — think it was 69 — that signed on to an amicus brief both supporting the original lawsuit, this Texas lawsuit, and then also this decision when it came out.

Rovner: Right. This is an amicus brief to the Court of Appeals urging them to uphold the original decision.

Knight: Yeah. There were two amicus briefs , and a good number of congressional Republicans. — yeah, first for the original court case and then for the Appeals. But it was very noticeable that most of the Republican offices did not issue any kind of statement when this decision came out last week. So they’re fine supporting, putting documentation forward, supporting it, but they’re not broadcasting it, if that makes sense. And so I think that was very telling. It really was only Sen. Cindy Hyde-Smith, who is the Senate lead of the Pro-Life Caucus, that put something out. But it was very quiet among the rest of the Republicans, yeah.

Rovner: I noticed with that amicus brief, it’s like, OK, they’re going to say on the down-low to the anti-abortion activists, “We’re with you, but we really don’t want to publicize this because it’s not terribly popular with a lot of people.”

Luthra: To build on that, one example of someone who is really trying to walk that line and seems like is maybe facing challenges is Ron DeSantis, right? The person who did this compromise ban last year, the 15-week abortion ban, and now has clearly realized that if you want to be a nationally prominent Republican with support from the very powerful anti-abortion movement, you can’t do that; you need to be more overt in your disapproval of abortion and willingness to restrict access. But at the same time —

Rovner: Well, you’re anticipating my next question, which is that there is other abortion news this week. And in Florida, the legislature seems like it’s on the cusp of approving a six-week abortion ban to supplant the 15-week abortion ban it passed last year. And the aforementioned governor DeSantis says he will sign that if it comes to him. But Shefali, you’ve written about this. This could impact a lot more than just the people of Florida, right?

Luthra: I think it’s really important to note that Florida is the third-biggest state in the country and currently the biggest state in the eastern south part of the country where abortion is legal, even if it is only available up to 15 weeks. I have been to the clinics in Florida. It is stunning how crowded they are. There are people coming from all over the South. People are working until midnight to try and see every patient they can. And without Florida, the options are North Carolina and South Carolina. South Carolina clinics, there are very few of them, and they don’t go very far, not because of current state laws, but just because of the providers in the state. North Carolina is also looking likely to have some kind of abortion ban passed this year and again has way fewer clinics than Florida. If Florida is banning abortion after six weeks, a very, very large chunk of the country is going to be almost entirely displaced. The math just doesn’t really work. And we don’t know where people will be able to get abortions other than traveling, frankly, to Virginia, to D.C., to New York, and to all the places that so far, data shows, haven’t been as affected by out-of-state travelers.

Rovner: And of course, with the Court of Appeals decision basically saying that you can’t mail the abortion pills and that you can’t do it by telemedicine, I mean — which is not to say that people aren’t going to continue to get them by mail. It’s just that it won’t be FDA-sanctioned the way it was going to be. So Idaho is also making abortion news. This this feels like an afterthought, even though last week it seemed like a big deal. They have enacted a bill there creating the crime of abortion trafficking, which is the act of any adult transporting a minor for an abortion without her parent’s consent. Now, in the late 1990s and the early aughts, Republicans in the U.S. Congress tried unsuccessfully to pass something called the Child Custody Protection Act, which would have criminalized taking a minor across state lines for an abortion. But Idaho can’t do that. Only the federal government can regulate interstate travel. So this Idaho law just applies to the in-state portion of the trip. But it could still be a big deterrent, right? Unless you live right on the border. If you’re trying to take somebody out of state, you’re going to have to do part of it in state.

Luthra: I mean, of course. And I mean, Julie, I wanted to ask you about this because this is not actually a new kind of restriction. There are a bunch of states that have passed these, quote-unquote, “child trafficking laws” that restrict minors traveling out of state for abortion. Idaho is the first one to do it post-Dobbs. But for some reason, the anti-abortion movement has always had far more success in restricting access to minors. I think we’re all paying more attention now because we realize that this could in fact be the first step toward that thing that Justice Kavanaugh said would not happen, right? The larger-scale restriction of travel out of state for abortions.

Rovner: Yes. Restricting abortion for minors has been sort of the soft spot for the anti-abortion movement, really from the very beginning, because even people who consider themselves in favor of abortion rights, as we’ve seen this year with books — you know, parents are really like, “We want to be in charge of our daughters, and if my daughter needs my permission to get her ears pierced, she should need my permission to get an abortion or, God forbid, travel out of state or get contraception.” This is actually — it’s the minor issue that’s the reason that the Title X, the Family Planning Program, has not been reauthorized by Congress since 1984, which was before I started covering it. Oh, it’s my favorite piece of reproductive health trivia, because every time Congress tried to do it they got hung up over this question of should minors be able to get contraception without their parents’ approval. It is a continuing thing, but I think Idaho probably got more attention because they call this “abortion trafficking,” so we have a new law. All right. Well, there actually is other news this week that does not have to do with abortion. Congress next week will return from its two-week Easter/Passover break. And apparently at the top of the agenda in the Senate is a bill focusing on drug prices and particularly on pharmacy benefit managers. Even the Republican-led House is looking at PBM legislation. Sarah, remind us, what are PBMs and why are they so very unpopular among both Democrats and Republicans?

Karlin-Smith: So PBMs are companies contracted by your health insurance company or now, at this point, often owned by your health insurance company, that administer your pharmacy benefits, and they create the formularies that decide what drugs are covered and how much you are going to pay for them. And then they negotiate deals with pharmaceutical companies to try and lower the prices of drugs. And they also have to work with the pharmacies. So they’re called middlemen, often in a not very nice way. The drug industry has definitely tried to paint them as the key reason prices are too high, saying they give them discounts but they’re not passing them on to patients. It’s a bit more complicated than that. PBMs essentially say they do pass on that money to patients in the U.S. system but it ends up lowering everybody’s premiums, so not necessarily the person who’s paying for the high-cost drug. Of course, it’s a lot more complicated, because this is an industry, I think, surrounded by a lack of transparency. So it’s been hard for people, I think, to verify who’s getting that money and is it all really going to patients? And then, like I mentioned, this consolidation with health insurance companies, with parts of the pharmacy system as well, has started to raise a lot of kind of antitrust concerns and, again, that they may not be working in patients’ best interests.

Rovner: And a lot of this legislation is about transparency, right? It’s about sort of opening the black box of how PBMs set drug prices and negotiate with drug companies and pass these things along to insurers. I see you nodding, Victoria.

Knight: Yeah, and there’s a lot of different bills floating out there. There’s some that have passed out of committee in previous Congress that passed out of committee again, most notably a Senate Commerce bill — Chuck Grassley and Maria Cantwell — and that just passed out of committee, and that would implement some transparency measures, also ban the practice of spread pricing. There is some talk that Schumer may put a health package on the floor sometime soon, and so PBMs are going to potentially be a big part of that. There’s also supposed to be a markup sometime this month out of the Health, Education, Labor, Pensions Committee, where they also are talking about PBMs. So it’s interesting that there is a real movement on both sides of the aisle, also in the House, on PBMs. So they want to put some blame on high drug prices on someone. And right now it seems to be PBMs.

Rovner: And it looks like they’re going to go after insulin again, too, right? In the bill that passed last year they managed to cap insulin costs at $35 a month, but only for people on Medicare. So I guess this is the attempt to come back and require lower insulin prices for others. We will point out that many of the companies have voluntarily lowered some insulin prices, but looks like Congress not done with this yet, right?

Knight: No, it’s not done with it yet. Bernie Sanders is apparently going to haul some insulin execs in to have to testify, even though some of them have committed to lowering prices. And it’s also mentioned in the potential Schumer package, that $35 cap for everyone is supposed to be a part of it. And there’s also a lot of insulin $35-cap bills floating around. There is some Republican support in the Senate for that. There were some Republicans last year that voted for that. But I think the House will be the bigger issue, because there doesn’t seem to be as much Republican support in the House for a cap that extends to everyone.

Rovner: Yeah, but I mean, when we said sort of back in January that there might be some things that they could do on a bipartisan basis, it sounds like we’re starting to see some of them — now that it’s spring — blooming. So anything else that you are looking for this next session between, you know, Easter and Memorial Day?

Knight: I think also, I don’t know how much people are paying attention to this, but there is going to be one of those select subcommittee covid hearings next week and they’re bringing in some intelligence officials to talk about covid origins. So I think this is the first hearing with actual, like, intelligence officials. So I think it’ll be interesting to see what comes out of that. And obviously, there’s a lot of talk around, like, that practical policy implications are that Congress could kind of restrict NIH [National Institutes of Health] funding or how NIH gives out research funding because of all this talk around gain-of-function research in regards to covid origins. So I think that’s what we’re watching for rather than just the rhetoric around it, like what are the actual — how could it play out in regards to NIH funding? And then of course, can’t forget debt ceiling negotiations and work requirements are still very much being talked about.

Rovner: For Medicaid.

Knight: For Medicaid and also SNAP [Supplemental Nutrition Assistance Program] potentially. So there was reporting this morning from Punchbowl saying that work requirements are very much still in the proposals that are being kicked around. So, another thing to watch.

Rovner: May is traditionally a very busy month on Capitol Hill, particularly May of the odd-numbered year, the first year of a Congress, so I imagine we’ll see a lot. One last thing I want to talk about this week, and we haven’t talked about it for a while, but the toll of gun injuries just continues to mount. In the past three weeks, we’ve had mass shootings with multiple fatalities in Tennessee, Kentucky, and Florida. In Louisville, in fact, the mayor, who himself survived a mass shooting last year, lost a close friend in the shooting this week. So it’s not all that surprising that a new poll from my colleagues over the editorial firewall at KFF found that gun violence is so common that more than one in five Americans say they have personally been threatened by a gun. Nearly as many say a family member has been killed by a gun; 17% say they have personally witnessed someone being shot. The numbers are even worse for people of color. Nearly a third of Black adults have witnessed someone being shot, and more than a third have lost a family member to gun violence. We seem to have acknowledged finally that gun violence is a public health problem. Yet that hasn’t brought us any closer as a society to solving it. I mean, we were just talking about the things that Congress might be looking at in terms of health care in the spring. But gun violence isn’t really one of them, is it?

Knight: Yeah. I think you’ve seen from the Biden administration and acknowledgment from both sides of the aisle in Congress that the bipartisan bill that passed last year, which gave a lot of money towards mental health funding and also allowed states the option to implement red flag laws and some other smaller gun safety things. They kind of acknowledged that’s as far as they’re going to be able to go in the current makeup of this Congress. So it seems like a stalemate and it’s kind of like now on a state level. And there was some talk from Tennessee’s governor about doing some small things, perhaps after the shooting in Nashville, but it doesn’t seem like there is much movement.

Rovner: And of course, in Tennessee, it was fighting about not doing anything about guns that erupted in that whole conflagration with people getting —

Knight: — expelled —

Rovner: —evicted from the Tennessee state legislature and then reappointed and yeah, I mean, that — people may not remember, that’s actually over a gun demonstration or a lack-of-gun-legislation demonstration. So who knows whether anyone will find something to do about it. All right. That is the news for this week. Now it’s time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: Sure. I looked at an NBC News story called “Conspiracy Theorists Made Tiffany Dover Into an Anti-Vaccine Icon. She’s Finally Ready to Talk About It.” This was a nurse who was one of the first people to receive a covid vaccine when it first became available. And apparently, I guess, this is something that’s been a problem for her, she says, throughout her whole life. Sometimes with certain pain reactions she faints. And the story also talks about how she hadn’t really eaten lunch that day. But basically it was filmed and shared quite widely, including all over social media, and anti-vaccine activists basically took it and were using it sort of as proof of the harm caused by the vaccines. And the reaction to that from the hospital, and herself to some degree, was basically to just kind of keep quiet and not respond. There was very little pushback, yet — the idea was kind of if we ignore it, it will go away. But that just kept fueling everything. And basically people thought she might have even been dead and no one was telling. They thought the hospital was using her co-worker as sort of a body double to show proof of life. And a couple of years later, she’s finally trying to talk about what that experience was like and make clear again: She was fine, she was healthy, you know, she was more than happy to get the vaccine, you know, would do it again and stuff. But it’s a really interesting story because I think the journalists sort of go through again how we’ve been sort of grappling as a society with how to respond to this type of misinformation and how some of the normal kind of PR playbook strategies are actually hurting, not helping, public health. So we need to kind of shift to figure out how to handle that.

Rovner: And there are lots and lots and lots of these stories about people who, you know, quote-unquote, “died” when they got the vaccine, who are perfectly fine and walking around. It was — it was a really well done story. It’s just — it’s really kind of scary. Victoria.

Knight: Victoria, my extra credit this week is a story in The Washington Post by David Willman and Joby Warrick. It’s called “Research With Exotic Viruses Risks a Deadly Outbreak, Scientists Warn.” And so it’s basically kind of an in-depth look at how, over the years, the U.S. has funded virus research where — in other countries — where people go out into like forests and wildlife areas and collect bat samples, collect samples from different animals to try to kind of predict the next pandemic. And it profiles this one team in Thailand who has said, “We’re not accepting U.S. funds anymore.” They told the U.S. in 2021 after covid, “This feels too risky for us.” And we — they have been doing this research funded by the U.S. for four years, and they really felt like they hadn’t found much tangible benefit out of it either. So they’re kind of like, “It’s not worth the risk to our employees and potentially creating another pandemic on our own.”

Rovner: And and just to be clear, this isn’t gain-of-function research.

Knight: This is not even gain-of-function research.

Rovner: This is a different kind of potentially dangerous research.

Knight: Yeah, this is really just going out in the wild and collecting samples from animals that are out there already. But yeah, it’s not doing research in a lab that’s like altering a virus necessarily. So yeah, and so the story is kind of reckoning — like what is the balance between wanting to do scientific research and needing that knowledge for the future and the safety of employees and the general public. So, and it talked about how there is like — the U.S. does fund quite a bit of this kind of research around the world, and the pace of that has not always kept up with regulation and oversight. And so just kind of probing questions, especially as I talked about earlier — Congress does look into this issue of gain-of-function research and just the NIH funding research around the world in general.

Rovner: I feel like this whole week has been, where do government and science cross? Shefali.

Luthra: My story is from the well-named KFF Health News. It is called “For Uninsured People With Cancer, Securing Care Can Be Like Spinning A Roulette Wheel.” It’s by Charlotte Huff. It’s a really, really great look at what happens when you get cancer and in particular live in a state that didn’t expand Medicaid. Charlotte just does a really great job looking at the experiences that this woman has when she develops skin cancer and is recommended all these treatments that she can’t afford. She lives in South Carolina. She’s not eligible for Medicaid because they didn’t expand eligibility. And what it really gets into is the idea that there are a couple of cancers where you will get treatment, but for most of them, you will not get coverage; you have to pay thousands, sometimes tens of thousands out-of-pocket. And it’s a really well done, devastating look at what health care costs mean in our system and how much access really is for so much of health care based on where you happen to live.

Rovner: Yeah, it really is — really wonderful story. Well, my story, it’s also from The Washington Post, and it’s called “To Comply With a New Sesame Allergy Law, Some Businesses Add — Sesame,” by Karen Weese. So back in 2004, I covered the deliberation and passage of the Food Allergen Labeling and Consumer Protection Act, which for the first time required companies to put on the label in plain English if their products contained any of the eight major food allergens, which are milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, and soybeans. It was an enormous relief, particularly to parents of young children with allergies and to anyone with a food allergy that could be fatal. So, the law also required food companies to label whether there was a chance that the product could have been cross-contaminated with one of those allergens. That’s why you sometimes see on a label, you know, quote, “This product was produced in a facility that also makes milk products or that uses nuts” or some such thing. The law has worked pretty well, say those who fought for it, and in 2021 Congress added sesame to the list of allergens that had to be labeled. Except that this time something weird happened. Many food companies, rather than carefully cleaning and monitoring their plants to ensure there would be no cross-contamination with sesame, instead are basically evading the law’s intent by adding small amounts of sesame flour to their products and then putting on the label that “This product contains sesame.” It’s dangerous for a lot of reasons but mainly because for people with sesame allergies who have eaten certain products without problems for years, they may not realize that, to them at least, a poison has been added to their favorite bread or roll or whatever kind of product. So this is something that I imagine Congress is going to want to go back and take a look at. All right. Before we go this week, you may have noticed that the introduction to the podcast has been tweaked. That’s because we have a new name. Kaiser Health News has been retired as of this week. We are KFF Health News to reflect that we are an editorially independent program of KFF, also a new name, and that neither of us is connected in any way to that big HMO [health maintenance organization] Kaiser Permanente. I hope you will bear with us as we all get used to the change. 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. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me, at least for the moment. I am still @jrovner. Victoria?

Knight: @victoriaregisk.

Rovner: Sarah?

Karlin-Smith: @SarahKarlin.

Rovner: Shefali.

Luthra: @shefalil.

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

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

Several states have begun the herculean task of redetermining how many of an estimated 85 million Americans currently receiving health coverage through the Medicaid program are still eligible. To receive federal covid-19 relief funds, states were required to keep enrollees covered during the pandemic. As many as 15 million people could be struck from the program’s rolls — many of whom are still eligible, or are eligible for other programs and need to be steered to them.

Meanwhile, the trustees of the Medicare program report that its Hospital Insurance Trust Fund should remain solvent until 2031, three years longer than it projected last year. That allows lawmakers to continue to put off what are likely to be politically unpleasant decisions, although they will eventually have to deal with Medicare’s underlying financial woes (and those of Social Security).

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Amy Goldstein of The Washington Post, and Rachel Roubein of The Washington Post.

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Alice Miranda Ollstein
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Amy Goldstein
The Washington Post

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Rachel Roubein
The Washington Post

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Read Rachel's stories

Among the takeaways from this week’s episode:

• The Medicaid “unwinding” is likely to strip health coverage not just from millions of people who are no longer eligible for the program, but also from millions of people who still are. States are supposed to take their time reevaluating eligibility, but some are rushing to disenroll people.
• Another complication in an already complicated task is that many Medicaid workers hired during the pandemic have never actually redetermined Medicaid eligibility for anyone, because states had been required to keep people who qualified on the program.
• Grimly, some of the extra years of solvency gained in the Medicare Hospital Insurance Trust Fund are a result of pandemic deaths in the 65-and-older population.
• The Department of Health and Human Services has issued payment rules for Medicare Advantage Plans for 2024. The agency ended up conceding at least somewhat to private plans that for years have been receiving more than they should have from the U.S. Treasury. The new rules will work to shrink those overpayments going forward, but not try to recoup those from years past.
• The situation with “first-dollar coverage” of preventive services by commercial health plans is becoming a bit clearer following last week’s decision in Texas that part of the Affordable Care Act’s preventive services mandate is unconstitutional. Judge Reed O’Connor (who in 2018 ruled the entire health law unconstitutional) issued a nationwide stay on coverage requirements from the U.S. Preventive Services Task Force, saying it is a volunteer organization not subject to the oversight of the Health and Human Services secretary. The federal government is already appealing that ruling.
• But O’Connor’s decision is not quite as sweeping as first thought. He banned required coverage only of the task force’s recommendations made after March 23, 2010 — the day the ACA was signed into law. Earlier recommendations stand. O’Connor also did not strike preventive services recommended by the Health Resources and Services Administration and the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, since those agencies are overseen by an official appointed by the president and confirmed by the Senate.
• In abortion news, the liberal candidate for a Supreme Court seat in Wisconsin, Janet Protasiewicz, defeated her conservative opponent to switch the majority on the court from 4-3 conservative to 4-3 liberal. That ideological shift is likely to preserve abortion rights in the state, and possibly stem the ability of the GOP legislature to continue to draw maps that favor Republicans.
• Meanwhile, states in the South are continuing to pull back on abortion access. The Florida legislature is moving rapidly on a bill that would ban the procedure after six weeks of pregnancy, while in North Carolina, a single legislator’s switch from Democrat to Republican has given the latter a supermajority in the legislature large enough to override any veto of the Democratic governor, Roy Cooper.

Also this week, Rovner interviews Daniel Chang, who reported and wrote the latest KHN-NPR “Bill of the Month” feature about a child who had a medical bill sent to collections before he started to learn to read. 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: New York Magazine’s “The Shared Anti-Trans and Anti-Abortion Playbook,” by Irin Carmon.

Alice Miranda Ollstein: The Los Angeles Times’ “Horrifying Stories of Women Chased Down by the LAPD Abortion Squad Before Roe vs. Wade,” by Brittny Mejia.

Rachel Roubein: KHN’s “‘Hard to Get Sober Young’: Inside One of the Country’s Few Recovery High Schools,” by Stephanie Daniel of KUNC.

Amy Goldstein: The Washington Post’s “After Decades Under a Virus’s Shadow, He Now Lives Free of HIV,” by Mark Johnson.

Also mentioned in this week’s podcast:

• Stat’s “Denied by AI: How Medicare Advantage Plans Use Algorithms to Cut Off Care for Seniors in Need,” by Casey Ross and Bob Herman.
• ProPublica’s “How Cigna Saves Millions by Having Its Doctors Reject Claims Without Reading Them,” by Patrick Rucker, Maya Miller, and David Armstrong.
• The Atlantic’s “There’s No Such Thing as a Casual Interaction With Your Doctor Anymore,” by Zoya Qureshi.
• Politico’s “Democrats Want to Restore Roe. They’re Divided on Whether to Go Even Further,” by Alice Miranda Ollstein and Megan Messerly.

Click to Open the Transcript

Transcript: The ‘Unwinding’ of Medicaid

KHN’s ‘What the Health?’Episode Title: The ‘Unwinding’ of MedicaidEpisode Number: 292Published: April 6, 2023

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, April 6, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Roubein of The Washington Post.

Rachel Roubein: Good morning.

Rovner: And we welcome back to the podcast, after a bit of a break, Amy Goldstein, also of The Washington Post.

Amy Goldstein: Good to be back.

Rovner: Later in this episode, we will have the latest KHN-NPR “Bill of the Month” interview, with my colleague Daniel Chang. This month’s patient had a medical bill sent to collections before he was old enough to read. Impressive. But first, this week’s news. We’re going to start this week with Medicaid. During the pandemic, as most health policy nerds know, the federal government required states to keep anyone who qualified for the Medicaid program on the rolls, even if they became ineligible. But as of April 1, last week, states were free to start, quote, “unwinding” that Medicaid coverage. Now, states are facing the daunting task of determining who’s still eligible for the program and who can be removed and how those who are losing that Medicaid coverage can be steered to other programs, which they might be eligible. This is, to quote then-Vice President Biden when the ACA got passed, a BFD. So, what are some of the potential problems here? We’re talking about a lot of people, right, Amy? You wrote about this.

Goldstein: We are talking about a lot of people. It’s unclear how many people are going to lose Medicaid. But if you go by the Biden administration’s estimates, they’re thinking perhaps 15 million people out of 85 million people who are on Medicaid. So that’s a lot of low-income people who could end up without insurance or scrambling to see if they can find other insurance if they know to do that. And obviously, Medicaid is a joint federal-state enterprise, and states are the ones that carry it out. States set their eligibility rules to a large extent, and states have each had to write and submit to the federal government a plan for how they’re going to go about this unwinding. And the issue is that, with so many different plans, there are some things that CMS, Centers for Medicare & Medicaid Services, want states to do — for instance, to try as much as possible to check whether people are eligible by trying to match up with other records, say, from food stamps or wage records that the states might have.

Rovner: So basically, don’t count on them responding to a letter that says you need to reestablish your eligibility for this program.

Goldstein: Exactly. But how assertively states are going to 1) do that, and secondly, how hard they’re going to try to reach people in how many different ways — time will tell.

Rovner: Yeah, I’ve noticed. I mean, some states are doing things like sending out special colored envelopes. It’s Easter week; we’ve got robin’s-egg blue envelopes. I think that was Massachusetts. Somebody’s sending out pink envelopes and magenta envelopes. But, you know, Alice, you covered when they were doing the Medicaid work requirements, and Arkansas discovered that the problem wasn’t so much that people weren’t working; it’s that people literally had trouble navigating the reporting system. And that’s kind of what we’re looking at writ large here, right?

Ollstein: Yeah. And the people who are most likely to be flagged for removal, they could be very low income. They could have unstable housing, move around a lot, stay with family. They might not receive mail at the address that was on file a few years ago. They might not have reliable phone or internet access to be reachable in those ways. So, as Amy said, it really makes a difference how much and what kind of an effort states make to let people know this is even happening. Because as we saw with work requirements and even just, like, the regular pre-pandemic periodic Medicaid eligibility checks, people fall through the cracks all of the time for reasons that are not their fault at all. And so, with this all happening at once, with so many more people than normal, the risk of that just grows.

Goldstein: And if I could just throw in one more complicating factor: If you think about what’s happened to workforces over the pandemic, a lot of the Medicaid agencies in the states have lost workers, and there are shortages in a lot of places. And people who’ve been hired in the last couple years have never had to do renewals or, as the lexicon goes, redeterminations before. So what’s going on inside the places where these decisions are going to have to get made for all these people is a bit of a problem in many, many states.

Roubein: I think how I’ve been sort of thinking about it in my mind is there’s 1) that issue of ensuring people who are still eligible don’t lose coverage. And then there’s the other issue of people who aren’t eligible for Medicaid anymore, but having states and navigators and groups help them find coverage elsewhere, whether that’s on the exchange, or some people might actually be now eligible for employer insurance. And some of that breakdown from that 15 million from that Department of Health and Human Services report — they had projected 6.8 million will lose Medicaid coverage despite being still eligible and that roughly 8.2 million people expected to leave the program because they’re no longer eligible for the program.

Rovner: And before somebody writes me and asks … [unintelligible] … I know states weren’t absolutely required to keep these people on the rolls, but they were required to keep these people on the rolls if they wanted the extra pandemic money. So every state did it. So every state basically has this task ahead of them to try to figure out how it works, and we shall keep tabs on this. I want to turn to Medicare. Last week, we got the annual report of Medicare’s trustees, which found, a little unexpectedly I think, that the program’s Hospital Insurance Trust Fund should continue to be able to pay all of its bills until 2031. That’s three years longer than it was projected to last year. Kind of grimly, apparently some of the improvement is due to many older people on Medicare dying during the covid pandemic. But this also does take some pressure off of lawmakers to fix what ails Medicare financially, right? They tend to only act when it’s within this four- or five-year window.

Ollstein: I would say yes and no. I haven’t seen a huge shift in the talk on Capitol Hill in response to this report. It’s only pushing back the deadline a few years. And it’s true, Congress only acts when there’s an imminent crisis and sometimes not even then. But I think the people really saying, “Hey, we need to do something,” are not going to stop saying that because of this.

Rovner: I’m going to put that on a T-shirt: Congress only acts when there’s an imminent crisis and sometimes not even then.

Roubein: Oh, yeah. I mean, I think that’s frustrated budget experts because Congress isn’t particularly doing anything in terms of financial solvency. And I mean, it’s really political, as we’ve seen — Biden during his State of the Union and how he got Republicans to talk about basically his ad-libbed Medicare conversation. But it’s kind of this tradition.

Rovner: “We’re not going to touch Medicare or Social Security.”

Roubein: Yeah. Off the table, this kind of tradition of “Mediscare.” No one wants to kind of be putting their foot out there with a proposal that would change Medicare.

Goldstein: This looming insolvency of Medicare is not at all a new problem. And ducking the problem is not a new phenomenon. Julie, you may remember, along with me, in the late 1990s, as a result of the big Balanced Budget Act of 1997 — this goes back a way — Congress created a bipartisan commission on the future of Medicare, and it was led by members of Congress. It was a big deal, it got a lot of attention, and it tried for many, many, many months to map out the future of Medicaid. And in the final analysis, it just dissolved in disagreements.

Rovner: Yeah, Medicare, not Medicaid,

Goldstein: Yes, Medicare.

Rovner: They did recommend a drug benefit that did eventually come to pass, but —

Goldstein: That’s right. But that was not the solvency solution.

Rovner: No, it was not. And I will say, my bookcase here at home is littered with reports of these various commissions that Congress punted to. It’s like, well, you guys solve it. And of course, no one ever has. We are still at this. But obviously this year, Rachel — you kind of hinted at this — some of this is going to come to a head because it’s part of the debt ceiling debate, that Congress is going to have to do something about the debt ceiling, lest the U.S. actually default on its debt. Republicans want to have spending cuts as part of this. They had said they wanted to do something about Medicare as part of this. Is there any update on that debate? We still seem to be in the “after you, Alphonse” portion of this, with both Biden saying he’s ready to talk to the Republicans and Republicans saying they’re ready to talk to Biden and nobody really talking to each other yet.

Roubein: Yeah, I mean, I think both sides are pretty dug in here at the moment. McCarthy a month or two ago had said no cuts to Medicare and Social Security. And Kevin McCarthy, I think it was the end of last month, had demanded a meeting with Biden. And then, you know, kind of the Biden team came back and said, “OK, well, we put out a budget. So, you know, Republicans need to produce their budget document.” And, you know, that’s kind of the political argument that we’ve been hearing for a little while here.

Rovner: Well, to paraphrase Alice, this crisis is about to get imminent, but not quite.

Goldstein: Before we leave Medicare, let me just make a couple more points. One is that this affects hospital care. So it’s not all parts of Medicare. And when the insolvency date comes — as you say, now projected to be 2031 — it’s not as if the program is going to be unable to pay any of its bills. This year its trustees said that it’s going to be able to pay 89% of the hospital benefits to which Medicare are entitled. The other point is, I mean, there’s a long-standing reason why politicians have been reluctant to fix something despite the many, many, many years of cries of, “We better fix it soon because it’s going to be harder to fix the longer we wait.” And that is that, older Americans — I mean, to state the obvious — are a very active voting bloc and they do not like the prospect of federal benefits being eroded. So there is politics behind why both parties have been reticent.

Rovner: Yes, there’s four ways to make Medicare solvent. You can pay providers less, which is what they usually end up doing, and they fight back. You can make the benefits less, either by having people wait longer to get on them or having to pay more for them. Or you can require the taxpayers to pay more money. So everything is kind of unpleasant here. And I think that’s why Congress would just as soon not do this. But while we still have Medicare teed up, we talked at some length a few weeks ago about Medicare Advantage plans, the private alternative to the government fee-for-service Medicare, and how those plans are technically being overpaid, which has prompted quite the TV advertising campaign from the plans, which I suspect very few people understand. There’s just all these sort of old people saying, “They’re going to cut our Medicare.” So the Department of Health and Human Services finally issued its Medicare Advantage payment rule for next year, and it appears to split the difference, stopping plans from continuing to overstate how sick their patients are, which is what’s responsible for a lot of the overpayments. But it limits the ability of the government to look back to recoup some of those overpayments that have been made. Is that basically a one-sentence explanation of what they’ve done here?

Roubein: The industry waged a pretty fierce battle here, but they phased in their plan. So essentially the Centers for Medicare & Medicaid Services had proposed switching to a more updated coding system, which included eliminating approximately 2,000 codes. And insurers claimed that this could lead to substantial pay cuts. The administration fiercely disputed that. But they did, as you say, kind of split the difference, in terms of saying, “OK, well, we’re going to phase in these changes over three years,” which CMS officials and other experts have said is something that they kind of tend to do when there is controversial policy.

Rovner: Right. When they don’t want to irritate anybody too much, although I did notice that there’s also some rules about deceptive advertising for Medicare Advantage plans. So maybe it’ll make me stop screaming at the TV when these ads come on. Moving along, last week we were able to bring you the breaking news about the preventive care ruling out of Texas from federal District Judge Reed O’Connor. What else have we learned since those first breaking hours? I know the decision doesn’t cover preventive care recommended by groups that report directly to someone in the federal government who is appointed by the president and confirmed by the Senate — at least it doesn’t at the moment. But it only limits preventive care that’s recommended by the U.S. Preventive Services Task Force. But it could still be expanded at the appeals level, right?

Goldstein: That’s right. This affects a lot of people: everybody with private health insurance, which is estimated by federal health officials to be about 150 million people. It’s not killing all free preventive services. It’s ending the mandate that they’re provided at no cost to consumers for those preventive services that the U.S. Preventive Services Task Force has either defined or updated since the Affordable Care Act was passed in 2010. So that leaves intact a few important categories of things: 1) earlier preventive services, like mammograms, which were required to be covered for free before, are still intact. It also leaves intact services that are required by two different parts of HHS. Within HRSA [Health Resources and Services Administration], they have jurisdiction over women’s health services, so that’s why things like contraception are not touched by — at the moment, as you say — by this court ruling. And similarly, an advisory body to the CDC, which has jurisdiction over vaccinations, whether it’s childhood vaccinations, covid vaccinations — so those aren’t touched. But what’s happened in the past week is, predictably, the day after Judge O’Connor — who, as I’m sure you discussed last week, was the same judge who a few years ago held that the entire ACA was unconstitutional and was ultimately overruled by the Supreme Court — anyhow, O’Connor last week said this applies nationwide, not just to places where the plaintiffs are. And the next day, the Biden administration, the Justice Department, very quickly filed a notice of appeal. It was one paragraph. It wasn’t laying out the appeal, but it was getting on the record that the administration is going to appeal to the 5th Circuit Court of Appeals, which is a conservative circuit based in New Orleans that hasn’t been entirely friendly to the ACA in the past. What the administration did not yet do is say that it wants to stay the judge’s ruling, but it’s very likely that that’s going to be requested as well.

Rovner: Even if the judge’s ruling doesn’t get stayed, it’s likely to have very little immediate impact, right? Because insurance contracts are already kind of set for the year. If insurers wanted to stop covering this — and they’re probably not going to stop covering it — but if they wanted to make it — institute copays or say this is part of your deductible — they’re likely not to do that until the next plan year, right? Alice, I see you nodding.

Ollstein: Yeah, but that isn’t uniform. So the folks I talked to said that, while most plans are baked in for the year and what we really should be looking for is when the new 2024 things start coming out in the summer into the fall, that’s what we should be watching in terms of, you know, what could change there. But that isn’t uniform. It’s possible that some plans could change earlier. There are all different kinds of possibilities, but I was kind of surprised to see the Biden administration not rush to file an appeal right away. They filed a notice of appeal, but they haven’t actually filed the appeal yet or asked for the stay, but I think that is stemming from this not being seen as an imminent threat to people’s health coverage. The piece of it I’ve really been interested in is the impact on HIV and STDs, because, like Amy said, a lot of the basic cancer screenings and other things will continue to be protected in some form because they were recommended prior to 2010. But a lot of the STD and HIV stuff is a lot more recent, so it’s a lot more vulnerable to being rolled back, and plans and employers — for a lot of these things — covering preventive services for free with no out-of-pocket costs is good; it’s really cheap to cover and it prevents a lot of expensive care down the road. But that’s sort of less true with some of these things. PrEP, the HIV prevention drug, is really expensive. A lot of the lab costs for STD testing are still expensive. And so you could see folks’ plans and employers wanting to save money by shifting some of those costs to patients. And public health experts are worried about that.

Rovner: I think another quirk of this that we didn’t realize right away is what the decision says is that it only affects USPSTF rulings that were made after the date that the Affordable Care Act was signed, March 23, 2010. But what that ends up doing is leaving in effect prior recommendations that are not necessarily up to date. So you could end up rolling back to things that medical experts no longer think is the appropriate interval or type of preventive service being required. And then, of course, you have the insurers who are going to be required to put out their bids for next year in the coming months. Now, this is not the first time insurers have had to stab in the dark at what they think the rules are going to be and how much they’re going to want to charge for that. So we’re having yet another round of insurers kind of having to throw their hands out and throw darts against the wall, right?

Goldstein: Yes. And this — Alice mentioned employers are a big constituency in this. There is some survey evidence, I mean not terribly systematic survey evidence, but a little bit of survey evidence that was done last fall with this case pending, that showed that most insurers, a high, high proportion of insurers, wanted to keep these benefits. So that may influence, as you’re saying, Julie, what the bids come in looking like while this is all still kind of murky.

Rovner: Yeah, we know it’s popular and we know in most cases it’s relatively cheap. So one would assume that this decision might not have too much impact, although as I sort of alluded to, and I haven’t heard whether this is happening yet, the plaintiffs could also appeal because they didn’t get everything they wanted. They also wanted to have the women’s health stuff out of HRSA and the immunization stuff out of CDC stayed as, you know — or the requirements gotten rid of, and the judge did not do that. So one presumes they could also appeal and we would see what happens at the 5th Circuit Court of Appeals. But I think everybody assumes at this point that it’s going to end up at the Supreme Court, yes? I see nods all around. Oh, boy. I can’t wait. All right. Well, let’s turn to abortion. The big abortion news this week comes from Wisconsin in a race for state Supreme Court, of all things, which was supposed to be nonpartisan or technically was nonpartisan. Still, the strong showing by the judge who was associated with the liberal side of the ledger could have some major impact, right? This was expected to be a very close race, and it really wasn’t.

Ollstein: No, it wasn’t close at all. The progressive candidate really took it away, and the campaign really heavily focused on abortion. This is because the state’s ban, which has been in place, you know, since long before Roe was enacted, is likely to come before the court. But the implications go way beyond that. This could change how the legislature makeup is in the future because of challenges to the gerrymandered state maps. That could, you know, open the door to Medicaid expansion and all kinds of other things, you know, related to abortion, related to all kinds of things. Because right now, you know, you have a Democratic governor who is on his second term who can’t really do very much because of the state legislature. So this could have tons and tons of repercussions going forward in Wisconsin.

Rovner: And we should point out, because I meant to say, this election flipped the state Supreme Court from 4-3 conservative to 4-3 liberal.

Roubein: It was really interesting because you saw the liberal candidate, Janet Protasiewicz, really leaning into abortion rights. And, you know, obviously she’s a judge, but in multiple ads from her campaign it said, you know, women should have the freedom to make their own decisions on abortion. That was a quote from the ads. And now, you know, kind of, she was … [unintelligible] … from the other side, like, can she be impartial when she rules? And, you know, she said like, “No, I have not promised any of these major groups, Emily’s List, etc., that are backing me, how I will rule.” But, you know, we did see the judge, as she called it, her personal beliefs and be really open about that.

Rovner: And her opponent was also pretty open about it, too. He was a very conservative guy who was pretty much promising to go down the line with what the conservatives wanted. Alice, you were about to say something.

Ollstein: Yeah, well, it’s been fascinating now that we’re a day out from the election results. There is sort of a freakout going on on the right about it and about what it means for abortion specifically. And you’re seeing a lot of very prominent people on the right publicly saying, “We have a message on abortion that voters don’t like and we need to change it right now.” People are saying that the right needs to moderate and stop pushing for near-total bans with no exceptions, which is going on in a lot of states right now. That debate was already happening on the right, but I think this just pours fuel on it. I think with the Florida governor about to be confronted with whether or not to sign a six-week ban, this really is going to squeeze a lot of people.

Rovner: Yes, I feel very smug about my extra credit story from last week, which was the Rebecca Traister long read in New York Magazine about how Democrats have underestimated how winning an issue abortion may be. And I saw her sort of also smugly tweeting late Tuesday night. It’s like, “See, I’m telling you this.” While the Upper Midwest may be getting more supportive of abortion rights, also this week Michigan Governor Gretchen Whitmer formally signed the repeal of the state’s nearly hundred-year-old pre-Roe ban. But in the South, the trend is going the other way, as you mentioned, Alice. Florida’s legislature is moving quickly on a six-week abortion ban, while in North Carolina a Democratic state legislator who ran on abortion rights is switching parties, giving the Republicans there a supermajority that will let them override the Democratic governor’s vetoes. Are we looking at, fairly imminent, abortion being unavailable throughout the South?

Roubein: I think Florida, North Carolina, Nebraska is also considering a similar limit — were all states that in the two months after Roe v. Wade was overturned — were states that saw an increase in abortions. I think North Carolina is particularly interesting because in early February all the Democrats had signed on to a bill to codify Roe v. Wade. But I was reporting at the time with my colleague Caroline Kitchener on this, and she talked to one of the Democrats there, who said, well — after he signed on to it — like, “Well, that doesn’t preclude me from voting for abortion restrictions.” He had said this is, quote, “This is still the first quarter.” So I think even before we saw the state Democrat switch to Republican, you know, what happened in North Carolina where there is a Democratic governor was an open question even beforehand.

Rovner: Yeah, this reminds me of Virginia trying to expand Medicaid, and there’s constantly this sort of one member, another member. I mean, it literally didn’t happen until the last vote allowed it to happen, I think.

Ollstein: Yeah. I mean, this also really puts a spotlight on the tactic of doing a ballot referendum on abortion, because —

Rovner: That was my next question, Alice.

Ollstein: Ta-da.

Rovner: Tell us about your story about that.

Ollstein: The relation to this is, yes, you have a lot of Republican lawmakers and some Democrats, or some former Democrats, as we’ve seen, who are moving very aggressively to continue to pass abortion restrictions, whether it’s total bans or something short of that. But the referendums often show that that doesn’t necessarily reflect all of the Republican electorate, which is not always aligned with their representatives on this issue. And based on the results of the six referendums last year in which the pro-abortion-rights side won all six out of six, folks are hoping to get that going in more states this year, and it’s already underway — not as much in the South, and not every state can do a referendum legally. It varies state to state what the rules are, but where it’s possible, people are trying to do it. My story this week reported on an internal fight on the left about how to go about it. So most of the referendums that are moving forward in these red and purple states right now, trying to get on the ballot in the next few years, say that basically they would only restore the protections of Roe v. Wade, so only protect abortion up to the point of fetal viability. And you have a lot of folks — you know, medical groups, activists — saying, Why are we doing that? Why are we sort of pre-compromising? We keep seeing over and over at the ballot box this is a winning issue; why aren’t we being bold? Like the right is going for total bans. Why aren’t we going for total legalization? But the folks who want the viability limit in there are saying, Look, we want to put something forward that we know is going to pass. We’ve done research and focus groups and polling. You know, this is the way we think is smartest to go. Plus, you know, the vast majority of abortions take place prior to viability anyways. And right now we have no abortion at all. So isn’t legalizing most better than nothing? And so it’s a really interesting debate.

Rovner: It’s literally the mirror image of the debate that’s going on on the right, which has been happening over the years. It’s just that it’s all kind of, you know — now that we’re in this sort of odd place — it’s all magnified. So, you know, the right is trying to decide between do we restrict abortion a little or do we just allow, you know, the end of Roe v. Wade and states to make up their mind? Or do we go for a national ban? Where the left is saying, do we just want to bring things back to where they were when we had Roe, or do we want to go further and allow and basically have public funding and sort of other things to assure what they call reproductive justice? So obviously, this fight is going to continue on both sides.

Goldstein: Let me just say that this tension between the electorate and lawmakers in fairly conservative states is a real echo of what has happened over the years with Medicaid expansion, when there have been several states in which legislators were really dug in that they weren’t going to expand Medicaid under the ACA, and public ballot initiative and it expanded. So it’s sort of turning to the exact same tactic.

Rovner: That’s right. And again, in a lot of these Republican states, the voters were very happy to expand Medicaid. So that, yes, we’ve seen this particular book before. Well, before we go, there were a couple of stories that got kicked over from last week when we had our breaking news. But I really wanted to mention about artificial intelligence in health care or at least in health insurance. One story from ProPublica details how the health insurance giant Cigna is using an algorithm to reject thousands of claims for care that’s kind of between cheap and very expensive, and then letting medical director physicians basically batch-approve those rejections on the theory, likely correct, that even if most of the care is medically appropriate, most people won’t bother to appeal a bill of just a couple of hundred dollars and will just pay it. The other story, from Stat News, is kind of strikingly similar. It’s about a Medicare Advantage plan that’s using AI to pinpoint the exact moment it can stop paying for some care, particularly expensive care, in a hospital or nursing home. Now, it would appear that the Medicare Advantage case is more egregious because it seeks to actually cut off care, where Cigna is just denying payment after the fact. But it seemed to make it pretty clear that while a) it might improve care and save money, sometimes it’s just saving money for people other than the patients, right? That’s what it certainly looks like in these cases.

Ollstein: I mean, as we’ve seen with other uses of algorithms, algorithms reflect the values of the people creating the algorithms. And you say, “Oh, it’s a robot, it’s completely impartial.” Why are there racial discrimination implications then? But we do keep seeing this and it’s like, it was created by humans, it’s going to have human failings and require oversight and accountability mechanisms.

Rovner: Yeah. And finally, one more story from the “be careful what you wish for.” There’s a story in The Atlantic this month about the downside of telehealth that at least some of us saw coming. Now that doctors can charge for and be reimbursed for virtual care by video, more and more doctors are starting to charge for other forms of communication that used to be free, like telephone calls and emails. Now, lawyers have long charged for phone calls advising clients. I always kind of wondered why doctors didn’t. I guess I have my answer now. Is this another case of anything — that any technology that’s good is probably also going to have its downsides?

Goldstein: Well, it’s also a reflection that fewer and fewer doctors work on their own. They’re working for health systems that have the bottom line in mind, which is not to say they only have the bottom line in mind, but they’re less autonomous in terms of their pricing policies.

Rovner: And yeah, are being asked to see more patients, so it takes more time to actually, you know — one of the interesting things in this in the story was that a phone call may only be five minutes for you, but it’s probably 20 minutes for your doctor who has to go make a notation in your chart and maybe call in a prescription. And it’s more than just the quick phone call for the doctor. I think this is something that used to be a courtesy and now it’s just a charge. All right, well, that is this week’s news. Now we will play my “Bill of the Month” interview with Daniel Chang and then we’ll come back with our extra credit. We are pleased to welcome to the podcast Daniel Chang, who reported and wrote the latest KHN-NPR “Bill of the Month.” Daniel, welcome to “What the Health?”

Daniel Chang: Hi, Julie. I’m glad to be here.

Rovner: So this month’s patient wasn’t even old enough for kindergarten when he got a medical bill sent to collection for care he didn’t even receive. Who is this kid? Why did he need medical care? And this is very impressive, I’ve got to say.

Chang: So, at the time — this happened last Memorial Day weekend — Keeling McLin was his name, and he was 4 years old. And according to his mom, Sara McLin, who’s a dentist in central Florida, she had just finished cooking something on the stove and Keeling had gotten up to get something. And on his way down he put his hand on the hot stove. That was pretty painful, from what she described. And so she took him to the emergency room for care.

Rovner: First she took him to urgent care, right?

Chang: Well, it was a stand-alone emergency room, so it’s one of those hybrid ones, I guess you might call it. No inpatient, of course.

Rovner: And therein is about to be our problem. So Mom did everything right here, right? She made sure that she went to a facility in her network, and then they sent her off to another hospital. But the problem is, where is the first visit, right?

Chang: Correct. The first visit was a problem. It was part of the HCA system. And they didn’t have, I guess, the resources there to treat Keeling’s burn. So they referred him to a HCA hospital with a burn center, which was about a 90-minute drive away from the stand-alone ER.

Rovner: And they managed to deal with the burn, right? The kid’s OK.

Chang: They did. He’s OK. It turned out to be not as bad as suspected. And Sara McLin told me that they drained his blisters, wrapped his hand, and sent her home with instructions on how to care for it. And she didn’t think about it again.

Rovner: Until she got the bill.

Chang: Exactly.

Rovner: This gets pretty Kafkaesque, doesn’t it? What were the bills here?

Chang: So, the first bill that she received was from the physician provider group; Envision Healthcare employed the physician in the stand-alone emergency room. That bill was for about $72. She called her insurer, which was UnitedHealthcare, and they told her that — essentially not to worry about it. And the bill itself is labeled as a surprise out-of-network bill, although when I reached out to Envision Healthcare, they said that it was not, it was part of her cost sharing. In any case, that bill didn’t cause her any problems. Shortly after that, she got a bill from the stand-alone emergency room, and this bill was considerably higher, although her share was about $129. But the reason that she was a little confused about this is because she said that the physician at the stand-alone emergency room told her, “You know what, this won’t even count as a visit because we can’t do anything for him.” So she left with that thought. And later on she said she wished she had gotten that in writing, but that was the problem bill.

Rovner: Yes. So what eventually happened?

Chang: So what eventually happened is that the bill was in Keeling’s name and it did not include his mom or his dad on there. It was just simply to Keeling. And for reasons that HCA didn’t explain, and we can’t explain, Envision got his insurance information correct, but HCA had him as an uninsured person responsible for his own bills. And it’s odd because his date of birth is on that bill. And you would think that somewhere along the line someone would catch that. But they didn’t. And so what happened is that Sara fell into this sort of twilight zone where she couldn’t speak to anyone about the bill because it wasn’t in her name. And so, according to her conversations with folks at HCA and later at Medicredit, they couldn’t talk to her because her name wasn’t on the bill. So this was the one thing that she was trying to get resolved. And she tried for months and got nowhere, which is when she reached out to us.

Rovner: And as you point out, that Medicredit is the collections agency, right? This 5-year-old’s bill got sent to collections.

Chang: That’s correct. That just kind of compounded the frustration because Sara had worked for a couple of months to get HCA to add her name onto the bill. And she had even written them a letter, she says, and they told her they were going to do it and she was waiting for the bill. But then the next letter she got was from the collection agency, for the same amount and with the same problem. Her name wasn’t on the bill. So when she called the collection agency to try to dispute the bill, they told her, “Sorry, we can’t talk to you. You’re not the authorized representative on this bill.”

Rovner: It feels like the biggest problem here is not so much that mistakes happen. They do. Obviously, they’ve happened a lot in our “Bill of the Month” series. But they are so very hard to fix — I mean, even when you say, “Look, this is a 5-year-old.”

Chang: I agree. It sounded so frustrating. And I think, ultimately, of course, that’s why she reached out to us. But she tried repeatedly and not only did she tell me this, but the bills that she provided to us had a lot of her handwritten notes in the margins and the dates that she had spoken to individuals. And it just — it’s really hard. None of the experts that we spoke with could understand why HCA couldn’t just simply fix this before they sent it to collections. And HCA acknowledged the error, and they apologized to her. And they ultimately canceled the debt. But the system clearly doesn’t seem to work in favor of patients when you have these sort of odd complications that really they didn’t have anything to do with what she owed or what they said she owed; it was all a matter of identification.

Rovner: So is there anything she could have done differently? I’m not saying, you know — she obviously couldn’t prevent the mistake from being made. But was there some better way for her to try to navigate this?

Chang: You know, neither the insurer or the providers gave us an explanation of what she could have done differently or what individuals who find themselves in a similar position could do. And so I think she did everything that she reasonably could, short of perhaps hiring an attorney? I’m not sure; maybe that would have worked, but you shouldn’t have to go to that length and that cost just to get your name on your minor child’s bill so that you can take care of it and speak to the people who say you owe them the money. It’s just — it’s crazy.

Rovner: And she’s a dentist, so she’s a health care professional. She obviously had some, you know, knowledge of the system and how it works. And even she had trouble —

Chang: That’s correct.

Rovner: — getting it done. So I guess basically the lesson is, watch your bills closely and be ready to take action.

Chang: And potentially, when I think about this situation, ensuring perhaps that the stand-alone ER had all of the information, but I can also see where she was told that, “Look, this doesn’t even count as a visit. We couldn’t treat him here. You’ve got to take him to the burn center. We won’t count this as a visit.” I think she left comfortable in that knowledge, only to realize later that, oops, it wasn’t that way. Yeah.

Rovner: Get it all in writing.

Chang: Yes.

Rovner: Daniel Chang, thank you so much.

Chang: You’re very welcome. Thanks for having me on.

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

Ollstein: Sure. So I picked a really fascinating history piece from the LA Times by Brittny Mejia, and it’s about what law enforcement’s role was pre-Roe v. Wade in cracking down on illegal abortions. All abortions were illegal. And it just really vividly describes how cops would conduct raids on doctors who were operating clandestinely and performing abortions, you know, the tactics they would use. It was just really fascinating. And so I think it’s worth resurfacing this history, thinking, OK, so abortion is illegal again; what does enforcement look like? What could enforcement look like? And this is a very disturbing picture of what it used to look like.

Rovner: Amy, you have a story that’s kind of related to Alice’s story, also looking at history, but updated.

Goldstein: That’s right. I chose a story by my colleague at the Post, Marc Johnson, with the headline, “After Decades Under a Virus’s Shadow, He Now Lives Free of HIV.” And it’s an interview with one of only five people in the world who’ve had stem cell transplants that have cured them of cancer but also gotten rid of any evidence of HIV in their bodies. And it’s not a hugely long story, but it’s just a beautiful trajectory reminding us of what the early bad world of AIDS was, with this individual’s friends dying all around him in San Francisco, to the decades when he was on a lot of AIDS drugs, and suddenly being unexpectedly liberated from all that. It’s a good read.

Rovner: Yeah, it is. Rachel.

Roubein: My extra credit is titled “‘Hard to Get Sober Young’: Inside One of the Country’s Few Recovery High Schools,” by Stephanie Daniel of KUNC. And basically it takes the reader inside a Denver recovery high school, which mixes high school education with treatment for drug and alcohol addiction. And so this high school in Colorado — it’s one of 43 nationwide, and she kind of details the history of recovery high schools, which, the first one opened up in Silver Spring, Maryland, in 1979. And she also kind of goes through what I thought was interesting, which was kind of, the challenges of recovery high schools, most being publicly funded charter or alternative schools, and they have a higher ratio of mental health and recovery personnel, so there’s really not a ton of them nationwide.

Rovner: I had never heard of them until I saw this story. It was really interesting. Well, for the second week in a row, my story is from New York Magazine. It’s by Irin Carmon, and it’s called “The Shared Anti-Trans and Anti-Abortion Playbook.” And she points out that not only are there many of the same people fighting abortion who are also fighting trans health care, but there’s also a similarly long-term strategy, as Irin wrote. They’re focusing on youth first, because they understand that it’s much harder to convince the public to restrict the lives of adults. As someone who’s spent years covering the fight over whether or not teen girls should be able to access sex education, birth control, or abortion, it does feel familiar. OK, that is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review. That helps other people find us too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me. I’m @jrovner. Rachel?

Roubein: @rachel_roubein.

Rovner: Alice?

Ollstein: @AliceOllstein.

Rovner: Amy?

Goldstein: @goldsteinamy.

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

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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. 

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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.

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

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

Opponents of the Affordable Care Act may have stopped trying to overturn the entire law in court, but they have not stopped challenging pieces of it — and they have found an ally in Fort Worth, Texas: U.S. District Judge Reed O’Connor. In 2018, O’Connor held that the entire ACA was unconstitutional — a ruling eventually overturned by the Supreme Court. Now the judge has found that part of the law’s requirement for insurers to cover preventive care without copays violates a federal religious freedom law.

In a boost for the health law, though, North Carolina has become the 40th state to expand the Medicaid program to lower-income people who were previously ineligible. Even though the federal government will pay 90% of the cost of expansion, a broad swath of states — mostly in the South — have resisted widening eligibility for the program.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Sandhya Raman of CQ Roll Call.

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Rachel Cohrs
Stat News

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Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories

Sandhya Raman
CQ Roll Call

@SandhyaWrites

Read Sandhya's stories

Among the takeaways from this week’s episode:

• Thursday’s decision out of Texas affects health plans nationwide and is expected to disrupt the health insurance market, which for years has provided preventive care without cost sharing under the ACA. Even if the decision survives a likely appeal, insurers could continue offering the popular, generally not-so-costly benefits, but they would no longer be required to do so.
• The decision, which found that the U.S. Preventive Services Task Force cannot mandate coverage requirements, hinges on religious freedom objections to plans covering PrEP, the HIV medication, alongside other preventive care.
• Speaking of the ACA, this week North Carolina became the latest state to expand Medicaid coverage under the health law, which will render an estimated 600,000 residents newly eligible for the program. The development comes amid reports about hospitals struggling to cover uncompensated care, particularly in the 10 states that have resisted expanding Medicaid.
• Pushback against Medicaid expansion has contributed over the years to a yawning coverage divide between politically “blue” and “red” states, with liberal-leaning states pushing to cover more services and people, while conservative-leaning states home in on policies that limit coverage, like work requirements.
• On the abortion front, state attorneys general are challenging the FDA’s authority on the abortion pill — not only in Texas, but also in Washington state, where Democratic state officials are fighting the FDA’s existing restrictions on prescribing and dispensing the drug. The Biden administration has adopted a similar argument as it has in the Texas case challenging the agency’s original approval of the abortion pill: Let the FDA do its job and impose restrictions it deems appropriate, the administration says.
• The FDA is poised to make a long-awaited decision on an over-the-counter birth control pill, an option already available in other countries. One key unknown, though, is whether the agency would impose age restrictions on access to it.
• And as of this week, 160 Defense Department promotions have stalled over one Republican senator’s objections to a Pentagon policy regarding federal payments to service members traveling to obtain abortions.

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

Julie Rovner: New York Magazine/The Cut’s “Abortion Wins Elections: The Fight to Make Reproductive Rights the Centerpiece of the Democratic Party’s 2024 Agenda,” by Rebecca Traister.

Alice Miranda Ollstein: Stat’s “How the Drug Industry Uses Fear of Fentanyl to Extract More Profit From Naloxone,” by Lev Facher.

Rachel Cohrs: The Washington Post’s “These Women Survived Combat. Then They Had to Fight for Health Care,” by Hope Hodge Seck.

Sandhya Raman: Capital B’s “What the Covid-19 Pandemic and Mpox Outbreak Taught Us About Reducing Health Disparities,” by Margo Snipe and Kenya Hunter.

Also mentioned in this week’s podcast:

• The New York Times’ “‘We’re Going Away’: A State’s Choice to Forgo Medicaid Funds Is Killing Hospitals,” by Sharon LaFraniere.
• KHN’s “Fresh Produce Is an Increasingly Popular Prescription for Chronically Ill Patients,” by Carly Graf.
• California Healthline’s “Prescription for Housing? California Wants Medicaid to Cover 6 Months of Rent,” by Angela Hart.

click to open the transcript

Transcript: A Judicial Body Blow to the ACA

KHN’s ‘What the Health?’Episode Title: A Judicial Body Blow to the ACAEpisode Number: 291Published: March 30, 2023

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, March 30, at 11 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Sandhya Raman of CQ Roll Call.

Sandhya Raman: Good morning.

Rovner: And happy birthday to you.

Raman: Thank you.

Rovner: And Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: We’ve got breaking news, so we will get right to it. In Texas, we’ve got a major decision from a federal judge with national implications. No, not the abortion pill case — that is still out there. This time, Judge Reed O’Connor has ruled that the Affordable Care Act can’t require coverage of preventive services recommended by the [U.S.] Preventive Services Task Force because the PSTF, as an independent advisory board, can’t legally mandate anything. This case was specifically — although it was about a lot of things — but it was mostly about employers who didn’t want to cover preexposure prophylaxis [PrEP] for people at high risk of HIV because it violated their religious beliefs. And if the name Reed O’Connor sounds familiar, that’s because he’s the same judge who ruled in 2018 that the entire Affordable Care Act was unconstitutional, a finding that wasn’t formally overturned until it got to the Supreme Court. Alice, you’ve been following this case. What happens now?

Ollstein: I’m expecting the Biden administration to appeal at lightning speed, although that appeal will go to the 5th Circuit, which is very right-leaning. It’s ruled to chip away at the Affordable Care Act in the past. So who really knows what will happen there? But yeah, this is really huge. This is saying that this board that has decided what services insurance companies have to cover for free, with no cost sharing, going all the way back to 2010 is not constitutional, and thus what they say can’t be enforced. And so this throws the insurance market into a bit of chaos.

Rovner: Yeah, although one would think that it wouldn’t affect this year’s policies — I mean, for people who are going to be worried that all of a sudden, you know, oh my God, I scheduled my mammogram and now my insurer might not pay for it. It’s not going to be that immediate, right?

Ollstein: We’re not expecting that. I mean, we’re expecting the Biden administration to ask for courts to stay the impact of the ruling until further arguments and appeals can be made. But we really don’t know at this point. And I will say, you know, I’ve seen some misinformation out there about how the ruling deals with contraception. They do not block the contraception mandate. That is related to this case, but the court did not accept that part of the challengers’ claims.

Rovner: Yeah, we should say there are a bunch of different claims and the judge only accepted a couple of them. It could have been even broader. But, you know, unlike the previous Affordable Care Act cases, this one doesn’t threaten the entire law, but it does threaten one of the law’s most popular pieces, those requirements that plans cover preventive care that’s been shown to be cost-effective. This could be an uncomfortable case for the Supreme Court, assuming it gets there, couldn’t it?

Cohrs: It could be an uncomfortable case for the Supreme Court, but it’s also uncomfortable for insurers, too, who’ve promised this. People have come to expect it. And if it is cost-effective, I mean, certainly there may be plans that, you know, make choices to restrict coverage or impose some cost sharing. If this stands, if this is applied nationwide — again, very big ifs at this point — but if these really are cost-effective, then it’s kind of an open question what insurers will choose to do, because obviously they want people to enroll in their plans as well.

Rovner: Yeah, I was going to say, I could see insurers sort of deciding as a group that we’re going to keep providing this stuff, as you say, Rachel, because they want, you know, they want to attract customers, because for the most part it’s not that expensive. I mean, obviously, you know, things like colonoscopies can run into the thousands of dollars, but a lot of these things are, if not de minimis, then just not very expensive. And, as I mentioned, they’re very popular. So it’s possible that, even though they may strike down the mandate, there won’t be as much of an impact from this as some people are saying. But, as Alice points out, we don’t really know anything at this point.

Ollstein: And I think some of the concern is the kind of risk-pool sorting we used to see, you know. So the challengers said that their right to purchase insurance that doesn’t cover certain things was being infringed upon. And so if insurers start to create separate plans, some of which cover all kinds of preventive care, including sexual health care, and separate ones that don’t, and people who don’t think they need a lot of stuff, you know, sort themselves into some plans and not others, you can see that reflected in premiums that could lead to some of the major pre-ACA problems we used to see.

Rovner: If the idea that somebody doesn’t like something and therefore can’t buy something without it, you can see that leading to all kinds of problems down the line about people saying, well, “I don’t like that drugstores sell condoms, so therefore I should be able to go to a drugstore that doesn’t sell condoms,” although that’s not a mandate. But you can see that this could stretch very far with people’s religious beliefs. And indeed, the basis of this claim is that this violated the Religious Freedom Restoration Act. That’s one of the things that Judge O’Connor found, and that could be taken to quite the extreme, I imagine.

Ollstein: Right. I mean, they weren’t required to actually purchase PrEP. They weren’t required to use it. They weren’t required to prescribe it. Just the insurance company was required to cover it along with everything else they cover. And the folks said even purchasing insurance that had that as one of the things it could conceivably cover violated their religious rights.

Rovner: Yes. And this goes back to the contraceptive cases, where the religious organization said that, you know, by having birth control in their plans, it made them complicit in something that they thought was a sin. And that’s exactly what’s being stressed here, even among the individual plaintiffs: that having to buy insurance that has these benefits, even if they don’t use them, makes them complicit in, basically, sex outside of marriage. I mean, that’s what’s in the decision. It’s quite a reach. I’ll be interested to see, as this goes up, what people think of it. So, before we got Judge O’Connor’s opinion, what I thought would be the biggest news of the week comes from North Carolina, which on Monday became the 40th state to expand Medicaid under the Affordable Care Act, to cover people with incomes up to 138% of poverty. That’s about $20,000 in 2023. Well, it’s almost there. The newly eligible 600,000 people won’t be able to sign up until the legislature approves a budget, which is likely later this spring. North Carolina expanding the program leaves only a swath of states across the South, including Florida, Georgia, and Texas, and a couple in the Great Plains as still holding out on a 90% federal match. Is anyone else on the horizon or is this going to be it for a while?

Raman: I think one thing to note about how this is happening is that North Carolina was able to do this finally through the legislature after like a yearslong process. And it has been increasingly rare for this to happen through the legislature. The last time was Virginia, in 2018, but every other state that has done it in recent years has all been through ballot initiative and going that route. And the 10 holdouts that we have, you know, we have Republican-controlled legislatures who’ve been pretty against doing this. So I think if any of those states were to be able to do that at this point that haven’t been tempted by, you know, any of the incentives … [unintelligible] … get a higher match rate or anything like that, it would have to be through the ballot, which is already a difficult process, can take years. There have been various roadblocks to push back and even some of the states in the past that have been able to get it through ballot initiative — some of the legislatures afterwards have tried to like push back on it — when we saw with Utah a few years ago, where even if the voters had voted that they wanted to expand, they wanted to kind of pull it back.

Rovner: We thought in Maine, where the governor blocked it until basically he was out of office.

Raman: Yeah.

Ollstein: And in Missouri, where they just refused to fund it.

Raman: Yeah, so I think that’ll be definitely something to watch with how the budget goes in the next few months. But I guess, at least with North Carolina, this was something that was bipartisan. It was spearheaded in the legislature by Republicans, so I think they might not have the same issues there than Missouri, but it’s a tough haul to get the remaining 10 at this point after this many years.

Rovner: Yeah, I feel like North Carolina is much more like Virginia, which is that, finally, after a lot of wearing down, the Republican legislature and the Democratic governor were able to come to some kind of agreement. That’s what happened in Virginia. And that seems to be what’s happened here in North Carolina. Meanwhile, in those 10 states, hospitals which end up providing free care to people who can’t pay aren’t doing so well. In Florida, the state’s hospital association has been all but begging the state government to expand Medicaid pretty much since it was available to them, which is now going on 13 years. According to the American Hospital Association, 74% of rural hospital closures around the country took place in states that have not expanded Medicaid or where expansion had been in place for less than a year. And the New York Times has a story this week about the toll that that lack of insurance is taking — I’m sorry — and the New York Times has a story this week about the toll that lack of insurance for the working poor is taking there, not just on the state’s hospitals, but on the health of the state’s population. Lawmakers in these states are very happy to take federal money for all manner of things. What is it about this Medicaid expansion that’s making them say, “No, no, no”?

Raman: This was something that came up this week in the House. Appropriations’ Labor, HHS, Education Subcommittee had a hearing this week specifically on rural communities and some of the issues they face. And Medicaid expansion obviously did come up with some of the witnesses and some of the lawmakers as something that would be helpful given the number of hospital closures they’ve seen, and there might only be one health care facility for miles or in a county, and just how it would be helping them to kind of relieve paying for the uncompensated care that they’re already dealing with, you know, highlighted a number of the issues there. So it’s something that comes up, but I think one of the pushbacks that we saw was, you know, again, that it is a) tied to the Affordable Care Act, which has been such a partisan back-and-forth since its inception, and then b) just the messaging has always been about the cost. I mean, even if the general consensus is that it does save money over time for taking care of that care, something that came up was why states get more of a reimbursement for expansion than they do for traditional Medicaid. That was brought up a couple times, things like that. And so I think it’s hard to get some of those folks on board just because of how partisan it has become.

Rovner: Yeah, I remember I watched the hearing in Wyoming on this last year. They didn’t want to do it, it seemed, more for ideology. I mean, a lot of states that are doing this, you know, you can levy a tax on hospitals and nursing homes, who are happy to pay the tax because they’re now getting paid for these patients who couldn’t pay. And the state’s really not out-of-pocket, as it were, at all. But and yet, as we point out, these last 10 states, including some of the really big ones, have yet to actually succumb to this. Well, while we are talking about Medicaid, there have been a couple of interesting stories from my KHN colleagues in the past few weeks about so-called social determinants of health, those not strictly medical interventions that have a big impact on how sick or healthy people are. In California, Democratic Gov. Gavin Newsom wants to use Medicaid to pay for six months of rent or temporary housing for homeless people. And in Montana, health professionals can now prescribe vouchers for fruit and vegetables for patients with little access to fresh food. Is this the wave of the future, or will those who want to shrink rather than expand the welfare state and government in general roll programs like these back?

Cohrs: I think there certainly is a trend, a lot of momentum behind the idea of food as medicine and, you know, moving away and exploring some of these non-medication treatments or some of these underlying reasons why people do have health issues. I think certainly support for the Medicaid program is going to be a hot-button issue in D.C. over the next few months, but there is a lot that states can do on their own as well. And I know states have, you know, programs to kind of cover people that fall between the cracks of traditional insurance programs. California has a robust program for that, the local levels as well. So I think there may be ways to get around that, even if we do see some more restrictions. And again, the administration is Democratic at this point, so I think they may be friendlier to some of these innovations than prior ones, and that could change at any time. But this certainly isn’t something that’s going to go away.

Rovner: I wonder if we’re going to end up with blue states having all of these more robust pro — I mean, we already have blue states with more robust programs, but blue states having these more inclusive programs and red states not. Alice, you’re nodding.

Ollstein: Absolutely. And that’s been the trend for a while, but it could even accelerate now, I think, and you’re seeing that on both sides, with blue states looking to cover more and more things; also looking to cover more and more people, including undocumented people. That’s another trend in Medicaid. At the same time, you have red states that have long explored how to cover fewer and fewer, you know, trying to change the income eligibility threshold for expanded Medicaid, trying to do work requirements, trying to do, like, other restrictions. And so I think the patchwork and the divide is only going to continue.

Rovner: Well, moving on to abortion this week, we are still waiting, as I said, for that other decision out of Texas that could impact the future of the abortion pill mifepristone. But Alice, there’s another case at the other end of the country that could have something to say about the Texas case. What’s going on in Washington state?

Ollstein: This one has really flown under the radar. So this is an interesting situation where the same — a lot of the same Democratic attorneys general who were siding with the Biden administration in the Texas case are challenging the Biden administration in a different case in Washington state, basically saying that the remaining federal restrictions on abortion pills — mainly that providers have to get certified in order to prescribe the drugs or dispense them — saying that that should be tossed out, that it’s not supported by medicine and science. And so it’s interesting because you have the Biden administration fighting back against an effort to make the pills more accessible, which is not what a lot of people expect. It goes sort of against their rhetoric in recent months; they’ve talked about wanting to make the pills more accessible and they’re opposing an effort that would do that. But it is somewhat consistent with their position in the Texas case, which is, they’re saying, “Look, this is the FDA’s job. Let the FDA do its job. The FDA has a process, came up with these rules, got rid of some, kept others, and you outside folks don’t have the right to challenge and overturn it.”

Rovner: So what happens if the judges in both of these cases find for the plaintiffs, which would be kind of, but not completely, conflicting?

Ollstein: Yeah, so the Washington state case could just apply to the dozen states that are part of the challenge. And so you could have, again, more of a patchwork in which the abortion pills become even more accessible in those blue states and even less accessible in other states. You could also have these competing rulings that ultimately trigger Supreme Court review.

Rovner: Yeah, it’s not exactly a circuit split because it wouldn’t be opposite decisions on the same case; they’re different cases here. But as you point out, it’s really a case challenging the authority of the FDA to do what the FDA does. So it’s going to be really interesting to watch how this all plays out. While the future of mifepristone remains in doubt, the FDA is going to consider making at least one birth control pill over the counter. We know that morning-after pills, which are high doses of regular birth control pills, are already available without a prescription. So why hasn’t there been an over-the-counter birth control pill until now?

Ollstein: Everything concerning birth control, emergency contraception, abortion, it just — these fights drag on for years and years and years. So finally, we seem to be on the cusp of having a decision on this. It’s expected, from most people I’ve talked to, that they will approve this over-the-counter birth control. There’s a lot of data from around the world. A lot of other countries already have this. And one key unknown is whether the FDA will maintain an age restriction on it. A lot of progressive advocates do not want an age restriction because they think that this is important to help teens prevent unwanted pregnancies. And I think that’s going to be a big piece of the fight that I’m watching.

Rovner: And oh, my goodness, it was that age restriction that held up the over-the-counter morning-after pill for years. That was like a 13-year process to get that over the counter. It went on and on and on, and I covered it. All right. Well, there is abortion-related action on Capitol Hill too this week. We’ve got a potential abortion standoff brewing in the Senate over reproductive health policy at the Department of Defense. Who wants to talk about that one?

Raman: This one has been, I think, really interesting, since we’re all health reporters. And it’s been really something that I think my defense colleagues have been following so closely. But we have Senator Tuberville, who’s been holding up military nominations because the Pentagon has a policy that allows, you know, service members leave for reproductive care and it covers travel to seek an abortion. And so —

Rovner: Although it still doesn’t pay for the abortion.

Raman: It does not pay for the abortions. It’s for the travel. And so I know that my colleagues have looked at this and how this point, like, both sides have been getting a little frustrated, you know, with even some senators saying, “Hey, I agree that I don’t like this policy, but you need to find another way,” because as of earlier this week 160 promotions have been stalled. And so it’s just been kind of ramping up and holding up a lot of folks for kind of an unusual method.

Rovner: Yeah, and the defense secretary saying, I mean, this threatens national security because these are promotions — are important promotions. Flag officers, these are not, you know, just sort of — they’re routine, but they’re, you know, but if they don’t happen, if they get stalled, it’s a problem. In all of my years of seeing anti-abortion senators hold up things, this is not one I have seen before. It’s at least — it’s sort of new and imaginative, and I guess we will see how that plays out. Back in the states, though, it seems that the efforts to restrict reproductive rights are getting very extreme, very fast. Yes, the Oklahoma Supreme Court ruled earlier this month that a pregnant woman does have a right to an abortion when continuing the pregnancy threatens her life. But four of the nine justices there didn’t even want to go that far, suggesting that the legislature has the right to basically require saving the fetus even at the cost of the pregnant person’s life. In Texas, a lawsuit in which the ex-husband is suing the friend of his ex-wife for the wrongful death of his child for helping her get abortion medication is setting the stage for the so-called personhood debate: the idea that a new person with full legal right is created upon fertilization of an egg by sperm. Over the past few decades, several states have rejected personhood ballot measures as a bridge too far. But it feels like all bets are off now. I mean, it’s sort of like a race to see who can be the most extreme state.

Ollstein: I think the trends are revealing some interesting things. I mean, one, anti-abortion folks are well aware that people are still getting abortions, mainly in one of two ways: either traveling out of state or ordering pills online and taking them at home, both of which are very difficult to enforce and stop. And so there’s just a lot of, like, throwing spaghetti against the wall and seeing what sticks, in terms of, can we actually criminalize either of those things? If so, how is it enforced, or does it even need to be enforced? Or is just the fear and the chilling effect enough? I mean, we definitely see that. We definitely see medical providers holding off on doing even perfectly legal things because of fear and the chilling effect. And so there’s just a lot of experimentation at the state level right now.

Rovner: Yeah, I forgot to mention Idaho, where the legislature introduced a bill that would make it a crime — that creates abortion trafficking as a crime — for someone to take a minor, it’s not really across state lines, because the state can’t do that, so it’s like taking the minor to the border in an effort to cross state lines to get an abortion. There was, for many years in the late 1990s and early 2000s, something called the Child Custody Protection Act in Congress, because they needed that for the interstate part of it, that would make it a crime to take a minor across state lines in violation of the home state’s parental involvement laws. It passed both the House and the Senate at various times. It never became law. It’s been introduced recently, but nobody’s tried to take it up recently. I wouldn’t be surprised to see that come back up, too. But it really does seem that every day there’s another bill in another state legislature that says — after all the claims of the anti-abortion movement for decades, that we don’t want to punish the women, we only want to punish the providers — that’s gone out the window, right?

Raman: I guess I would add that, you know, we’re seeing a lot of this activity now. But something that I keep in mind is that a) it’s gotten a lot harder to know what’s going to, you know, using the spaghetti metaphor that Alice did, like what will stick. So there’s just a lot more flurry of action. And then I feel like I see increasingly, you know, people, since they don’t know that, just like fixating a lot on various things, just because you don’t know. I think, you know, even a few years ago, there were a lot of things that would have one sponsor or two sponsors and have no chance of going anywhere, as most bills introduced anywhere do. But now, a) a lot of these things are moving very, very quickly in the legislature, and b) since we don’t know, it’s hard to know where to kind of focus, even to some of the experts that I’ve talked to, where it’s just, “We’re not sure.” So just be aware of all of these things in various places because of kind of that uncertainty.

Rovner: Yeah, I know I’m generally loath to talk about bills that got introduced either in Congress or in state legislatures, because I think it unnecessarily creates expectations that for the most part don’t happen. But as both of you say, some of these things are happening so fast that, if you mention them one week, they’re law by the next week. So we will see as this continues to move quickly. All right. That’s the news for this week. Now it is time for our extra credit segment. That’s when we each recommend a story we read this week we think you should read too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Rachel, why don’t you go first this week?

Cohrs: All right. So my story is from the Washington Post, and the headline is “These Women Survived Combat. Then They Had to Fight for Health Care,” by Hope Hodge Seck. And I thought it was just a really great feature on this very niche issue. And I think veterans’ kind of health care overall just doesn’t get as much coverage as it should, and —

Rovner: Particularly women’s veteran’s health care.

Cohrs: Exactly. Yes. And so these women were essentially going into combat situations to help relations with women in very conservative cultures, and they were exposed to the grenade blasts and a lot of these combat situations. But then their health care coverage upon returning wasn’t covered. And there is kind of a new bill with some momentum behind it that is trying to plug that loophole. So, yeah, I thought it was a very great feature on an issue that’s undercovered.

Rovner: Yeah, this was something I knew nothing about until I read this story. Alice?

Ollstein: I chose a piece by Rachel’s colleague at Stat, Lev Facher, called “How the Drug Industry Uses Fear of Fentanyl to Extract More Profit From Naloxone.” And this is really timely, with the approval this week of over-the-counter opioid-overdose-reverse medication. And basically it’s about how these drug companies are coming up with new forms of the drug, really huge doses, new delivery forms, injectables, and nasal sprays, and stuff that are not really justified by science and are sort of just an opportunity for more profit because the basic form of the drug that works extremely well and is very affordable, they are basically hyping the fear of fentanyl to try to push these stronger products they’re coming up with. And the fear is that municipal governments that have limited resources are going to spend their money on those not really justified new forms and get fewer medication for everyone than just using the basic stuff that we know works.

Rovner: Indeed. Sandhya?

Raman: My extra credit is from Margo Snipe and Kenya Hunter at Capital B, and it’s called “What the Covid-19 Pandemic and Mpox Outbreak Taught Us About Reducing Health Disparities.” And I thought this was an interesting look that they did, highlighting how, you know, there’s been a lot more talk about the various health inequities among, you know, racial and ethnic and sexual minority communities after these two pandemics have started. And they look at how some of the targeted efforts have narrowed some of the gaps in things like vaccines, but just how some of these lessons can be used to address other health disparities, you know, things like community outreach and expanding types of screenings and how many languages public health information is translated into and things like that. So, it’s a good read.

Rovner: Well, my extra credit this week is a long read, a very long read, by Rebecca Traister in New York Magazine, called “Abortion Wins Elections: The Fight to Make Reproductive Rights the Centerpiece of the Democratic Party’s 2024 Agenda.” And while I’m not sure I’m buying everything that she’s selling here, this is an incredibly thorough and interesting look at the past, present, and possibly future of the abortion rights movement at the national, state, and local levels. If you are truly interested in this subject, it’s well worth the half hour or so of your time that it takes to get through the entire thing. It’s a really, really good piece. OK, that is our show for this week. As always, if you enjoyed the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth@kff.org. Or you can tweet me still. I’m @jrovner. Alice?

Ollstein: @AliceOllstein.

Rovner: Rachel?

Cohrs: @rachelcohrs.

Rovner: Sandhya?

Raman: @SandhyaWrites.

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

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

Medicare Advantage, the private-sector alternative to original Medicare, now enrolls nearly half of all Medicare beneficiaries. But it remains controversial because — while most of its subscribers like the extra benefits many plans provide — the program frequently costs the federal government more than if those seniors remained in the fully public program. That controversy is becoming political, as the Biden administration tries to rein in some of those payments without being accused of “cutting” Medicare.

Meanwhile, President Joe Biden has signed a bill to declassify U.S. intelligence about the possible origin of covid-19 in China. And new evidence has emerged potentially linking the virus to raccoon dogs at an animal market in Wuhan, where the virus reportedly first took hold.

This week’s panelists are Julie Rovner of KHN, Margot Sanger-Katz of The New York Times, Jessie Hellmann of CQ Roll Call, and Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

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Jessie Hellmann
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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Margot Sanger-Katz
The New York Times

@sangerkatz

Read Margot's stories

Among the takeaways from this week’s episode:

• The Biden administration recently changed the formula used to calculate how much the federal government pays private Medicare Advantage plans to care for patients with serious conditions, amid allegations that many of the health plans overcharge or even defraud the government. Major insurers are making no secret about how lucrative the program can be: Humana recently said it would leave the commercial insurance market and focus on government-funded programs, like its booming Medicare Advantage plans.
• The formula change is intended to rein in excess spending on Medicare — a huge, costly program at risk of insolvency — yet it has triggered a lobbying blitz, including a vigorous letter-writing campaign in support of the popular Medicare Advantage program. On Capitol Hill, though, party leaders have not stepped up to defend private insurers as aggressively as they have in the past. But the 2024 campaign season could hear the parties trading accusations over whether Biden cut Medicare or, conversely, protected it.
• The latest maternal mortality rates released by the Centers for Disease Control and Prevention show the problem continued to worsen during the pandemic. Many states have extended Medicaid coverage for a full year after women give birth, in an effort to improve care during that higher-risk period. But other problems limit access to postpartum care. During the pandemic, some women did not get prenatal care. And after the fall of Roe v. Wade, some states are having trouble securing providers — including one rural Idaho hospital, which announced it will stop delivering babies.
• The federal government will soon declassify intelligence related to the origins of the covid pandemic. In the United States, the fight over what started the pandemic has largely morphed into an issue of political identity, with Republicans favoring the notion that a Chinese lab leak started the global health crisis that killed millions, while Democrats are more likely to believe it was animal transmission tied to a wet market.
• And in drug price news, Sanofi has become the third major insulin maker (of three) to announce it will reduce the price on some of its insulin products ahead of a U.S. government policy change next year that could have cost the company.

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

Julie Rovner: Vice News’ “Inside the Private Group Where Parents Give Ivermectin to Kids With Autism,” by David Gilbert

Jessie Hellmann: The Washington Post’s “Senior Care Is Crushingly Expensive. Boomers Aren’t Ready,” by Christopher Rowland

Joanne Kenen: The New Yorker’s “Will the Ozempic Era Change How We Think About Being Fat and Being Thin?” by Jia Tolentino

Margot Sanger-Katz: Slate’s “You Know What? I’m Not Doing This Anymore,” by Sophie Novack

Also mentioned on this week’s podcast:

• Coverage by KHN’s Fred Schulte on Medicare Advantage: https://khn.org/news/author/fred-schulte/
• The New York Times’ “Biden Plan to Cut Billions in Medicare Fraud Ignites Lobbying Frenzy,” by Reed Abelson and Margot Sanger-Katz
• The CDC’s “Maternal Mortality Rates in the United States, 2021,” by Donna L. Hoyert

Click to open the transcript

Transcript: The Policy, and Politics, of Medicare Advantage

KHN’s ‘What the Health?’Episode Title: The Policy, and Politics, of Medicare AdvantageEpisode Number: 290Published: March 23, 2023

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, March 23, 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. Today we are joined via video conference by Margot Sanger-Katz of The New York Times.

Margot Sanger-Katz: Good morning, everybody.

Rovner: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hello.

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

Joanne Kenen: Hi, everybody.

Rovner: So a happy 13th birthday to the Affordable Care Act, which President Obama signed just a couple of hundred feet from where I am sitting now. But there’s lots of other health news, so we’re going to dive right in. I want to start this week with Medicare Advantage, the private Medicare alternative that now enrolls more than half of all Medicare beneficiaries. If you watch cable TV or pretty much any TV at all, you have likely seen the dueling ads. They’re part of a multimillion-dollar lobbying campaign, like this ad from the Better Medicare Alliance, made up of mostly Medicare Advantage insurers.

Excerpt from ad set in a bowling alley:Bowler 1: They might cut Medicare Advantage.Bowler 2: C’mon!Bowler 1: They’re talking about it in Washington.Bowler 2: Cut Medicare Advantage? Higher premiums? With inflation already so high?Bowler 3: That’s nuts!

Rovner: Or this one from the consumer advocacy group Protect Our Care.

Excerpt from ad: Insurance companies are lying to America’s seniors about cuts to Medicare Advantage benefits. Experts agree what they are saying is just plain false. Health insurance companies are simply trying to stop cuts to their sky-high profits, CEO salaries, and bonuses.

Rovner: I swear, Margot, I pulled the clip from that first ad before you also used it in your excellent story published Wednesday. So — and I know this is a hugely complicated issue that we’re going to try to take apart at least a little bit — but, who’s right here? Those who are saying that Medicare Advantage is about to be cut or those who were saying not really.

Sanger-Katz: I think actually they are both a little bit right. The Biden administration has made a very technical change to the formula that pays these private plans extra money when they sign up patients who have serious medical diagnoses. And this is, of course, a response to an earlier problem. It used to be Medicare Advantage plans — those are the private plans that are an alternative to the government Medicare program. It used to be that they just got a flat fee for everyone that they signed up. That was about what it costs on average to take care of someone in Medicare. And what happened is that the plans then had a huge incentive to only sign up healthy people. And so that’s what they tried to do. And they marketed to healthy people by doing things like including gym benefits in the health insurance plan or this famous, and perhaps apocryphal, example of, you know, locating the enrollment office on the third story of a building with no elevators so only people who could get up the stairs would be able to sign up for the plan. And so, there was this policy response where it said, well, you know, sicker people are more expensive to take care of, and we want these plans to not just be cherry-picking all of the healthiest people. And so they created this system that basically pays extra to the plans. If you have congestive heart failure, if you have cancer, or if you have diabetes, then your health plan gets, like, a little bonus. But what we have seen over the course of the life of this program is that this has created enormous incentives for the plans to diagnose their customers with as many diseases as possible, regardless of the strength of the evidence that they have. And there is a whole industry of data-mining operations that go through people’s medical records, of home health agencies that go into people’s homes just to diagnose them with more illnesses. And there are just absolutely widespread — from, like, every possible authoritative source that you can think of — allegations of overcharging of the federal government through this program and also of fraud. Not every insurance plan in the country in this program has been accused of fraud, but quite a lot of them have, including most of the largest players. And they are facing lawsuits in federal court for basically scamming Medicare by saying that their people are too sick.

Rovner: So I want to go back to the beginning or, really, the middle. Medicare has offered beneficiaries the option of enrolling in a private managed-care plan instead of what’s known as traditional Medicare, where patients can go to just about any doctor or hospital, pretty much from the inception of the program and pretty broadly since the Reagan administration in the early 1980s. They were originally called Medicare risk plans. Health plans almost exclusively, HMOs, said they could provide the same care more efficiently by, quote, “managing care,” and could still make a profit even if the government paid them 5% less than the average patient in traditional Medicare in that area. So it was a good deal all around. The plans were making money. The government was saving money. Yeah, that was a very long time ago. Since then, Congress has significantly raised what it pays the plans with the stipulation that they use the excess funds to either reduce premiums or add benefits, mostly dental, vision, and hearing care. Still, however, a lot of insurers are, to use a technical term, raking it in. In fact, Humana last month announced that it was going to pull out of the commercial insurance market in order to concentrate on its much more lucrative Medicare Advantage business. So, how are these companies both providing more benefits and making big profits? I know that fraud is part of it. Jessie, where’s all this money coming from?

Hellmann: Like Margot said … I think a lot of it has to do with the upcoding that they do. They’re just able to find all of these diagnoses from their enrollees, either through chart reviews … some have done home health visits where they send in people to interview patients and ask about their health history without really providing any care. So that’s another way. And it’s just become, like, a really lucrative business practice for them. But like Margot said, they’ve just been facing more and more scrutiny and lawsuits over the way that they do this.

Rovner: They deny care, too, right? That has been a long-standing issue that people who go into these plans and then get sick sometimes have trouble getting the care that they need.

Hellmann: Medicare Advantage plans do something called prior authorization, where they require providers submit requests for something to be covered before they’ll pay for it. They do this with a lot of more costly things, like imaging or like nursing home stays, which are obviously very expensive. And so if they can deny these claims and maybe get a beneficiary to do something that is cheaper before moving onto these more costly things, then that obviously saves some money. But that’s something else that the Biden administration has been looking more closely at. They’ve proposed a few rules that would just say that Medicare Advantage plans have to cover things that are covered by Medicare. They can’t just deny care for something based on their own proprietary models of deciding whether something is medically necessary or not.

Kenen: It’s complicated because sometimes there are patients that ask for things that they actually don’t need. You know, something they have seen on TV or they heard their neighbor had or whatever, and that [there’s] actually something more conservative [that can be done]. Back surgery is the famous example. You know, sometimes physical therapy and other treatments will do better than an $80,000 back surgery. But there’s a difference between saying, “Let’s try something else first,” and times when somebody is really sick and needs an expensive drug, they may have already tried a cheaper drug in another health plan the year before. It’s very hard to untangle, you know, when “no” is appropriate because we have overtreatment in this country. But the problem here is that sometimes “no” it’s completely inappropriate, and the insurer is not paying for something that the patient expected to get when they signed up for a health plan to take care of their health.

Rovner: And we should point out this is true in all managed-care plans, not just in Medicare Advantage plans.

Kenen: Yes.

Rovner: So before we move on, I want to give a shoutout to my KHN colleague Fred Schulte, who has been on the Medicare Advantage fraud trail like a dog with a bone for more than a decade now. We will link to some of his award-winning work in our show notes. Anyway, now the Biden administration, Margot, as you said, is trying to crack down on the, if not outright fraud, at least the manipulation of payments, which will also, at the same time, save the Medicare trust fund a lot of money. In the past, though, even small changes to Medicare Advantage, because it is so popular, have been met with a lot of pushback from members of Congress in both parties. But that’s not really happening this time, is it?

Sanger-Katz: Yeah, This has, I think, been the biggest surprise and the most interesting part of reporting on this story. Historically, Medicare Advantage is about half of Medicare’s enrollment, as in these plans. If you survey seniors who have these plans, they tell you that they really love them. And notwithstanding all the stuff we just talked about, I think they are popular by most people who use them. In part, it’s because they get these extra benefits. They have lower premiums. You know, they get some goodies that they wouldn’t get with regular Medicare. And in Congress, the preponderance of members of Congress have signed letters indicating that they support, I think, what they call a stable policy-and-rate environment for the plan. So last year, 80% of members of the House of Representatives signed such a letter. That’s just, I mean, you don’t see 80% of members of the House of Representatives agreeing on practically anything — and a majority of senators as well. And I think everyone’s expectation, including me, is that when these people signed this letter and said, you know, this is important and my constituents care about it, that they would have the back of the plans and that it would be hard for regulators to be aggressive in trying to change anything about this program because there would be such a big political outcry. And, in fact, what’s happened is they have really started cracking down. They started with some of these smaller regulations. And then the one that they did, it was kind of hidden in a technical way, but it had a really big impact. They changed this whole formula and they basically said, hey, plans, like, you can no longer get these extra payments for a lot of the diseases that they were very commonly making money for diagnosing people for. And all of a sudden, you know, this support on the Hill just kind of dissolved. And that is very much in the face of this huge lobbying effort. You know, Julie, you mentioned the television commercials, but the plans also mobilize their customers to call their members of Congress to contact the White House. Something like 142,000 calls and letters have been submitted to members of Congress and the White House. The proposal itself, there’s the formal comment process — in a normal year [it] gets like a couple of hundred comments, mostly from various stakeholders in the Medicare system. This year there was an organized letter-writing campaign and 15,000 comments were submitted on this rate notice. So we just see this environment in which the public has been activated. Lobbyists are going crazy. The CEO of United[Healthcare], the largest health insurer in the country, was making the rounds on the Hill, talking to members of Congress. And yet … and yet there’s really no one in Congress who’s standing up and screaming and yelling about how terrible this is. I mean, I shouldn’t say no one. There are a few individual members of Congress, Republicans, who have been highly critical of this and who have pointed out that this move is potentially inconsistent with President [Joe] Biden’s promise to never cut Medicare, which is a key campaign message for him going into his reelection. But the leaders in Congress, the heads of committees, the really prominent members, and certainly leading Democrats have not said those kinds of things. There were letters that came out very late in the process, really in the last week or so, from Republicans in House and Senate committees of jurisdiction that you might have expected to be these angry, partisan, like, “how dare you do this to Medicare Advantage?” kind of letters. And they were not those kinds of letters. They weren’t critical, but they were very polite and they were very technical. They’re, like, could you please answer the following 10 very technical questions about this tiny little detail of the formula? So it’s clear … they are concerned and they are providing oversight. And I don’t think that they are enthusiastically embracing these changes. But at the same time, I think they are not carrying water for the insurance industry and making it very politically difficult for the Biden administration to make these changes.

Rovner: I feel like the Humana announcement actually sent quite a message that says, wow, we can make a lot more money from Medicare than we can make from the commercial market.

Kenen: Well, I think that’s true. I mean, one reason so many seniors are in Medicare Advantage, and do like it, is that they get an incredible deluge of marketing. I mean, the companies went in here, they saw that it was a business opportunity. They have marketed themselves very aggressively. People get dozens and dozens of letters saying, “Apply for this plan” or “We’ll give you this. We’ll give you that.” So the market is there. But I also think there’s a political dynamic that’s bubbled up recently that’s different. There’s been a fight every year about Medicare Advantage payments. It hasn’t been as grassroots; it hasn’t gotten as much attention. But there’s been a fight. I mean, every year the administration puts out their formula. Every year the industry fights it back. You know, there’s some kind of compromise. The industry doesn’t get hit as much as it would have. It’s part of the game, right? I mean, that’s how payment rules are made in Washington. But something has changed here that Biden quite successfully, at the State of the Union, really put the Republicans on the hot seat in terms of protecting Medicare and Social Security. And they’ve flipped it. Because the Republicans are better at language. You know, if this was a Republican rule, they would be calling it the “Protect America’s Seniors From Fraudulent Insurers” rule. You know … the Democrats just don’t do that.

Rovner: We should point out that it was the Republicans who named it Medicare Advantage — renamed the whole Medicare private plan program.

Kenen: Right. But just as … Biden’s politically great moment at the State of the Union making the Republicans promise not to touch Medicare, the Republicans have flipped it, because now they’re accusing Biden of attacking Medicare in a different way. And, you know, Medicare was this hot political issue in campaigns in the late Nineties and the early 2000s. It was replaced by a 10- to 15-year fight about what became the Affordable Care Act and repealing it and all that. And then there was this political vacuum in 2022, and in 2020, after the Republicans failed to repeal the ACA, we sort of had a — not health slogan-free, but it was on the back burner and …

Rovner: We had a reset. Well, we did have a pandemic.

Kenen: We had the pandemic, but — and that was politicized — but the traditional health care fight is reemerging. The traditional partisan health care fight is … both sides have accused the other over the year of “Mediscare.” This is the platform for that fight that I think we will continue to see going into 2024. I mean, it will evolve. I mean, this particular rule will get settled. But, you know, you’re sort of seeing who is the champion of Medicare, which Republicans, years ago, when Paul Ryan, when he was the budget chair of the House and the speaker of the House, he really wanted to significantly transform Medicare in ways that made it very different than the Medicare as it existed for them, Republicans, who are “saving Medicare.” For the Democrats, it was “Republicans are privatizing and destroying Medicare.” This is just Chapter 9,000. It’ll morph again between now and November 2024, but it’s begun.

Sanger-Katz: I think the politics of this are interesting and I think kind of unsettled. I’m very curious to see how this plays out in the campaigns. I do think that there is an available argument for Republicans to make that this change, which does take money out of the pockets of these plans and which potentially could mean that beneficiaries are going to end up with a little bit less generosity, because when those plans make less money, maybe they’re not going to give you as many extra goodies or lower your premium by as much. We don’t know that, but it’s certainly possible.

Rovner: In 1997, they cut payments for what was then Medicare Plus Choice, I think, Medicare Part C. And that’s exactly what happened. They cut all the extra benefits and people threw a fit, and they ended up having to put a lot of the money back.

Sanger-Katz: But in the Affordable Care Act, they cut a lot of the money and the benefits just kept growing. So we don’t know how the plans are going to absorb this change. But anyway, I think there is this available attack line for Republicans. Biden said he’s not going to cut Medicare. Look what he did. He’s cut Medicare. He’s taken all this money out of Medicare and it’s causing your premiums to go up. On the other hand, I do think there is this opportunity for Biden to say, “We reduced fraud; we improved the health of the Medicare trust fund.” And I think a lot of Republicans are actually committed to both of those things. I think they care about program integrity. They care about the fiscal future of the program. And so it’s all just a little bit scrambled. This almost feels more like something you might see in a Republican administration than a Democratic one.

Rovner: I was just saying, Jessie, is there any inclination on the Hill to do anything about this, or do you think they’re just going to either talk about it or not talk about it, as it were?

Hellmann: I haven’t heard anything about any potential action on the Hill. There’s just been letters sent asking questions, or some Republicans have sent letters saying, “We don’t like this.” But I don’t know that there’s enough support in both the Senate and the House to override this. And they are talking more about, like, the health of the Medicare trust fund. And some of the rules proposed by the administration could help strengthen that a little bit. It’s not going to solve all of its problems. But to go in and meddle with what the administration is doing to help the trust fund a little bit, while Congress is having more and more debates about helping the trust fund, I don’t know if that would be a good look.

Kenen: You could still have a policy compromise on, like, anti-fraud policy and still have a political fight. “We saved it!” “No, we saved it!” Oh, they … it’s way too soon to know what issues are going to dominate 2024 and what issues attract sustained attention from a public that doesn’t sustain attention to much of anything anymore. But right now, this is certainly a trial balloon for 2024. And I can see it. I can see that. I can see working out some kind of compromise on the actual technical issues and still having a political fight.

Rovner: Well, we’re going to move on because we’re clearly not gonna settle this today. But I hope people at least got a flavor for really how complicated this is, both, you know, technically and politically. I want to turn to something else that’s complicated: That’s reproductive health. And by that I mean much more than abortion and birth control. A new study from the Centers for Disease Control and Prevention finds that maternal mortality, the death rate for people when they are giving birth or in the weeks immediately after, rose by more than a third in 2021 compared to 2020. And African American women, even those with higher incomes, were 2½ times more likely to die during or just after childbirth than white women. Certainly, the pandemic had something to do with this. It disrupted medical care for just about everybody, and pregnant women who got covid had a higher risk of severe illness or death. But this is really just a continuation of a trend that’s been troubling health experts for several years now. Joanne, you’re our public health expert here. Why has this been so difficult to address?

Kenen: I mean, I think some of it is the two things that Julie said for 2020. I mean, you know, there was all this fear that the vaccines could hurt pregnant women. Actually, it was covid that hurt pregnant women and their babies. So, hopefully, we’re over the worst of that. And people weren’t going in for good prenatal care. So that was a factor. But this is a really sustained problem, and we’ve begun to take some steps. Most states are now extending Medicaid coverage postpartum for six months or a year under Medicaid. I think that when many of us, including me, when I first heard about these problems with maternal mortality, I was thinking about giving birth. I was thinking about hemorrhage and things that happen in the delivery room or right after, when, in fact, it’s really the full year after. There is high risk for everything. And that’s where a lot of the disparities in our system … the states that don’t have Medicaid, the states that  …

Rovner: Didn’t expand Medicaid.

Kenen: … didn’t extend Medicaid, you know, or there aren’t … most of them are now expanding it for women in this category, or beginning to. So that might help. I mean, the disparities throughout the health care system, this is not just an income thing. In all economic strata, the racial disparities in maternal mortality exist. And then I just found out something recently that really shocked me. I’ve done some work over the past six months writing about domestic violence as a public health problem, and I’ve moderated two panels, just like in the last 10 days on it. And most states do not count homicide, suicide, and overdose as part of the maternal mortality figures. So if you think these figures are bad, it’s way worse, because pregnancy and postpartum are all so high risk for all of those things. But since the OB-GYNs actually review these maternal mortality cases, they’re not reviewing those other three categories. So as bad as it is, it shocked me to realize what we’re looking at and being horrified by isn’t even the full picture.

Rovner: Wow. So, well, here’s where reproductive health writ large and abortion policy cross in ways that may be unexpected to lawmakers who voted for their states’ bans, but not to anybody who’s studied health policy. In Idaho, a rural hospital has announced it will no longer deliver babies, forcing women seeking labor and delivery care to travel nearly 50 miles. Why? Because the hospital, Bonner General Health in Sandpoint, says it cannot keep enough health professionals, both OB-GYNs and pediatricians, to safely run a maternity ward. Why not? Well, Idaho’s, quote, “legal and political climate,” says the hospital from its press release, quote: “The Idaho legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care.” Margot, your extra credit this week is about something similar, but in Texas. So why don’t you do it now?

Sanger-Katz: Yes, I wanted to recommend this article from Sophie Novak in Slate called “You Know What? I’m Not Doing This Anymore.” And her piece profiles a whole bunch of nurses and doctors who work in OB-GYN care in Texas who are quitting or leaving or who are considering not taking jobs that they might otherwise have taken. And I think we don’t have real data on these trends, and I’m always a little bit worried about these kinds of stories that, you know, you can always find five or six or seven or 10 doctors who are unhappy or who say that they might quit. There was a lot of those stories, like, when Obamacare passed, all these doctors are going to retire early because they don’t like the rules. I think that turned out to be more marginal than we might have expected based on that coverage. But I still think that this story is telling these stories of these providers, and I think it’s pointing to something that is a real risk and is potentially a real trend, which is if you are someone who is in the business of caring for women through pregnancy and childbirth, and you feel like you cannot do the things that you were trained to do, that there is potential criminal liability for you in providing the care that your patients need, if you’re having to watch your patients suffer through needless harm or medical risk because you can’t provide an abortion when one is medically indicated without facing that kind of legal risk. I do think that there is a real risk that these people are not going to want to practice in those states. They would rather go to a place where they have a little bit more autonomy and a little bit less concern about prosecution. And what that means is that the women left behind in these states, however you feel about abortion, may not have access to as many health care providers, and they are going to continue to have pregnancies and births and need that kind of support. And I think that is a very interesting and troubling dynamic that I think could have very large reverberations and could, of course, make the trends that Joanne was just talking about, you know, even more concerning and lead to even more disparities. Because, of course, it is a lot of the states that are banning abortion are states that have these kind of poor, minority communities who are already facing a lot of the maternal mortality. We see in the existing data it’s increasing in a kind of across-the-board way, but there are some places where it’s worse than other places. And a lot of the worst places for maternal and fetal mortality are these same places that are banning abortion and where they may be at risk of losing some of the providers that can help ameliorate the problem.

Rovner: And it’s not just losing the providers, it’s replacing the providers who do get old enough and retire or who leave, because we’re seeing medical students, fourth-year medical students, say they’re loath to apply for residencies in some of these states, partly because they’re worried about their training, but partly because, you know, if they’re women, they may need this care at some point or they may have family members who will come with them who need this care at some point. And because, for the most part, where you do your residency tends to be where you end up practicing. So, I mean, we didn’t see it so much in this year’s match, but I’m wondering whether this is going to be an issue, too. There’s some big, important academic training centers in some of these states with bans. I’m thinking, you know, Vanderbilt comes to mind immediately in Tennessee. I think this is another thing that was perhaps unexpected, although if you thought about it hard, you could have predicted it.

Kenen: I mean, pregnancy is complicated. A century ago, women commonly died in pregnancy. And we live in an era where it’s safer than it had been, but we forget it can still be risky. And wanted pregnancies, very much wanted pregnancies, can go wrong. And I’ve experienced … I mean, I have two kids, but I experienced that, and I needed emergency medical care and I was able to get it. I needed emergency medical care more than once, and I was able to get it.

Rovner: And I remember visiting you when you were on bed rest.

Kenen: Right? It was one of my few fun nights on bed rest, when Julie and Joanne Silberner brought me dinner. We had a picnic, right? In bed, right? But, you know, I never had to deal with anything except the grief of losing a pregnancy. So, you know, it was a very much wanted pregnancy, and I didn’t have to worry about anything being withheld from me. I had a lot of things go wrong a lot of times. But, you know, I was really lucky to end up with the family I have. When I read these stories, and I go back and think, what if I had to deal with infection? What if I couldn’t get that care? And we’re just not thinking this assumption, by mostly male lawmakers, that it’s not a huge medical thing. Pregnancy changes your body, everything about your body, it’s not just cosmetic. There are lots and lots of risk factors, before and after. That [has] sort of just been glossed over as, oh, it’s not a problem. And it is a problem. And one reason we’re going to see this shift in medical practice is because they understand it’s a problem. I mean, you read these stories about these doctors, and we’ve talked about them every week, and our listeners have heard them and read them, about doctors who are watching a patient with a serious infection, until she is getting close enough to die that they can treat her, but not so close to dying that they lose her. And you hear the anguish.

Rovner: That’s why I was so taken by that line in the press release from the hospital in Idaho, which is that doctors don’t want to possibly be criminalized for what is considered the standard of care. They’re being asked to basically choose between perhaps getting sued or put in jail and what they vowed to do to care for their patients. And it’s really hard. It’s not really that much of a surprise that people are going to leave or not go there. All right. Well, we will definitely come back to this, too. I want to talk about covid briefly. Jessie, the president signed the bill passed by Congress to declassify intelligence on the origin of covid. Do we have any idea when that’s going to happen? How soon? And do we get to see this, too? Or just the members of Congress?

Hellmann: The director of national intelligence is supposed to declassify this information 90 days after the law is passed. After that, I’m not entirely sure if it’s just for Congress or it’s for the public, to be honest.

Rovner: We will see. I was amused that, right after this happened — because now we have all this talk that, you know, “Oh, absolutely” or not, absolutely it was a lab leak, but “more likely it was a lab leak.” Now we have new evidence suggesting that it may, in fact, have started in the Wuhan wet market, after all, jumping from something called raccoon dogs? Now, I consider myself something of an animal expert here. I have never heard of a raccoon dog.

Sanger-Katz: They’re really cute. I was enjoying looking at all the photographs of them.

Rovner: Are we going to now go back to the “OK, maybe it really did come from the market”? I-I-I …

Kenen: What I’m about to say is an oversimplification, but if you’re a Republican, you think it’s a lab leak. And if you’re a Democrat, you think it’s a raccoon dog. And that is an oversimplification. And one of the things that drives me crazy is that the potential for lab leaks exists and lab safety is an issue that should be bipartisan. There have been lab leaks in the U.S., there have been lab leaks elsewhere in the world. And that doesn’t mean this came from a lab leak, but lab leaks are a thing. And we want to make them not a thing. But again, there are many lessons we should be able to take from the pandemic; that’s one of them. Like, OK, maybe this wasn’t a lab leak, maybe this was the Wuhan animal market, but let’s take this as a moment to think about how we can protect ourselves from a future lab leak. You know, we may never conclusively know. Even the raccoon dog thing is still a theory. I mean, there’s evidence behind that theory, but the scientific establishment has not said, OK, this is it. There’s still debate. The science world tends to think it’s zoonotic, that it’s from an animal, but it’s not over yet. And again, the politicization is preventing good public policy.

Rovner: If only someone could turn that fight into something. And as I quoted Michael Osterholm last week as saying, “It doesn’t matter which one it was, because we have to be ready for both of them in a future pandemic.”

Kenen: Exactly. And we’ll probably have both. I mean, we may not have a pandemic from a lab leak, but is it possible that somebody, somewhere, or some community will be hurt from a lab leak? Yes, it is. And we need to mitigate that. Is it possible we have another zoonotic infection? I mean, there’s two Marburg outbreaks in Africa right now. I mean, that’s from animals. And there’s two of them going on. It’s an obscure disease. It’s worse than Ebola. It doesn’t spread as fast, but we have zoonotic infections way more often than the average American realizes.

Sanger-Katz: And also just one more thing, which is we still had and have a global pandemic that has caused enormous suffering and death and fear around the world. And in some ways, I feel like this obsession with like whose fault it is is a distraction from what can we do to prevent such a thing from happening in the future and really looking at, like, what was done appropriately and inappropriately in terms of the covid response? Pinning this down seems … it seems academically interesting to me. It seems useful to know. I think, as you guys have said, you’ve got to be ready for both things anyway. But it also feels like a little bit of a sideshow sometimes when the reality is: Covid came for us. It wasn’t a near-miss where looking at the origin is the whole story. It’s also everything that came afterwards is really important, too.

Rovner: Yes, absolutely. Well, finally this week, one more update. On last week’s podcast,while we were discussing Novo Nordisk following Eli Lilly’s lead in announcing insulin price cuts, I wondered aloud how long it would be before the third company in the triumvirate that controls most of the diabetes drug market, Sanofi, would follow suit. As it turned out, the answer was a couple of hours. In a press release that came out Thursday afternoon, Sanofi said it would cut the price of its most popular insulin product by 78% and ensure that people with health insurance pay no more than $35 a month for their insulin. But I’m thinking this fight is not completely over; now that the three big companies have voluntarily said we’ll lower our prices on some of our insulins, Congress is still going to want to do something about this, right?

Hellmann: Yeah. Sen. [Chuck] Schumer said last week that he still wants Congress to address this issue. He still wants to cap the cost of insulin because, like you said, there are still insulin products that some of these companies offer that don’t fall under these announcements.

Rovner: Drug prices will continue to be a top-of-mind issue, I suspect. All right. Well, that’s as much news as we have time for this week. Now it is time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Margot, you’ve already done yours. Joanne, why don’t you go next?

Kenen: It’s a piece in The New Yorker, and I’m not sure how she pronounces her name. I think it’s Jia Tolentino. If any of you know, please correct me. But the story is called “Will the Ozempic Era Change How We Think About Being Fat and Being Thin?” I mean, this is a diabetes drug that is being used off-label for weight loss, quite widely to the point that there’s a shortage for people who have diabetes; they are having trouble getting it. It does help people lose weight and it’s become very much in demand because it does help you lose weight. And there are a few others in this class. So, the question she poses: This is a metabolic disorder, it’s not just a willpower issue, and will this help us get to that point? … It was a really good, interesting article, and I still ended up with a lot of questions about long-term safety, about do you have to take it forever and how much, and what happens if you don’t? It’s treating obesity rather than thinking about how to prevent obesity, which is a better — you know, too late for some millions of Americans, but there is generations to come. So but it was an interesting, provocative landscape piece.

Hellmann: My story is from The Washington Post. It’s called “Senior Care Is Crushingly Expensive. Boomers Aren’t Ready.” It’s just a story about how expensive long-term care could be, especially if you need really specialized care. One of the people interviewed for this story would have to pay about $72,000 a year to stay in an assisted-living facility. This person has Alzheimer’s and so they just need a little more help than someone else might. And they talk a lot about how Medicaid will cover some of this care, but only if you spend all of your life savings. And obviously, Medicare doesn’t really cover stays in assisted-living facilities either. I know we talked in email about how perennial this issue is. It’s something that was an issue 20 years ago. People are warning: We need to fix this problem.

Rovner: More than that. When I first joined CQ in 1986, it was the first big story I wrote, about what are we going to do about long-term care for the baby boomers? Here we are almost 40 years later, still talking about the same thing.

Hellmann: Yeah, I guess the answer is nothing.

Rovner: Not much has happened.

Kenen: Yeah, what’s happened is we’ve shifted more and more of it onto families.

Rovner: Yeah, that’s true.

Kenen: More complicated care for longer.

Rovner: My extra credit this week is a truly terrifying piece from Vice News called “Inside the Private Group Where Parents Give Ivermectin to Kids With Autism,” by David Gilbert. And the headline says most of it. What it doesn’t say is that when you give horse wormer to kids — and this group actually advises the use of the paste that’s given to horses — they’re going to have adverse reactions. The kids, not the horses, including headaches, stomachaches, blurry vision, and more. But the administrators of this group insist that the side effects aren’t because the children are being administered something that can kill people in the wrong dosages, but because the medication is, quote, “working.” They also say it can cure a whole host of other disorders from Down syndrome to alopecia. It is quite the story. You really do need to read it.

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

Sanger-Katz: @sangerkatz

Rovner: Jessie.

Hellmann: @jessiehellmann

Rovner: Joanne.

Kenen: @JoanneKenen

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

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

This week, the eyes of the nation are on Texas, where a federal judge who formerly worked for a conservative Christian advocacy group is set to decide whether the abortion pill mifepristone can stay on the market. Mifepristone is half of a two-pill regimen that now accounts for more than half of the abortions in the United States.

Meanwhile, Novo Nordisk, another of the three large drug companies that dominate the market for diabetes treatments, has announced it will cut the price of many of its insulin products. Eli Lilly announced its cuts early this month. But the push for more affordable insulin from activists and members of Congress is not the only reason for the change: Because of quirks in the way the drug market works, cutting prices could actually save the companies money in the long run.

This week’s panelists are Julie Rovner of KHN, Jessie Hellmann of CQ Roll Call, Sarah Karlin-Smith of the Pink Sheet, and Alice Miranda Ollstein of Politico.

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Jessie Hellmann
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Sarah Karlin-Smith
Pink Sheet

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Alice Miranda Ollstein
Politico

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Read Alice's stories

Among the takeaways from this week’s episode:

• The federal judge examining the decades-old approval of mifepristone could issue a decision at any time after a hearing largely behind closed doors, during which he appeared open to restricting access to the drug.
• Democratic governors seek to counter the chill of Republican states’ warnings to pharmacies about distributing mifepristone, and a separate lawsuit in Texas seeks to set a precedent for punishing people who aren’t medical providers for assisting someone in obtaining an abortion.
• In pandemic news, Congress is moving forward with legislation that would force the Biden administration to declassify intelligence related to the origins of covid-19, while the editor of Cochrane Reviews posted a clarification of its recently published masking study, noting it is “inaccurate” to say it found that masks are not effective.
• Top federal health officials sent an unusual letter to Florida’s surgeon general, warning that his embrace of vaccination misinformation is harmful, even deadly, to Americans. While covid vaccines come with some risk of negative health effects, contracting covid carries a higher risk of poor outcomes.
• Novo Nordisk’s announcement that it will cut insulin prices puts pressure on Sanofi, the remaining insulin maker that has yet to adjust its prices.
• The Veterans Health Administration will cover Leqembi, a new Alzheimer’s drug. The decision comes as Medicare considers whether it will also cover the drug. Experts caution that new drugs shaking up the weight-loss market could prove costly for Medicare.
• Washington is eyeing changes to federal rules that would affect the practice of medicine. One change would force health plans to speed up “prior authorization” decisions by health insurers and increase transparency around denials, which supporters say would help patients better access needed care. Another proposal would ban noncompete clauses in contracts, including in health care. Arguments for and against the change both cite the issue of physician burnout — though they disagree on whether the ban would make the problem better or worse.

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

Julie Rovner: “Tradeoffs” podcast’s “The Conservative Clash Over Abortion Bans,” by Alice Miranda Ollstein and Dan Gorenstein

Alice Miranda Ollstein: Politico’s “Sharpton Dodges the Spotlight on Latest Push to Ban Menthol Cigarettes,” by Julia Marsh

Sarah Karlin-Smith: Allure’s “With New Legislation, You Can Expect More Recalls to Hit the Beauty Industry,” by Elizabeth Siegel and Deanna Pai

Jessie Hellmann: The New York Times’ “Opioid Settlement Hinders Patients’ Access to a Wide Array of Drugs,” by Christina Jewett and Ellen Gabler

Also mentioned in this week’s podcast:

• CQ Roll Call’s “Noncompete Rule Puts Doctors, Hospitals at Odds,” by Jessie Hellmann
• Cochrane’s “Statement on ‘Physical Interventions to Interrupt or Reduce the Spread of Respiratory Viruses’ Review,” by Karla Soares-Weiser, editor-in-chief
• The “Osterholm Update” podcast’s “Truth in the Midst of Political Theater,” by Michael Osterholm and Chris Dall
• Stat’s “Denied by AI: How Medicare Advantage Plans Use Algorithms to Cut Off Care for Seniors in Need,” by Casey Ross and Bob Herman

click to open the transcript

Transcript: Judging the Abortion Pill

KHN’s ‘What the Health?’Episode Title: Judging the Abortion PillEpisode Number: 289Published: March 16, 2023

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, March 16, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hello.

Rovner: And Sarah Karlin-Smith the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

Rovner: So, we have more than enough news. Let us get right to it. We will start this week with abortion. And, of course, that means we will start in Texas. On Wednesday, federal District Judge Matthew Kacsmaryk held a four-hour hearing in Amarillo on a lawsuit charging that the FDA wrongly approved the abortion pill mifepristone back in the year 2000 and that he, Judge Kacsmaryk, should substitute his legal judgment for the FDA’s medical judgment and order the FDA to take it off the market. What was said at the hearing? Well, we don’t really know because only 18 reporters were allowed in. They weren’t allowed to take any electronic devices in with them. And there’s no audio and no transcript. But, Alice, I know you’ve been trying to follow this from afar, like I have. What do we know about what happened and when might we expect a ruling?

Ollstein: So we can expect a ruling literally at any time. Hopefully not while we are taping right now. The judge did say that he would rule as soon as possible, although with four hours of oral arguments to sift through, that could take a bit of time. I always bank on a Friday evening news dump, because that’s when it tends to happen.

Rovner: I keep reminding people that’s when the ACA [Affordable Care Act] ruling came down.

Ollstein: Exactly.

Rovner: Came down on the Friday before Christmas at 7:30 at night.

Ollstein: Exactly. Thankfully, some great reporters were able to make it and provided us with some updates about this. It was really fascinating. The judge definitely, as we anticipated from his record of working for conservative, explicitly anti-abortion organizations before he was confirmed to this judgeship, he did seem open to taking the steps that the challengers were asking for in restricting access to this medication. I think the question really is whether he is going to go for a full ban or — what a lot of the questions during oral arguments centered around — was around rolling back more recent FDA rules that allowed people to get the pills by telemedicine, by mail delivery. And so there is some question as to … if going all the way back to a 20-year-old FDA approval and overturning it is a bridge too far. Maybe these more recent agency rules are sort of more justifiable in having the court go after them. So, we’re all just on high, high alert, refreshing pages over here.

Rovner: Yeah. Once again, remind us of why this could have national impact, this one judge in Amarillo, Texas?

Ollstein: Yeah. So these anti-abortion medical groups incorporated in Amarillo specifically so that they could get in front of this judge who has a record of being an abortion opponent. And so this is an example of “judge shopping,” which is an increasingly common practice. So this could have national implications because it’s going after the federal regulations around these pills. Really, this will mainly impact blue and purple states, where the pills are still legal and still used today. A bunch of states have already banned them and put restrictions on all forms of abortion or just the pills. And so this really will squeeze states where their use is protected.

Rovner: And I think abortion rights organizations are freaked out because everybody thinks, well, it’s just one judge. You’ll go up to the next level and you’ll get it, you know, you’ll get it stayed. Except in this case, the next level is the 5th Circuit Court of Appeals, which is just as conservative. And we seem to do a lot of anti-abortion rulings. And then if you go above the 5th Circuit Court of Appeals, you’re at the Supreme Court, which just overturned Roe v. Wade. So if this judge rules for the plaintiffs in this case, there’s not a lot of hope, I guess, from the abortion rights side that anything could be overturned, right?

Ollstein: It also gets into really interesting stuff about what is on the labels of these different drugs. Pro-abortion rights and other medical groups have been pushing the FDA to officially add miscarriage management to the label of mifepristone, so that if it is banned in this case, people can still access it for that. That has not happened. It is used for miscarriage management off-label. That is the real risk of people losing access; they’re not just for abortion. Again, there are two pills that have been used for abortions together for the past 20 years, and the other one, misoprostol, there could be restrictions put on it through this case, but because it officially is labeled and marketed for non-abortion purposes, it’s harder to ban.

Rovner: It’s a stomach ulcer drug.

Ollstein: Exactly.

Rovner: All right. Well, assuming that the pill is not pulled from the market, the squabble over whether pharmacies will stock it continues. As we discussed at some length last week, Walgreens caved to threats of prosecution from Republican attorneys general and waffled on whether they’ll sell the pills, even in some states where abortion remains legal. Now, a group of Democratic governors are not so subtly urging seven other national pharmacy chains to pay no attention to those Republican attorneys general threats. Have we heard from any of the other pharmacy chains about whether they will or won’t sell mifepristone in the wake of Walgreens getting raked over the coals by both sides?

Ollstein: Total radio silence. And I think that the backlash to Walgreens is the reason for that. I think they saw what happened. They saw Walgreens getting really slammed from both sides. You know, you have anti-abortion folks slamming Walgreens for saying they’ll sell the pills anywhere in the country. And you have pro-abortion rights people mad at Walgreens for saying that they won’t sell them in some places. So it’s kind of a no-win situation. And the other pharmacies, I’m sure, are looking at that and saying, why would we stick our necks out getting certification from the drugmakers to sell the pills in the first place? It’s going to still take a while and who knows what could happen by the? And so why would we prematurely come out and say what we’re doing when we have no idea?

Rovner: Yeah, and I remind people for the millionth time that it’s not that Walgreens was going to stop selling them. None of the pharmacies have started selling them yet because it was only in January that FDA said for the first time that they could, which, as Alice points out, may be one of the things that this judge in Texas rolls back, if he doesn’t try to roll back the entire approval of the pill. One more on abortion: Also in Texas, the ex-husband of a woman who got an abortion last summer is suing three of her friends for, quote, “wrongful death” for allegedly helping her obtain abortion medication. His evidence largely comes from screenshots from a group chat, raising more calls for better privacy protections for electronic information. Meanwhile, it’s not even totally clear that the abortion was illegal last July, because there was some legal back and forth about whether Texas’ trigger law abortion ban was actually triggered when Roe was overturned the month before. If the ex-husband wins this suit, though, I’m wondering how much of a reaction there is going to be to nonmedical providers being found liable for damages. He’s suing them for $1,000,000. We keep hearing about this, but to my knowledge, it hasn’t actually happened yet, that nobody’s been convicted, I don’t think anywhere of, you know, abetting someone having an abortion, particularly a nonmedical provider.

Karlin-Smith: And then I mean, it seems like, again, it’s designed to have these chilling effects on people and get people to think twice before they do things they otherwise would. And I know this story raises the issue of whether there’ll be more pressure on tech companies to encrypt all data and messages, which would be interesting to see, you know, how companies react going forward. But we already know that …

Rovner: How the tech companies react.

Karlin-Smith: Right. I think we already have seen that doctors who take oaths and hold certain ethical standards to protect people’s health and life have felt like they’ve been put in very challenging situations between the law and what the best care they normally provide for their patients with abortion. So if doctors feel this way, if regular people feel like they’re also going to be on the hook for something, I would be more concerned, in the sense that regular people would feel even less protected. The medical providers, which tend to work for companies that have, you know, lawyers to help them guide them through their decision-making. And, you know, they have various types of insurance as well to help them through this stuff. So it does seem like it could have a big chilling effect if this ex-husband wins in any way.

Rovner: Yes. I mean, the point here is to just further isolate women who are pregnant and don’t want to be, for whatever reason, from reaching out, not just to medical providers, but to their friends, or at least, I guess, reaching out in some way other than in person. We will see how this one plays out. All right. Well, let’s talk about covid, which we haven’t done for a while. First, the reignited fight over the lab leak versus wet-market-origin theory. I have studiously tried to steer away from this because the one thing just about every expert agrees on is that we will probably never know for sure where covid-19 came from. And to quote Michael Osterholm, the esteemed epidemiologist at the University of Minnesota, we have to be prepared for the future for both events: another spillover event and for the lab leak. Still, the House moved forward with a bill this week, already passed by the Senate the week before, to require the declassification of some intelligence related to covid’s origins. Jessie, you covered it. What would the bill do? And is … do we think the president is going to sign this?

Hellmann: So the president hasn’t said yet if he will veto it, but if he does, it would be his first time vetoing something, if I’m not mistaken. So it could be a bad look if he does decide to make that decision. It passed the House 419 to 0. There were 16 non-voting members. It passed the Senate unanimously a few weeks ago, so I can’t imagine that he would veto it. And, basically, what the bill does, it would require the director of national intelligence to declassify information on covid-19 origins within 90 days and send the declassified report to Congress. It’s not clear how much that will illuminate. There’s so many questions about this. The intelligence community is still pretty divided on this issue, despite the Department of Energy, intelligence community saying a few weeks ago that they think it could have arose from a lab leak, though they said that with low confidence. So, it’s not really clear what information we’ll get from this.

Rovner: And this is just basically Congress saying, well, we don’t know, but we want to know what you know.

Hellmann: Yeah.

Rovner: Is that basically where we are?

Hellmann: Exactly. And there’s also, like, a lot of hearings going on right now in Congress where they’re starting to bring people and talk about this. And I think last week, or was it this week, a select committee had a closed meeting with the Department of Energy about their report. So there’s definitely a lot of interest in this.

Rovner: We will definitely see how this plays out. Well, another thing, we are still fighting about, three years in, the efficacy of masks. A couple of weeks ago, the gold-standard scientific organization, the Cochrane Review[s], put out a meta-analysis of mask studies conducted over the years that concluded there was not sufficient evidence to demonstrate that masks help stop the spread of respiratory illnesses. Well, as so often happens with conditional findings like those, mask opponents immediately trumpeted that the study shows that masks don’t work, which is not what the study showed. Now, in a fairly rare step, the editor of the Cochrane Review herself has posted a clarification of the summary of the study, which we will post in the show notes, but I will quote from it: “Commentators have claimed that a recently updated Cochrane Review shows that, quote, ‘Masks don’t work,’ quote, which is an inaccurate and misleading interpretation.” So what’s that line again? A lie travels around the world before the truth can even get out of bed. Is that where we are with masks now? We’ve gotten to the point where there’s this huge belief that masks don’t work. And the fact is, like the origin of covid, we don’t actually know.

Karlin-Smith: I think that the “don’t actually know” is maybe not the best way to put it. There are things we do know, and that’s some of what, you know, has tried to be clarified in the past week or so from this, although there is that ultimate question of: Is it too little, too late, and are people already sort of set in their views? And that’s the sort of thing for different types of researchers to figure out in terms of how you convince people of various evidence and stuff. But, you know, I think one line that stuck out to me is, in The New York Times piece, trying to dissect the nuance of this review. And it is really nuanced and you really have to appreciate those nuances. You know, they say is what we learn from the Cochrane Review is that particularly before the pandemic, distributing masks didn’t lead people to wear them. And thus, if a mask is going to work, but you don’t wear it, it’s not going to work. And you know, people who have been sort of anti-mask to some degree have said, well, but that does show masks don’t work, because if we can’t get people to wear masks, what does it matter? Of course, for people that want to wear a mask or, you know, are comfortable wearing a mask, there’s also plenty of evidence that shows well-fitting, quality masks will block covid. So you shouldn’t think on an individual level, “Let me throw away my N95. It’s not doing me any good.” It certainly is doing you good. And we have, you know, laboratory research and other research to prove that. So, you know, The New York Times did a really good job of dissecting what was really studied, how much was studied, pre-covid, post-covid, what they looked at, and to try and help people understand where we’re at, which is definitely, again, that there can be benefits to wearing masks. There are differences in population benefits versus individual benefits. And when you think about the population benefits, too, sometimes I think you also have to think about even small, subtle benefits on a population level can make a big difference. So even if mask-wearing isn’t the be-all and end-all some people maybe want you to think about, but it helps lower transmission and lowers cases on a population level, you know, that can translate to hundreds of thousands or even millions less cases, which can then lead, you know, to whatever corresponding number of deaths. So I think it’s also thinking about that, you know, something doesn’t have to be 100% effective in stopping transmission to be really valuable on a societal level.

Rovner: They could have summarized it as “Masks don’t work if people don’t wear them, and it’s hard to get people to wear them.” That would have been accurate. Right?

Karlin-Smith: But the other question is: How do we figure out how to get people to wear them if they do work?

Rovner: Well, but that’s not what this study was about.

Karlin-Smith: Right.

Ollstein: I found this whole reaction really depressing. And it’s been huge on Capitol Hill. It’s been coming up at all of these hearings with Republican members citing this and flatly declaring that it shows that masks don’t work, using it to go after officials like CDC Director [Rochelle] Walensky and excoriate her for recommending masks. And it just feels like we’ve learned nothing. Like Sarah was saying, we have not learned the difference between individual and population-level benefits. Everything is so black and white. Either something is completely effective or completely ineffective. There’s no nuance around reducing risk, and everyone keeps talking about how the next pandemic is inevitable. And it just feels like we absolutely have not learned anything from this one.

Rovner: Yeah, if you’d asked me three years ago where we would be in three years, this is not the place I would have predicted. Speaking of covid misinformation, this week the directors of the Food and Drug Administration and the Centers for Disease Control and Prevention took the rare step of writing a joint letter to Florida Surgeon General Joseph Ladapo — I assume that’s how he pronounces his name — warning that his claims that the covid vaccine is causing an upswing in adverse events are, quote, “incorrect, misleading and could be harmful to the American public.” Sarah, I’ve never seen a joint letter from the FDA and the CDC, certainly not to a state official. I mean, they must have been very unhappy about this.

Karlin-Smith: Yeah, I think it was a unique step. But also, Robert Califf at the FDA has made going after what he calls, you know, scientific misinformation, a key part of his commissionership. He often makes the claim that he feels like misinformation is what is killing so many Americans. So it wasn’t surprising in the sense that he felt the need to publicly respond in this way, particularly when you have an individual of such high stature in the state making claims that he feels are potentially dangerous to people. And a lot of what the Florida surgeon general said, again, has a little nugget of truth, but has largely been debunked in the way he’s framing it. So, yes, we do know there is some risk of these myocarditis, these negative heart effects from these covid mRNA vaccines. But we also know that getting covid actually poses a higher risk of these heart events. So it’s a trade-off that most people argue you would prefer to go with the vaccine than that. And so, the fact that, you know, you have such a high-level health official in a state perpetuating anti-vaccine sentiments, I think is why you see Califf and Walensky really feeling like they had to respond, though I’m a little bit perplexed as to why they decided to do it at this particular moment. But I think it’s because he actually addressed them first with a letter. But, you know, this surgeon general has been doing this for a while now.

Rovner: He’s been the surgeon general for a while, and he’s been saying things outside the mainstream, shall we say, for a while. Well, I want to turn to drug prices because there’s a lot of news there, too. Another one of the big three diabetes drugmakers, Novo Nordisk, has followed Eli Lilly’s lead in announcing it will slash the cost of many of its insulin products by up to 75%. First question, how much pressure will this put on Sanofi, the last of the drug companies that dominate the diabetes drug market? Are they almost inevitably going to follow?

Karlin-Smith: I think most people think it is inevitable, although maybe not for the reasons we’re all thinking. Some of it is just that peer pressure. But a big thing that sort of comes out in this: Sean Dickson, to give him credit, at West Health was sort of the first person I saw point this out. There’s changes in the law related to Medicaid rebates and what these companies will essentially, you know, the discounts they have to give Medicaid coming up, that when you raise your prices faster than inflation, because these insulin products have had their prices raised so much over the years, they were going to have to start owing the government money soon for their drugs instead of the government reimbursing them. So that’s seen as really probably one of the key reasons why these changes are happening when they’re happening, which is not to, like, take any credit away from all the advocates who have pushed for lower insulin prices over the years. Certainly, this law and regulation that was passed was designed, in fact, to motivate companies to do this. So, you know, there’s a cynical way of looking at it, and there’s another way of working at it. But, you know, I do think most people expect Sanofi to follow through, particularly if they think it’s going to impact their formulary placement, in terms of how they compete with these products. But then also just, you know, from a PR perspective, it’s not going to look good for them to be that last holdout.

Rovner: But this sort of leads to my next question. I haven’t seen anybody mention this yet, but I can’t help but think that particularly Lilly and Novo Nordisk are happy to cut the prices on insulin and get lots of good press, as you point out, because both of them are sitting on giant blockbuster drugs to treat obesity. Novo already has FDA approval for Wegovy, which is the same drug as its diabetes drug Ozempic, just in a larger dose. While Lilly already has the diabetes drug Mounjaro, whose clinical trials for obesity have shown it may be even more effective than Wegovy in helping people lose weight. Am I missing something here, or are these companies about to make a killing on other drugs?

Karlin-Smith: No, I mean, that’s one point. And I think, you know, Novo Nordisk is more reliant on insulin and diabetes products in general than Eli Lilly and Sanofi, which have broader profiles. But one thing to note is most of the insulin drugs that are getting list price cuts are older insulin. So, you know, Novo Nordisk notably did not cut the price of one of their newer insulins … in their announcement this week. So again, you have to look at which particular products they’re cutting and why. But there’s big concern about how the use of some of these diabetes medicines to treat obesity will impact budgets because such a large percentage of the U.S. population is overweight.

Rovner: You’re just getting to my next question.

Karlin-Smith: That’s what … I assumed you were thinking of this Medicare issue. Right now Medicare does not cover drugs for weight loss, but the thought process is, if they change that, because these drugs are much more effective than prior weight loss drugs have been, you know how will Medicare pay for these? So that’s another big drug pricing debate coming down the pike.

Rovner: I was just going to say, I mean, this is the thing that I’ve been thinking about, you know, and I guess the complication with Medicare … there’s a piece in the New England Journal of Medicine this week by a bunch of drug price researchers that said, well, maybe the cost-benefit for Medicare wouldn’t be quite as good as it would be for the younger population, because obesity is not such a factor for shortening your life if you’re over 65 than if you’re under 65. But as others point out, it’s unlikely that private insurers are going to start covering this medication if Medicare doesn’t. So you’ve got this sort of place where you’ve got these very promising drugs that are currently very expensive, many in the neighborhood of $1,300 a month, which is not what most people can afford, if insurance isn’t covering it. But the promise of working … and you’ve got all these rich people buying it from heaven-knows-what doctor. So there is actually a shortage. But this is expensive enough that if they can’t push the price down, it has the potential to really impact the entire cost of the health care system. Right?

Karlin-Smith: Right. I’ve seen people writing about this the way we were talking about the Alzheimer’s drugs if Medicare was decided to cover it for all patients who qualify for Alzheimer’s, some of the drugs that came out, how they would essentially have to raise premiums and the implications there. They remind me also of, a number of years ago now, when some new cholesterol-lowering medicines came out that were really pricey. And what would happen to Medicare if they got prescribed and used widely? That, of course, didn’t happen. In part, perhaps, because payers curtail these to some degree. This is going to become a really interesting public discussion because the costs issue, but it’s also sort of about how we think about obesity and weight loss. And for a long time, there’s been sort of a stigma attached to weight loss and weight loss products and people not thinking about it as a medical condition, something where you really need to try other things before you get a medicine or get a medical procedure. It’s sort of a personal failure, a cosmetic issue, issues of self-control … and the fact that these drugs are much more successful than previous weight loss medicines, which tended to not help people lose very much weight and had a lot more side effects, some of them were fairly dangerous.

Rovner: And got pulled off the market.

Karlin-Smith: Right.

Ollstein: For killing people.

Karlin-Smith: You’re going to confront a lot of issues head-on in figuring out how to deal with this, because it’s not just about price. It’s sort of thinking about what we consider a disease and what we’re willing to treat as a medical condition.

Rovner: Yeah, I think this is going to be a really big debate going forward. Well, you mentioned Alzheimer’s. And speaking of Alzheimer’s, the Veterans [Health] Administration has announced that it will offer patients with Alzheimer’s disease, that newest Alzheimer’s drug, Leqembi, is that how you pronounce it? It received accelerated approval from the FDA in January. That means more evidence needs to be presented to assure its safety and efficacy. Sarah, is this drug really better/safer than Aduhelm, which it’s a chemical cousin of, right? And that’s the one that we had all the fighting over last year. So what do we think Medicare is going to do with this drug?

Karlin-Smith: So we do have some evidence that this drug does seem to be an improvement over Aduhelm, even though Leqembi only got an accelerated approval so far from the FDA. FDA is already evaluating the drug for full approval because in that interim between when they filed the accelerated approval, they actually pretty much wrapped up a Phase 3 clinical trial that looked at outcomes and did show some benefit on cognition and so forth. There’s certainly a debate out there as to how meaningful that benefit was, but they have shown a hard clinical benefit in trials, not just changed a laboratory marker that is predictive of Alzheimer’s. So that is significant for the company. But it’s just that FDA and then I think CMS hasn’t really considered that further data yet. And so I think there is a good chance that if FDA grants the drug full approval, which I think is pretty likely, will reconsider it, and they maybe were just sort of buying them some time because, again, it is going to be a bit of a challenge to figure out how to operationalize this. The VA, if you compare to Medicare, I was looking yesterday, you know, the VA probably has a few hundred thousand people that might qualify for this drug versus Medicare potentially has upwards of 6 million or so forth. So the different budget process and the VA also has more ability to negotiate drug prices with the company than Medicare does right now for this particular product.

Rovner: So very first-world problems. We finally have drugs to treat things that we’ve been trying to treat effectively for a long time, except that we can’t afford them. So we’re going to … I imagine this debate is going to also continue. Well, finally this week, I wanted to talk briefly about the practice of medicine and the role of the federal government, even though that’s sort of what we’ve been talking about this entire time. Jessie, you wrote about the Biden administration’s rules barring noncompete clauses in employment this week. Obviously, this is something that transcends health care. Apparently, even Starbucks doesn’t want its trained baristas going to work for local competitors. But how does this affect health care?

Hellmann: Yeah, so from what I’ve heard, noncompetes are really rampant in the health care. Especially between physicians and group practices in hospitals. So I’ve seen a lot of doctors submitting comments to the FTC telling them, and some of these is begging them to finalize this rule. There have been … the American Academy of Family Physicians has come out really strongly in favor of the rule. Basically, the argument is that it contributes to burnout, when doctors can’t leave jobs they’re unhappy in. And it also contributes to workforce shortages. If you’re in a noncompete agreement saying that you can’t work at a competitor within a 10- or 20-mile radius and you’re really unhappy in your job, but you might feel compelled to just go work somewhere else. On the other side, you have the American Hospital Association coming out really forcefully against this rule, which is not a good sign and, obviously, very powerful in Washington. And they’re kind of using the covid pandemic as the impetus to try to block this, arguing that providers are really burned out right now. People are leaving the workforce. We really can’t afford to lose people at this time to competitors, and this will make it harder for us to retain and recruit workers. Both sides are making the same arguments in different ways.

Rovner: We’ll wait on these rules. Well, the other big intra-health care dispute that federal officials are being asked to weigh in on is prior authorization. That’s when insurers make it cumbersome for patients to get care their doctors want them to have. The idea is to prevent doctors from providing unnecessary or unnecessarily expensive care. But doctors say it just throws up barriers that make it harder even to get fairly typical care and puts patients at risk by delaying their treatment. I honestly thought this got taken care of in the Affordable Care Act, which incorporated the provisions of the patients’ bill of rights that Congress had been arguing about for the entire decade leading up to the ACA. But now the Biden administration has proposed rules that would require insurers to at least respond faster to prior authorization requests, although that wouldn’t start until 2026. This is actually one of the American Medical Association’s top issues. Is this just another example of people who are not doctors trying to practice medicine, i.e., the insurance companies, and does the federal government really have a role in all of this?

Karlin-Smith: I think this is a tough issue because usually the insurance companies do have doctors that are trying to make these decisions. What you see are doctors actually in medical practice, not an insurance company, complaining about as they’re often not the peers that they say they are. So, you know, you might have a cardiologist making a decision regarding a prior authorization that relates to something in the orthopedic field. So there’s questions about whether the people that really have enough knowledge are making the calls.

Rovner: Or, God forbid, they have nurses making these calls, too.

Karlin-Smith: But it’s one of these issues that’s really tough because there is a sort of in some cases, I think, a need and a reason to have prior authorization. And it can be useful because not all doctors are willing to, you know, maybe try the cheapest alternative for patients when one does exist. There are some, you know, to use the term, sort of, “quacks” out there that sometimes recommend things that the medical establishment overall would agree you shouldn’t be using on patients. But it’s just that the way this is, like, in the real world, it’s sort of gotten out of control, I guess, in some ways. The best way … where legitimate medical care is being denied, patients are going through prior authorization for refills of prescription drugs they clearly have benefited from and have been on for years. So it’s a tricky situation because there is certainly, for the government, an economic reason to have some degree of prior authorization. It’s just figuring out how to get the good out of it, where it actually can benefit and help, even both protect patients financially and medically without hurting patients, and particularly patients that don’t understand how to navigate the system and push back against bad decisions on prior auth.

Hellmann: There is also a really interesting story in Stat this week about the role of artificial intelligence and algorithms in making some of these decisions. So I do have questions about that. It does seem like I have been hearing more and more from doctors lately about how burdensome prior auth has been. I did a story a few months ago about prior authorization requirements for opioid treatment programs, and providers are saying it takes a long time to get approval. Sometimes you get denials for seemingly no reason, like people who need opioid treatment. Some of these people are really vulnerable, and once you decide you need care, you kind of want to get them at that moment. And they might not want to go through an appeals process. And that’s something that the administration has acknowledged is an issue, too. They say that they’re going to look at it.

Rovner: I remember when most of the health beat was actually refereeing these disputes between pieces of the medical establishment, so … there are other things that the administration is busy with in the health care realm. Well, that is the news for this week. Now it is time for our extra-credit segment — that’s where we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Sarah, why don’t you go first this week?

Karlin-Smith: I took a look at a story in Allure magazine: “With New Legislation, You Can Expect More Recalls to Hit the Beauty Industry.” And it’s a good explainer on modernizations to FDA’s regulations of cosmetics that passed in the end of the year in Congress. It’s the first overhaul since World War II. They say it gives the FDA some pretty big new authorities, like they can mandate the recall of a beauty product if it’s contaminated. Before they basically just had to beg companies to voluntarily do that, which in many cases companies don’t want products that might harm people to be on the market. But sometimes for whatever reason, they might not move as you want. And so it’s important for FDA to have that authority. You know, it also will do things like disclose common allergens to protect people, gives FDA a lot of new funding to help implement this. You know, I think it’s a pretty big consumer bill and it was kind of like an interesting thing to look at a different part of health policy we don’t often talk about. One thing that the story brings up that’ll be interesting to see and I know has been sort of a tension with leading up to whether this law would ever get passed, was how small companies will be able to handle this, and will it put basically small beauty out of business over big companies that know how to handle FDA and its regulations? So we’ll look to see what happens to your smaller cosmetic brands moving forward.

Rovner: Indeed. Jessie.

Hellmann: My extra credit is a story from The New York Times called “Opioid Settlement Hinders Patients’ Access to a Wide Array of Drugs.” And this is an angle I hadn’t really thought about: That $21 billion opioid settlement came with an agreement that distributors place stricter limits on drug suppliers to individual pharmacies and scrutinized their dispensing activity. But it doesn’t just apply to opioids. It applies to all controlled substances. So we’re seeing medications like Xanax and Adderall get caught up in this. And pharmacies are saying, like, it’s making it hard for them to fill prescriptions for patients and some of whom have had them for a really long time. And I don’t know, like, if anyone else has heard about the Adderall shortage — I don’t know if you would classify this as a shortage — but it’s an angle that I hadn’t really thought of. Like, it might not just be supply-chain issues.

Rovner: Yeah, I’ve heard about the Adderall shortage. I mean, I think there’s been a lot of coverage of that. So, yeah, I thought that was a really interesting story, too. Alice.

Ollstein: Yes. I chose a story by my colleagues up in New York, my colleague Julia Marsh, which is about the debate in New York over a flavored-cigarette ban and how it is dividing the civil rights community. And so, you have some civil rights leaders saying that we should ban menthol cigarettes because they have caused a lot of health harms to the Black community. They have long been marketed in ways that target the Black community. They’re in some ways more addictive than non-flavored tobacco. So they’re in support of this ban. And then you have Al Sharpton and some other civil rights leaders on the other side warning that such a ban and the enforcement of such a ban will lead to more police interaction with the Black community, more targeting, and potentially more deaths, which is what we’ve seen in the past. And so a fascinating piece about some …

Rovner: Deaths from law enforcement. Not from cigarettes.

Ollstein: Exactly. Well, yes, it’s kind of “damned if you do, damned if you don’t” on this issue. But a fascinating look at this and what could be a preview as the debates around this at the national level ramp up. So we’ve already seen this happen in California and some other states. Now, the debate is really hot in New York, but it could indicate some of the arguments we might hear if it really moves forward at the national level.

Rovner: Well, my extra credit this week is the latest episode of our competitor podcast “Tradeoffs,” which you really should also listen to regularly, by the way. It’s called “The Conservative Clash Over Abortion Bans,” and it’s actually by Alice here. And it’s a really close look at those exceptions to abortion bans, like for life or health. That’s something that we’ve talked about quite a bit here, except this looks at it from the viewpoint of how it’s dividing the anti-abortion community, which is really interesting. So, super helpful. Everybody listen to it. Thank you, Alice. OK. That is our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review — that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. As always, you can email us your comments or questions. We’re at whatthehealth — all one word — @kff.org. Or you can tweet me. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Sarah?

Karlin-Smith: @SarahKarlin

Rovner: Jessie.

Hellmann: @jessiehellmann

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

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

President Joe Biden’s fiscal 2024 budget proposal includes new policies and funding boosts for many of the Democratic Party’s important constituencies, including advocates for people with disabilities and reproductive rights. It also proposes ways to shore up Medicare’s dwindling Hospital Insurance Trust Fund without cutting benefits, basically daring Republicans to match him on the politically potent issue.

Meanwhile, five women in Texas who were denied abortions when their pregnancies threatened their lives or the viability of the fetuses they were carrying are suing the state. They charge that the language of Texas’ abortion ban makes it impossible for doctors to provide needed care without fear of enormous fines or prison sentences.

This week’s panelists are Julie Rovner of KHN, Shefali Luthra of The 19th, Victoria Knight of Axios, and Margot Sanger-Katz of The New York Times.

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Victoria Knight
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Shefali Luthra
The 19th

@Shefalil

Read Shefali's stories

Margot Sanger-Katz
The New York Times

@sangerkatz

Read Margot's stories

Among the takeaways from this week’s episode:

• Biden’s budget manages to toe the line between preserving Medicare and keeping the Medicare trust fund solvent while advancing progressive policies. Republicans have yet to propose a budget, but it seems likely any GOP plan would lean heavily on cuts to Medicaid and subsidies provided under the Affordable Care Act. Democrats will fight both of those.
• Even though the president’s budget includes something of a Democratic “wish list” of social policy priorities, the proposals are less sweeping than those made last year. Rather, many — such as extending to private insurance the $35 monthly Medicare cost cap for insulin — build on achievements already realized. That puts new focus on things the president has accomplished.
• Walgreens, the nation’s second-largest pharmacy chain, is caught up in the abortion wars. In January, the chain said it would apply for certification from the FDA to sell the abortion pill mifepristone in states where abortion is legal. However, last week, under threats from Republican attorneys general in states where abortion is still legal, the chain wavered on whether it would seek to sell the pill there or not, which caused a backlash from both abortion rights proponents and opponents.
• The five women suing Texas after being denied abortions amid dangerous pregnancy complications are not asking for the state’s ban to be lifted. Rather, they’re seeking clarification about who qualifies for exceptions to the ban, so doctors and hospitals can provide needed care without fear of prosecution.
• Although anti-abortion groups have for decades insisted that those who have abortions should not be prosecuted, bills introduced in several state legislatures would do exactly that. In South Carolina, those who have abortions could even be subject to the death penalty. So far none of these bills have passed, but the wave of measures could herald a major policy change.

Also this week, Rovner interviews Harris Meyer, who reported and wrote the two latest KHN-NPR “Bill of the Month” features. Both were about families facing unexpected bills after childbirth. 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: KHN’s “Girls in Texas Could Get Birth Control at Federal Clinics, Until a Christian Father Objected,” by Sarah Varney

Shefali Luthra: The 19th’s “Language for Treating Childhood Obesity Carries Its Own Health Risks to Kids, Experts Say,” by Jennifer Gerson

Victoria Knight: KHN’s “After People on Medicaid Die, Some States Aggressively Seek Repayment From Their Estates,” by Tony Leys

Margot Sanger-Katz: ProPublica’s “How Obamacare Enabled a Multibillion-Dollar Christian Health Care Cash Grab,” by J. David McSwane and Ryan Gabrielson

Also mentioned in this week’s podcast:

• The New York Times’ “The Programs You’d Have to Cut to Balance the Budget,” by Alicia Parlapiano, Margot Sanger-Katz, and Josh Katz

Click to open the transcript

Transcript: Biden Budget Touches All the Bases

KHN’s “What the Health?”Episode Title: Biden Budget Touches All the BasesEpisode Number: 288Published: March 10, 2023

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

Julie Rovner: Hello and welcome back to KHN’s “What the Health?” I’m Julie Rovner, chief Washington correspondent at Kaiser Health News. And I’m joined by some of the best and smartest health reporters in Washington. We are taping this week on Friday, March 10, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this. So here we go. Today we are joined via video conference by Shefali Luthra of The 19th.

Shefali Luthra: Hello.

Rovner: Victoria Knight of Axios News.

Victoria Knight: Hi. Good morning.

Rovner: And Margot Sanger Katz of The New York Times.

Margot Sanger Katz: Hello, everybody.

Rovner: Later in this episode we’ll have my “Bill of the Month” interview with Harris Meyer. It’s a twofer this time: two successive bills from two different families related to having a baby. But first, this week’s news. We are taping on Friday this week because President [Joe] Biden released his budget Thursday afternoon, and it felt weird to have a news podcast without talking about the budget. And yes, like most presidential budgets since the 1980s, this one is, quote-unquote, “dead on arrival” on Capitol Hill. But one thing the president’s budget does is provide a pretty-detailed look at the administration’s priorities and policy initiatives. Which health program stuck out to you as getting a publicity, if not an actual funding, boost in this document? Victoria, you were looking at the budget.

Knight: Yeah. My colleagues at Axios and I spent several hours yesterday morning going through the budget. I think it was really interesting because I think he was trying to toe the line between “we want to save Medicare, make sure it stays solvent,” but also “we want to push some more progressive ideas as well.” So there’s kind of both things in there. Some obvious things: He wants to permanently extend the enhanced tax credits for the ACA [Affordable Care Act] — so, make permanent those subsidies. Those expire, currently, at the end of 2025. He also wanted to do something called Medicaid-like coverage for eligible people in states that haven’t expanded Medicaid. And then he also wants to expand the number of drugs to be negotiated under the IRA [Inflation Reduction Act] and also move up the timeline a little bit. So, just an example: It’s supposed to be 10 drugs to be negotiated in 2026. And now he wants to do 20. Something also really interesting: [He] wants to do like a Netflix-like subscription service for hepatitis C to basically eradicate hepatitis C within the U.S.

Rovner: I thought that was maybe the most interesting thing in this budget because it’s something that we just hadn’t heard of before.

Knight: Yeah.

Rovner: That, basically, I mean, these hepatitis C drugs were really expensive when they first came out and there was concern that Medicaid programs, in particular, were going to have trouble paying for them because many of the people who have hepatitis C are intravenous drug users, and they’re more likely to get hepatitis C — or people in prison. Lots of people on Medicaid who have hepatitis C. And this would basically be a way to pay in advance for the drugs. Is that essentially what they would do?

Knight: Yeah. And I think it’s also interesting that it at least has one Republican senator — Bill Cassidy is super into this idea. He did something similar in Louisiana. I’m not sure there’s other Republicans that are on board for that, but I thought that was really interesting. You know, of course, he was talking about extending the $35 insulin cap to the commercial market. There’s some other stuff about behavioral health, pandemic preparedness. One other thing Shefali will appreciate also, he proposed increasing Title X family planning funding by almost 80% from 2023 levels, which I think — Shefali, maybe you know — [is] one of the highest increases they’ve ever proposed, in a while at least.

Luthra: Yeah, the family planning clinics, interest groups, etc., were very, very happy about this proposal, even if they know it will not become reality. I think their sense was this was a commitment that would be really transformative for them, especially now, when they are so tightly funded.

Rovner: I did notice that for a president who has not technically said that he’s running again, some of these targeted increases were for some of the very important interest groups who have been kind of, I won’t say whining, but complaining. You know, Title X had not gotten big increases since Biden became president. There’s an initiative for more money for home- and community-based care in Medicaid, which is something, again, there’s an active constituency for in the Democratic Party; the “Cancer Moonshot,” you know, which has obviously been something near and dear to President Biden’s heart; also more money … also, the [American] Cancer Society sent out a lot of emails yesterday saying, yay, thanks for proposing this big budget increase. So there does certainly seem to be a lot of touching of the important constituencies, perhaps in anticipation of reelection campaign?

[Three panelists chime in at once.]

Luthra: Julie, you forgot …

Sanger-Katz: I would say …

Knight: And I think he did … Go, Margot!

Rovner: One at a time! [laughing all around] Margot, you go first.

Sanger-Katz: I would say so. And I would also just point out that the Medicare policies in the bill were previewed by the White House a couple of days before the budget release, and they were, like, the main thing. This is what they were leading with. The president had an op-ed in The New York Times describing his Medicare policies, and they put out a fact sheet with a lot of the Medicare policies. And I think it really reflects this notion that improving the solvency of Medicare and also committing to not really cutting the core services of Medicare, that this is a very key political message that the president cares about, that the president wants to run on, and that he thinks is a very useful contrast with what some Republicans have proposed in the past and what he imagines they might want to propose as House Republicans get ready to release their own budget, which faces some difficult constraints because Speaker [Kevin] McCarthy has promised certain members that the budget that they will pass will be a balanced budget. And that’s quite hard to do without touching the big health care programs.

Rovner: Yeah. Republicans have not promised not to touch Medicaid, which now the president has been very careful to say, “It’s not just Medicare and Social Security. I’m not going to let you cut Medicare, the Affordable Care Act either.” All right, Victoria, you wanted to say something?

Knight: I think — it was also interesting that, I do think, the president did want to push forward some of the more progressive policies that … the progressive base care about, such as doing more negotiating of drugs; something Sen. Bernie Sanders (I-Vt.) has talked a lot about is the community health centers program; expanding Medicaid, home- and community-based services; … and the insulin price cap — things that I think the progressive base cares about as well. So I feel like, as you’re saying, that interest groups, but also the different bases and also the groups that care about reproductive health care, they want him to do something after Roe v. Wade. So it definitely was, like, this huge list of trying to cater to everyone.

Rovner: It’s kind of a Democratic wish list.

Sanger-Katz: At the same time, though, I think he did leave out some of the things that were part of the Build Back Better package. In the previous budgets, the president had gone even bigger on things that the progressive base wanted. And you can see a lot of things in this budget where he’s ticking those boxes, as you say. And I think a lot of policies that he has proposed in the past that he wasn’t able to get through the last Congress — but not all. It does seem like this budget is a little more focused on being able to reduce the deficit a little bit less on this very expansive notion of a robust federal government that is spending money to improve people’s lives in quite as many ways as the message that he has been proposing in his previous budgets. You can see, again, I think this is a pivot towards campaign mode, towards his assessment of the current political moment, growing concerns about the deficit and about inflation.

Rovner: But also, as you mentioned, Margot, they put out the Medicare part of this in advance, mainly because I feel like the Medicare part of the budget is not so much a part of, you know, the statement of the budget as it is a negotiating position for this whole fight we’re going to have over the debt ceiling in a couple of months, where the Republicans are going to want to demand cuts to programs basically in exchange for not letting the U.S. default on its debts. And what the president has managed to do here is say, “We’re going to lower the price of prescription drugs more, we’re going to tax the rich more. And those two things are going to a) reduce the deficit some and b) shore up the Medicare trust fund. So you can’t accuse me of not dealing with the impending problem of Medicare.” How much of a box does that actually put Republicans in when we start to get to these negotiations?

Sanger-Katz: I don’t know how much of a box it really puts them in for a couple of reasons. One is that some of what he’s proposing is really kind of an accounting gimmick. He’s taking money that is already flowing into the federal budget, that is already part of the dollars and cents of our deficit, and he’s just redirecting them from the general fund into the Medicare trust fund. So it is true that these proposals would extend the solvency of the Medicare Hospital Insurance Trust Fund, which is projected to run into some financial trouble in the coming decade. But it is not true that, like, all of the things that he’s proposing are actually new money. Some of it just comes out of other parts of the budget. It doesn’t change the deficit.

Rovner: So I will point out that that is a time honored way of extending the solvency of trusts.

Sanger-Katz: Oh, sure. I’m not saying that Biden is alone in doing that. But I just think there’s kind of three things he’s doing in this proposal. One of them is not deficit reduction. It’s just kind of moving money around. One is this drug price reduction proposal where he’s trying to get more savings by going more aggressively after more drugs. I think that is a place where he can put Republicans in a box a little bit. They’ve come out in opposition to the drug price negotiation provisions that were part of the Inflation Reduction Act that they passed last year. But those policies are super popular. The public really supports them. They feel like the pharmaceutical companies make too much money. They think that Medicare should be able to negotiate. So I think that’s a very politically shrewd decision that I think does demand potentially a response from Republicans as a possibility for deficit reduction. But then the third thing that he did is he really just raised taxes. You know, these are taxes on the rich; as Biden has been promising all along, he’s not going to raise taxes for people earning under $400,000 a year. So they’ve increased these payroll taxes, they’ve increased some investment taxes. There was kind of a loophole, a category of businesses that were not subject to that tax in the past. And, you know, I think those are basically nonstarters with Republicans. And when Republicans talk about deficit reduction, they often are very, very focused on cutting spending that the federal government does. They are much less interested in increasing taxes. And I do think that the fact that Biden led with this proposal, that he’s so comfortable talking about raising taxes as a core part of his platform, is a sign that the politics of tax cuts have changed a little bit, that that is … if you’re just taxing the rich, it seems like the public will accept that. Democrats seem actually excited about that in certain cases. But I still think tax increases are a hard political row to hoe. I think that it is not something that probably appeals to many Republican politicians. And I also think it’s probably not something that appeals to many Republican voters, either. So I don’t know that it really puts Republicans in a box in a meaningful way because they don’t feel any tension where their supporters will want them to do this thing.

Rovner: Obviously, this is a big fight yet to come. Victoria, you wanted to say something.

Knight: Yeah. I just want to add one thing. We did have, like, the first indicator: The House Freedom Caucus had a press conference this morning, and they didn’t give a lot of details, but they did say they want to restore Clinton-era work requirements for welfare programs. So they didn’t specify Medicaid, but it seems pretty likely that’s probably what they’re talking about. My colleagues and I did talk to some Republicans last week that were indicating they did want work requirements for Medicaid. So I think that seems like the very first. There’s going to be three different groups within the House Republican caucus that are going to release budgets: the Budget Committee, the House Freedom Caucus, the Republican Study Committee. So I think we are going to start seeing the outlines of what they want to do very soon. But that was kind of the first one coming out this morning, so …

Rovner: Yes, underscoring the fact that the Republicans don’t agree on what they want to do …

Knight: No.

Rovner: … which is why we haven’t seen their budget yet.

Knight: Exactly.

Rovner: Although I will point out President Biden’s budget was a month late, too.

Sanger-Katz: Can I just say one thing about the Republican budget? Because I actually spent a lot of time looking at various budget proposals and trying to examine this goal that the Republicans have of balancing the budget. Just like: How hard is it to balance the budget? And it turns out that it’s extremely hard. It’s sort of hard in a normal year. But in this post-covid era, when spending has been so elevated for so long, balancing the budget within a decade is just really, really, really hard. If you do it without raising taxes, which Republicans say they don’t want to raise taxes; if you do it without cutting defense spending, which Republicans say they don’t want to cut defense spending; if you do it without cutting Medicare or Social Security, which recently McCarthy has said he does not want to do — you end up just … this is just the basic math … having to cut everything else by 70%. That’s 7-0%. That is not the kind of cut that you can achieve even by imposing a work requirement on Medicaid, a work requirement on food stamps, and other kinds of policies that Republicans have proposed in the past. That is like deeply, deeply reducing the role of the federal government, you know, cutting Medicaid in more than half. Larry Levitt [KFF’s executive vice president for health policy] pointed out earlier this week reducing Medicaid spending by 70% probably means 50 million fewer people would have Medicaid coverage. And that’s just Medicaid. You’re talking about basically everything that the government does — environmental protection, law enforcement, military pensions, just about any program that you can think about in the government that’s not Medicare, Social Security, or direct defense spending. Seventy percent cut is quite hard to do. And so I am very curious to see what these budgets look like. I can tell you, having looked at some of the previous Republican proposals, that those all relied on some reductions to Medicare and Social Security because those programs represent such a large percentage of federal spending that if you don’t cut those at all, there’s just not a lot of dollars left. And in my reporting on this question, it does seem like one thing that the Republican Budget Committee is very likely to do is to use very aggressive assumptions about the economic growth that their policies will unleash. And so the idea is that if the economy grows by so much, then tax revenue, what increase all by itself, because people will be earning more money, and so that will enable them to balance the budget in 10 years without having to actually reduce the deficit by as much as independent scorekeepers like the Congressional Budget Office think would be necessary.

Rovner: Although I would point out that every time we’ve had one of these big tax cuts that Republicans say it’s going to grow the economy enough to pay for it, it has not grown the economy enough to pay for it.

Sanger-Katz: Indeed! You know, cutting everything that the government does by 70% probably actually would have a negative impact on the economy. People would be losing money. They would be losing their government jobs. These would be very large economic impacts that probably most economists do not think would lead to economic growth.

Rovner: Yeah, well, we will see. I will put, Margot, the nice story you did with your colleagues demonstrating all of this in chart form in the show notes. OK. Let us turn to abortion. We will start with Walgreens, poor Walgreens, caught in the maw of the abortion wars. In January, the FDA said that brick-and-mortar pharmacies for the first time could start dispensing the abortion pill, mifepristone, whose distribution had been tightly regulated since it was first approved more than 20 years ago. Almost immediately, both CVS and Walgreens, the country’s largest and second-largest pharmacy chains, announced they would apply for FDA certification to distribute the pills in states where abortion is still legal. Then, last month, 20 Republican state attorneys general, including at least four in states where abortion is still legal, warned CVS and Walgreens that if they send the pills by mail, they could be in violation of the 1873 Comstock Act, which we have talked about here before, which prohibited the mailing of items considered, air quotes, “obscene,” which at the time included information about birth control. Cut to last week when Walgreens appeared to cave to the pressure and the threat of legal action, saying it would not sell the pill in states where it’s illegal, not actually naming those states. Then, after a huge backlash, it tried to walk back its position a little, mostly leaving lots of questions. Shefali, what is your take on what Walgreens is and isn’t going to do now vis-a-vis mifepristone? They’ve kind of said both things.

Luthra: I think there’s a lot of layers here, but I want to go back to January for a moment, when we got that news from Walgreens and CVS so quickly that they would participate in providing mifepristone. Frankly, a lot of these folks that I spoke to were very surprised that [the pharmacies] reacted so quickly because carrying mifepristone in stock opens you up to really intense harassment, boycotts, protests from the anti-abortion movement. And we did see right away many of the premier anti-abortion movements calling for boycotts of Walgreens and CVS, for protests, etc. They have been organizing protests outside pharmacies right now. And there has been pressure from the beginning from governors like [Florida] Gov. Ron DeSantis instructing pharmacies not to stock the press down. The fact that Walgreens ultimately has caved in these states with hostile governments wasn’t surprising. If anything, it was surprising that it took quite so long. I am incredibly curious to see what happens with CVS and Rite Aid, the other two pharmacies that are now getting caught in the crosshairs, facing really intense pressure from lawmakers and politicians who support abortion access and also those who don’t. We saw in New York this week, the governor and the attorney general called on pharmacies to continue carrying mifepristone. Frankly, I’m skeptical that that really matters because there is no reason not to carry mifepristone in New York, a state where the government is very friendly to abortion.

Rovner: And we should point out, because this is my biggest frustration: Nobody’s actually doing it yet because nobody’s gotten certified yet.

Luthra: Correct.

Rovner: They’re not — all these headlines that said, “Walgreens is going to stop doing this.” It’s like, no, they’re going to not start doing this. Sorry.

Luthra: And we have no idea when they will get certified how long it would take. We have no idea, frankly, if mifepristone will still be able to be distributed in the country at that point, because we are still waiting on the ruling from this judge in Texas. We simply have so many open questions. And at this point, this really is more of an avenue for people to make statements about how they feel about abortion access, than it is actually affecting people’s ability to get care. The other statement grandstanding that I have been really struck by is what we’ve seen from the California governor, Gavin Newsom, who really does love to talk a lot about his pro-abortion rights bona fides, even if those statements don’t translate much into actual impact or policy. And what we saw this week was his promise that California wouldn’t do business with Walgreens if they wouldn’t stock mifepristone.

Rovner: And this is not just an idle threat in California, right? There’s a huge contract that he now says he’s not going to renew.

Luthra: So there is a contract. But friend of the podcast and former KHNer Sydney Lumpkin found the contract that Newsom was referring to. You would think it would be a significant amount of money, given how much attention it has gotten. It is a $54 million contract over five years. When you look at the overall market cap of Walgreens, a $30 billion company, it’s not clear exactly how meaningful that actually is compared to the pressure they are facing from lawsuits and the very powerful anti-abortion movement.

Rovner: So, and what … I mean, you referred to this, but what are we thinking that CVS and Rite Aid are going to do — having seen Walgreens literally put through the wringer here on this issue?

Luthra: I think that’s a really good question. I — I mean, coming into this week — had assumed that they would follow the path of Walgreens and do the exact same thing, right? Stock mifepristone, provide it with a doctor’s prescription in states where they are protected and face no legal risks, but perhaps not do so in those states where a) mifepristone is banned, as they have said they would not do. And also in states where, like Kansas, for instance, abortion is legal, but you have a very anti-abortion attorney general. It is quite interesting that they have not said either way what they will do beyond just, well we won’t do it in states where it’s illegal.

Rovner: Yeah, if I was advising CVS at this point, I would tell them to not say a word to anybody until some of this shakes out.

Luthra: Exactly.

Rovner: All right. Well, let us move on to Texas, where there is always abortion news. As Shefali mentioned, we have not had the decision yet on that abortion pill case out of Amarillo, but both sides are still going at it on other issues. Remember all those stories we’ve been chronicling about women with wanted pregnancies gone wrong who couldn’t get medical care until they were literally at death’s door or they went to another state? Well, five of them are suing the state of Texas, saying they should have been allowed to terminate their pregnancies under existing exceptions to the abortion bans, except that doctors and hospitals have been unwilling to risk giant fines and even jail time. The five women — some of whom are still pregnant, some of whom are not — want the state, whose officials continue to claim that these women were eligible for abortions in Texas if their lives were truly at risk, they want the state to clarify those exceptions even more. Is there any chance this happens? They’re not asking for the bans to be lifted. I mean, this is a kind of a unique lawsuit that we’ve not seen before because we’ve not seen that many women in this situation before.

Luthra: I think this is a pretty smart approach. I wouldn’t be surprised if it has better odds of success than, as you mentioned, a request to fully overturn Texas’ abortion bans because the exceptions are really unclear. Doctors do not feel safe talking about abortion, even in cases where it is likely that it would be very beneficial for the pregnant person, for a fetus that has really minimal chance of survival upon birth. One thing that Nancy Northup, the head of CRR [the Center for Reproductive Rights], said to me when I asked her is, depending on how this case goes, it is not at all unlikely that we see similar lawsuits filed in other states with abortion bans with similarly vague “life of the parent” exceptions that are, in reality, impossible to enforce. I think this is going to be the beginning of a very robust series of legal challenges to state abortion bans. And we’ll see better success for abortion rights lawyers in some states than in others — really depending on the makeup of these different states’ supreme courts.

Rovner: Yeah, I mean, it’s funny because over the years I’ve heard obviously lots of warning about this possibility, both from the Center for Reproductive Rights, which, as you say, is pushing this case, and other groups. But nobody could sue because nobody had standing, because it hadn’t happened. It was all theoretical. Well, now it’s happened and we have people to whom it is not theoretical, who are able to go to court and say, hey, this happened to us and it violated our rights and you need to do something about it.

Luthra: And I do want to add just one thing. I mean, it’s — I think we can’t understate just what these people have been through, the women who are suing Texas. I was just really struck by one woman who flew from Texas to Colorado for an abortion that she couldn’t get in state, paid extra for a seat by the airplane in case she went into labor on the flight, and said that she still has PTSD to this day from having to travel while afraid that she might go into labor and could die from it. Like, what these people are going through right now is just … it’s really difficult for us to imagine. And I think we’re just going to hear so many more stories that are really troubling about people whose lives have been so deeply put at risk, and they’re unable to get the care their doctors want to provide.

Rovner: Right. And I say for the 11th time, these are not women who got pregnant by accident and don’t wish to be pregnant. Many of these are women who’ve been through infertility treatment and were desperately anxious to be pregnant, were thrilled when they got pregnant, but whose pregnancy took a bad turn either for the fetus or, in some cases, one of the fetuses of twins, or in some cases the pregnant person themselves. Well, meanwhile, the Texas Republican legislature has been busy proposing even more abortion restrictions. Last week, we talked about a bill that would ban websites that include information about how to get abortion pills and punish internet providers who don’t block those sites. This week, we have a bill giving state officials the upper hand in prosecuting abortion cases in parts of the state where local Democratic prosecutors have suggested they don’t plan to zealously pursue such cases. Another bill would create a special prosecutor whose job would be, among other things, to pursue violations of the state’s abortion bans. Why is Texas such a hotbed of this?

Luthra: It’s always Texas. Texas is the biggest state in the country to have banned abortion, right? Most of the people who are traveling out of state — well, maybe not most, but the plurality — are Texans, because just so many people live there. And if we think about it, Roe v. Wade, as a case, it came from Texas. SB 8, the first law that allowed a state to circumvent Roe and ban abortions [at] anything after six weeks, that was a Texas law. This is a place where lawmakers really believe that they can be a fertile testing ground for the future of abortion restrictions. Between them and Missouri, I think, that is where we will see the bulk of innovative new ways to further restrict access.

Rovner: Well, speaking of big states that are banning or thinking about banning abortion, you wrote about Florida this week, which already has a ban on abortions after 15 weeks [and is] now considering a ban after six weeks. Florida is kind of a pivotal state in all this, right?

Luthra: Florida, third-biggest state in the country. And if we look at the map of the U.S. South and particularly the Southeast, Florida is just critical. Between Florida and North Carolina, that is where people across the region are going for abortions. And Florida has more than 60 clinics compared to, you know, around a dozen in North Carolina. If abortion there is banned after six weeks, there will be thousands of people who are displaced. They will probably have to go to North Carolina, while abortion is legal there, to Virginia and then to Illinois. And that is just really too far for so many people to travel. There just aren’t realistic options once you take Florida off the map.

Rovner: Well, finally, a bill has been introduced in the South Carolina legislature that could potentially subject patients who get abortions to the death penalty. Now, I am old enough to remember last year, when anti-abortion groups insisted they didn’t want to punish women who had abortions, just those who provide or facilitate them. I guess that’s not the case anymore.

Luthra: And I think we need to see where this bill goes. It is not the only state, either, where we are seeing legislation proposed that would treat abortion as murder or as homicide. There was a bill in Louisiana just last summer that failed on that front. But we have seen bills introduced in Tennessee, in Georgia, in so many others that I cannot remember now. But it’s a long list. I think what’s interesting is, so far, none of these bills have actually moved forward. And it’s still obviously early in the session. But what I’m curious about is, is this chipping away at the resistance toward these kinds of really strict abortion bans? And is this the first step in a multiyear effort to redirect who is punished for getting an abortion to switch from the doctors, the health care providers, to the pregnant people themselves, which has always been sort of this Rubicon the movement has been afraid to cross.

Rovner: Yeah, I remember in 2016 Chris Matthews was interviewing then-candidate Donald Trump and sort of got Donald Trump to say, you know, yes, the woman should be punished. And the anti-abortion movement came at him, like, no, no, no, that’s not what we say. That’s not what we want. And now it’s, you know, seven, eight years later and that’s not necessarily what people are saying. So, we will see how that goes. OK. That’s the news for this week. Now, we will play my “Bill of the Month” interview with Harris Meyer and then we’ll come back and do her extra credits.

We are pleased to welcome to the podcast Harris Meyer, who reported and wrote the last two KHN-NPR “Bill of the Month” stories, which are kind of related. Harris, welcome to “What the Health?”

Harris Meyer: Thanks very much, Julie.

Rovner: So, both of these bills have to do with something very common and very treacherous to your financial health: having a baby. Let’s start with baby No. 1, a now-3-year-old named Joey Trumble. Where is she from? Why was she in the hospital for 36 days?

Meyer: Joey was born prematurely in December 2019. Her mother, Brenna Kearney, is a writer in Chicago, and she was diagnosed with preeclampsia, and her doctors ordered her hospitalized at Northwestern. And then she developed a worse form of preeclampsia called HELLP syndrome. But anyway, the baby was born healthy but premature. And the baby, Joey, was treated at Northwestern Prentice, but without the knowledge of the parents the doctors who were treating her came over from next door from Lurie Children’s, and her hospital, Northwestern, was in network for her health plan. But Lurie Children’s doctors were out of network. They did not know that. So after her baby was sent home — it had about a month, 36 days, of hospitalization — the family got a bill of about $12,000, which was unexpected.

Rovner: That’s right. And we should point out that the baby was covered, right, under the mother’s health insurance.

Meyer: Correct.

Rovner: And yet they still got a bill for $12,000.

Meyer: That’s right. The hospitalization was covered. And, to their surprise, the doctors, the neonatologist from Lurie who treated the baby, were not covered in network. And so Brenna spent the next year contesting these charges. And they were never told that the doctors were out of the network. But she had found out that there was a 2011 Illinois law, which was in effect, which prohibited this kind of out-of-network billing for neonatology services.

Rovner: That’s right. And we should point out that this was before the federal No Surprises Act took effect, because this was late 2019.

Meyer: Correct.

Rovner: But there was a state law that should have applied.

Meyer: There was a state law. Illinois was a pioneer in this. So she cited that law to Blue Cross Blue Shield Illinois and to Lurie Children’s, and they said they knew nothing about it. So the bill was sent to collections about a year later, and she was able to get Blue Cross, finally, and, a year after the birth, to cover the Lurie doctor charges fully. However, in December, three years after she gave birth, she finds out she’s being billed again, after she thought the whole ordeal was over — many years after. And she finds out that Blue Cross of Illinois had taken the money back and now Lurie was coming after her and her husband again for the out-of-network charges. And that’s when she came to Kaiser Health News, and I made calls to Lurie, to Blue Cross of Illinois, and to Northwestern. And after my calls, Lurie agreed to drop the charges. But now a state senator, the Illinois Department of Insurance, and the Illinois attorney general are looking into this to see if there was a long pattern of violations by Lurie of this 2011 state law. And Brenna actually has been contacted now by three other women who experienced similar out-of-network bills from Lurie. So we’ll see what happens with that.

Rovner: So sort of a happy ending to that one. Let’s move to baby No. 2, or, more accurately, his mother. Who is she and what happened to her?

Meyer: OK. This was last June. Danielle Laskey is a school nurse, an RN, in Seattle. She was on vacation with the family. And at 26 weeks pregnant she felt that her water broke. Her doctors in Seattle ordered her to come back and said, you’d better come in. And her doctors were at Swedish Maternal & Fetal Specialty Center in Seattle, which was in network for her Blue Shield health plan. And when she got there, they said, yes, your water broke. You were at risk for the same complication from your first pregnancy three years ago. We want you to go to Swedish Medical Center across the street immediately, and we want you to stay there until you give birth, and we’ll monitor you. So she was in the hospital for seven weeks until she gave birth in August of last year.

Rovner: Oh, so just for context, Swedish is one of the big hospitals in Seattle, right?

Meyer: Yes, absolutely. And it’s one of the specialty facilities for this particular uncommon complication, which is called placenta accreta. Anyway, she was there for seven weeks. And again, she and her husband were not told that the hospital was out of network. But it turns out that Swedish, even though her doctors were — her Swedish doctors were in network for her health plan, it turns out that Swedish Medical Center was out of network, and she found out. Then the baby was born. The baby was in the hospital, the baby boy, for about a month. And then, meanwhile, after the baby was born, she experienced symptoms again, and she was rehospitalized for a day to have this placenta condition treated. Both those hospitalizations — you know, she and her husband, who’s a psychiatrist, thought they were emergencies. The doctors regarded them as emergencies. But yet afterward, the Regence Blue Shield and Swedish decided they were not emergencies. And so, guess what? The family was hit with over $100,000 in out-of-network bills for the two Swedish hospitalizations.

Rovner: And this was after the federal law took effect, right? This was last year.

Meyer: The federal law and a Washington state law were both in effect at that point, which say that you cannot apply out-of-network charges in an emergency situation. So, at first, Blue Shield said that it was not an emergency and it didn’t come under the law. And Swedish Medical Center was going to take the family to collections. The family appealed to Regence Blue Shield. Regence in January granted the appeal for the first hospitalization, erasing $100,000 or so of the charges. But the second hospitalization, $15,000 bill, was still in effect. And then they contacted Kaiser Health News. I contacted Regence Blue Shield and Swedish, and then the charges were dropped for the second hospitalization.

Rovner: Amazing how that happens.

Meyer: Yeah, well, it’s not a solution. So the twist on this one is that Regence Blue Shield said we decided it was an emergency and that it wasn’t proper that the doctors were in network but the hospital wasn’t, so we’re going to consider this an in network and erase the charges. But they said Regence Blue Shield had a contract with Swedish, which made Swedish a quote-unquote “participating provider”; therefore, the federal and state laws do not apply to that situation, and the hospital was allowed to charge the out-of-network charge. We’re going to erase it for this case, but the law does not apply to that situation.

Rovner: I confess, if I’m in a hospital and they say they’re a participating provider, I’m going to assume that means they’re in network. And in this case, it doesn’t, right?

Meyer: Right. It’s a very strange twist that my experts had never encountered before. I took the issue to the federal agency CMS, which administers the No Surprises Act, and they said that they’re going to look into this and HHS, Treasury Department, and Department of Labor are all going to have to look into this to see if this could be fixed through an agency guidance or whether this would require a congressional action to fix this apparent loophole in the law.

Rovner: Creativity. So what’s the takeaway here for both women and particularly for pregnant women who know at some point they’re likely to be in the hospital? You can’t ask every single person who touches you whether they’re in your network. And isn’t that what state and the federal law are supposed to guard against? These are the exact things that we assumed would be taken care of. Right?

Meyer: Right. Well, first of all, the family, the patient, and their loved ones need to ask the hospital and the insurer to tell them their rights under the No Surprises Act and make sure that both the insurer and the provider are following the letter of those federal and state laws. Second, if they do get, God forbid, a out-of-network bill, they need to immediately appeal that to the insurance company, and there’s a two-level appeal process. The second level, they get an independent review. And then, at the same time, they need to file a report or a complaint with the state attorney general’s office, the state department of insurance, and maybe even contact state legislators. There also are private agencies or private companies with nurses and lawyers, etc., that will help families, for a fee, address issues like this. Hopefully it shouldn’t require that, but sometimes it may. And of course, then there’s Kaiser Health News. You can file your “Bill of the Month” complaint through the portal, which we can’t deal with hundreds of thousands of cases, obviously.

Rovner: But we can help at least a few. And Harris Meyer, you helped two. So thank you very much. And thank you for joining us.

Meyer: Thank you, Julie.

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

Knight: My extra credit is called “They Could Lose the House — to Medicaid,” by Tony Leys, and it is published on NPR but is a KHN story. It’s about a family in Iowa who found out, after the mother in the family died, that they could lose their house because she was getting services through Medicaid. She had dementia, and so she needed really intensive at-home family care. Then after she died, they got a letter from the Iowa Department of Human Services — just a month after she died, so not long after — saying that the state was trying to recoup the money that they had spent on her care. So it was almost over $200,000 that they were asking for. And what was really upsetting is this family home was going to be the inheritance for the daughter. And so now they’re kind of like, what are we going to do? Thankfully, they don’t have to do anything with the house until something happens to the father. So it’s not gone immediately. But this is basically something that some states do. It’s called estate recovery programs. And if people use Medicaid in those states, the states have the ability to come back later … whether it’s, like, a house or they can ask for funds that these families used for Medicaid. So it’s really illuminating. I had no idea this was something that happened, and it varies by state to state. But in Iowa, this is something that they kind of pursue very aggressively.

Rovner: I remember when Congress made this a possibility, I think it was back in 1995. It’s been around, the possibility of states recouping Medicaid money for a long time. But as you point out, not all states do it. And it’s usually a surprise when states do do it. People still really don’t know about it. Shefali.

Luthra: So my story is from my 19th colleague, Jennifer Gerson. The headline is “Language for Treating Childhood Obesity Carries Its Own Health Risks to Kids, Experts Say.” And what Jen did, which I think is really smart and important, is she looked at the new clinical guidelines we got from the American Academy of Pediatrics. And those were meant to improve how we evaluate and treat obesity in children. And what she gets into is that there are a lot of children’s health experts, especially mental health experts, who are deeply concerned about what the impacts of these new guidelines could be, how they might exacerbate weight stigma, and how the long-term ramifications of some of the treatment guidelines could actually have worse outcomes for young people as a result, by building on weight stigma, which could lead to different kinds of unhealthy behaviors, could lead to mental health harms that could have much longer term repercussions, possibly more, in fact, dangerous than the actual problems that these guidelines are trying to treat. And one thing that Jen notes I think is really important is that the implications of weight stigma, in particular, are especially harmful for young girls who, as we know, are already facing so many mental health crises in general right now. I thought this was a really important look at a potentially really troubling unintended consequence, and I’m really glad Jen wrote about it.

Rovner: Yeah, I had no idea. It was a very counterintuitive but really interesting piece. Margot, what do you have this week?

Sanger-Katz: I wanted to suggest an article in ProPublica called “How Obamacare Enabled a Multibillion-Dollar Christian Health Care Cash Grab,” by J. David McSwane and Ryan Gabrielson which is just this wonderful historic dive into how the Affordable Care Act ended up allowing something called Christian health ministries to provide an alternative to health insurance. As we all know, the Affordable Care Act basically said, if you’re going to offer health insurance, it has to meet certain minimum guidelines in terms of what it covers and how it works. And these Christian health sharing ministries are just this huge, huge exception where basically it’s just, you know, groups of religiously affiliated people can get together and just pay for each other’s health care or not, depending on what they want to do. There has been a lot of reporting over the years about the degree to which these plans are kind of scammy or poorly run or are not paying for needed health care for their members who think that they are an alternative to insurance. And so this piece is just fun because it looked at the lobbying that generated this strange policy.

Rovner: Yeah. You know, I remember when they got the Christian sharing ministries exception into the ACA and not really knowing where it came from. Well, this story explains exactly where it came from. So it is quite an eye-popping read. Mine is from my KHN colleague Sarah Varney, and it’s called “Girls in Texas Could Get Birth Control at Federal Clinics, Until a Christian Father Objected. Now, for decades, underage girls have been able to get contraception from federally funded Title X family planning clinics without parental permission. An effort by the Reagan administration in the early 1980s, dubbed the “Squeal Rule,” which would have required that parents be notified after the fact, was struck down in federal court and the Reagan administration did not appeal it. And no, I was not there to cover that at that time. I did look it up. A couple of months ago, Judge Matthew Kacsmaryk — yes, that Judge Kacsmaryk, who will any day now rule on whether the FDA approval of the abortion pill should be revoked — ruled in favor of a father in Texas, not a father whose daughters did or said they wanted to obtain contraception from a Title X clinic. But the father complained that the very possibility that his daughters could get birth control without his consent rendered that portion of the law — which has been in effect since Title X, was signed by Richard Nixon in 1970 — unconstitutional. And of course, the judge agreed with him. So for now, the ruling only applies in Texas. But lest you think they’re not coming for your birth control, think again.

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

Luthra: I’m @shefalil

Rovner: Victoria.

Knight: @victoriaregisk

Rovner: Margot.

Sanger-Katz: @sangerkatz

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

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

With Medicare and Social Security apparently off the table for federal budget cuts, the focus has turned to Medicaid, the federal-state health program for those with low incomes. President Joe Biden has made it clear he wants to protect the program, along with the Affordable Care Act, but Republicans will likely propose cuts to both when they present a proposed budget in the next several weeks.

Meanwhile, confusion over abortion restrictions continues, particularly at the FDA. One lawsuit in Texas calls for a federal judge to temporarily halt distribution of the abortion pill mifepristone. A separate suit, though, asks a different federal judge to temporarily make the drug easier to get, by removing some of the FDA’s safety restrictions.

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

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Rachel Cohrs
Stat News

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Alice Miranda Ollstein
Politico

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Read Alice's stories

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories

Among the takeaways from this week’s episode:

• States are working to review Medicaid eligibility for millions of people as pandemic-era coverage rules lapse at the end of March, amid fears that many Americans kicked off Medicaid who are eligible for free or near-free coverage under the ACA won’t know their options and will go uninsured.
• Biden promised this week to stop Republicans from “gutting” Medicaid and the ACA. But not all Republicans are on board with cuts to Medicaid. Between the party’s narrow majority in the House and the fact that Medicaid pays for nursing homes for many seniors, cutting the program is a politically dicey move.
• A national group that pushed the use of ivermectin to treat covid-19 is now hyping the drug as a treatment for flu and RSV — despite a lack of clinical evidence to support their claims that it is effective against any of those illnesses. Nonetheless, there is a movement of people, many of them doctors, who believe ivermectin works.
• In reproductive health news, a federal judge recently ruled that a Texas law cannot be used to prosecute groups that help women travel out of state to obtain abortions. And the abortion issue has highlighted the role of attorneys general around the country — politicizing a formerly nonpartisan state post. –And Eli Lilly announced plans to cut the price of some insulin products and cap out-of-pocket costs, though their reasons may not be completely altruistic: An expert pointed out that a change to Medicaid rebates next year means drugmakers soon will have to pay the government every time a patient fills a prescription for insulin, meaning Eli Lilly’s plan could save the company money.

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

Julie Rovner: The New York Times’ “A Drug Company Exploited a Safety Requirement to Make Money,” by Rebecca Robbins.

Alice Miranda Ollstein: The New York Times’ “Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S.,” by Hannah Dreier.

Rachel Cohrs: STAT News’ “Nonprofit Hospitals Are Failing Americans. Their Boards May Be a Reason Why,” by Sanjay Kishore and Suhas Gondi.

Lauren Weber: KHN and CBS News’ “This Dental Device Was Sold to Fix Patients’ Jaws. Lawsuits Claim It Wrecked Their Teeth,” by Brett Kelman and Anna Werner.

Also mentioned in this week’s podcast:

• Politico’s “Why One State’s Plan to Unwind a Covid-Era Medicaid Rule Is Raising Red Flags,” by Megan Messerly.
• The Washington Post’s “Doctors Who Touted Ivermectin as Covid Fix Now Pushing It for Flu, RSV,” by Lauren Weber.
• NPR’s “To Safeguard Healthy Twins in Utero, She Had to ‘Escape’ Texas for Abortion Procedure,” by Selena Simmons-Duffin.
• The Daily Beast’s “Tennessee Abortion Ban a ‘Nightmare’ for Woman With Doomed Pregnancy,” by Michael Daly.

click to open the transcript

Transcript: March Medicaid Madness

KHN’s ‘What the Health?’Episode Title: Medicaid March MadnessEpisode Number: 287Published: March 2, 2023

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

Alice Miranda Ollstein: Good morning.

Rovner: Rachel Cohrs of Stat News.

Rachel Cohrs: Hi, everybody.

Rovner: And we officially welcome to the podcast panel this week Lauren Weber, ex of KHN and now at The Washington Post covering a cool new beat on health and science disinformation. Lauren, welcome back to the podcast.

Lauren Weber: Thanks for having me.

Rovner: So we’re going to get right to this week’s news. We’ve talked a lot about the political fight swirling around Medicare the past couple of weeks. So this week, I want to talk more about Medicaid. Our regular listeners will know, or should know, that states are beginning to re-determine eligibility for people who got on Medicaid during the covid pandemic and were allowed to stay on until now. In fact, Arkansas is vowing to re-determine eligibility for half a million people over the next six months. Alice, the last time Arkansas tried to do something bureaucratically complicated with Medicaid, it didn’t turn out so well, did it?

Ollstein: No. It was so much of a cautionary tale that no other state until now has gone down that path, although now at least a couple are attempting to. So Arkansas was the only state to actually move forward under the Trump administration with implementing Medicaid work requirements. And we covered it at the time, and just thousands and thousands of people lost coverage who should have qualified. They were working. They just couldn’t navigate the reporting system. Part of the problem was that you had to report your working hours online and a lot of people who are poor don’t have access to the internet. And, you know, the system was buggy and clunky and it was just a huge mess. But that is not stopping the state from trying again on several fronts. One, they want to do Medicaid work requirements again. The governor, Sarah Huckabee Sanders, has said that they plan to do that and also they plan to do their redeterminations for the end of the public health emergency in half the time the federal government would like states to take to do it. The federal government has incentives for states to go slow and take a full year to make sure people know how to prove whether or not they qualify for Medicaid and to learn what other insurance coverage options might be available to them. For instance, you know, Obamacare plans that are free or almost free.

Rovner: Yeah. Presumably most of the people who are no longer eligible for Medicaid but are still low-income will be eligible for Obamacare with hefty subsidies.

Ollstein: That’s right. So the fear is that history will repeat itself. A lot of people who should be covered will be dropped from coverage and won’t even know it because the state didn’t take the time to contact people and seek them out.

Rovner: This is something that we will certainly follow as it plays out over the next year. More broadly, though, there have been whispers — well, more than whispers, whines — over the past couple of weeks that President [Joe] Biden’s challenge to Republicans not to cut Social Security and Medicare, and Republicans’ apparent acceptance of that challenge, specifically leaves out Medicaid. Now, I never thought that was true, at least for the Democrats. But earlier this week, President Biden extended his promises to Medicaid and the Affordable Care Act. How much of a threat is there really to Medicaid in the coming budget battles? Rachel, you wrote about that today.

Cohrs: There is a lot of anxiety swirling around this on the Hill. I know there’s a former Trump White House official who’s circulated some documents that are making people a little bit nervous about Republicans’ position. But it is useful to look at existing documents out there. It is not reflective necessarily of the consensus Republican position. And it’s a very diverse party right now in the House. They have an incredibly narrow majority and Kevin McCarthy is really going to have to walk a tightrope here. And I think it is important to remember that when Medicaid has come up on steep ballot initiatives in red states, so many times it has passed overwhelmingly. So I think there is an argument to be made that Medicaid enjoys more political support among the GOP voting populace than maybe it does among members of Congress. So I think I am viewing it with caution. You know, obviously, it’s something that we’re going to have to be tracking and watching as these negotiations develop. But Democrats still hold the Senate and they still hold the presidency. So Republicans have more leverage than they did last Congress, but they’re still … Democrats still have a lot of sway here.

Rovner: Although I’ll just point out, as I think I pointed out before, that in 2017, when the Republicans tried to repeal the Affordable Care Act, one of the things they discovered is that Medicaid is actually kind of popular. I think … much to their surprise, they discovered that Medicaid is also kind of popular, maybe not as much as Medicare, but more than I think they thought. So I guess the budget wars really get started next week: We get President Biden’s budget, right?

Ollstein: And House Republicans are allegedly working on something. We don’t know when it will come or how much detail it will have, but it will be some sort of counter to Biden’s budget. But, you know, the real work will come later, in hashing it out in negotiations. And, really, a small number of people will be involved in that. And so just like Rachel said, you know, you’re going to see a lot of proposals thrown out over the next several months. Not all of them should necessarily be taken seriously or taken as determinative. Just one last interesting thing: This has been a really interesting education time, both for lawmakers and the public on just who is covered under these programs. I mean, the idea is that Medicare is so untouchable, is this third rail, because it is primarily seniors, and seniors vote. And seniors are more politically important to conservatives and Republicans. But people forget a lot of seniors are also on Medicaid. They get their nursing home coverage through there. And so I’ve heard a lot of Democratic lawmakers really hammering that argument lately and saying, look, you know, the stereotype for Medicaid is that it’s just poor adults, but …

Rovner: Yeah, moms and kids. That was how it started out.

Ollstein: Exactly.

Rovner: It was poor moms and kids.

Ollstein: Exactly. But it’s a lot more than that now. And it is more politically dicey to go after it than maybe people think.

Rovner: Yeah, I think Nancy Pelosi … in 2017 when, you know, if the threat with Medicare is throwing Granny off the cliff in her wheelchair, the threat of Medicaid is throwing Granny out of her nursing home, both of which have their political perils. All right. Well, we’ll definitely see this one play out for a while. I want to move to the public health beat. Lauren, you had a really cool story on the front page of The Washington Post this week about how the promise of ivermectin to treat infectious diseases in humans. And for those who forget, ivermectin is an anti-wormer drug that I give to my horse and both of my dogs. But the idea of using it for various infectious diseases just won’t die. What is the latest ivermectin craze?

Weber: Yes, and to be clear, there is an ivermectin that is a pill that can be given to humans, which is what these folks are talking about. But there’s this group called the Front Line COVID-19 Critical Care Alliance that really pushed ivermectin in the height of covid. As we all know on this podcast, scientific study after scientific study after clinical trial has disproved that there is any efficacy for that. But this group has continued to push it. And I discovered, looking at their website back this winter, that they’re now pushing it for the flu and RSV. And as I asked the CDC [Centers for Disease Control and Prevention] and medical experts, there’s no clinical data to support pushing that for the flu or RSV. And, you know, as one scientist said to me, they had data that … had antiviral properties in a test tube. But as one scientist said to me, well, if you put Coca-Cola in a test tube, it would show it had antiviral properties as well. So there’s a lot of pushback to these folks. But, that said, they told me that they have had their protocols downloaded over a million times. You know, they’re … absolutely have some prominence and have, you know, converted a share of the American population to the belief that this is a useful medical treatment for them. And one of the doctors that has left their group over their support of ivermectin said to me, “Look, I’m not surprised that they’re continuing to push this for something else. This is what they do now. They push this for other things.” And so it’s quite interesting to see this continue to play out as we continue into covid, to see them kind of expand, as these folks said to me, into other diseases.

Rovner: I know I mean, usually when we see these kinds of things, it’s because the people who are pushing them are also selling them and making money off of them. And I know that’s the case in some of this, but a lot of these are just doctors who are writing prescriptions for ivermectin. Right? I mean, this is an actual belief that they have.

Weber: Yeah, some of them do make money off of telehealth appointments. They can charge up to a couple hundred dollars for telehealth appointments. And one of the couple of co-founders had a lucrative Substack and book deal that talks about ivermectin and do get paid by this alliance. One of them made almost a quarter of a million dollars in salary from the alliance. But yeah, I mean, the average doctor that’s prescribing ivermectin, I mean — there were over 400,000 ivermectin prescriptions in, I think, it was August of 2021. So that’s a lot of prescriptions.

Rovner: They’re not all making money off of it.

Weber: They’re not all making money. And I mean, what’s wild to me is Merck has come out and said, which, in a very rare statement for a pharmaceutical company, you know, don’t prescribe our drug for this. And when I asked them about RSV and the flu, they said, yeah, our statement would still stand on that. So it’s a movement, to some extent. And the folks I talked to about it, they really believe …

Rovner: And I will say, for a while in 2021, you couldn’t get horse wormer, which is a very nasty-tasting paste, even the horses don’t really like it. Because it was hard to get ivermectin at all. So we’ll see where this goes next. Here’s one of those “in case you missed It” stories. The Tulsa World this week has an interview with former Republican Sen. James Inhofe, who said, in his blunt Inhofe way, that he retired last year not only because he’s 88, but because he’s still suffering the effects of long covid. And he’s not the only one — quote, “five or six others have [long covid], but I’m the only one who admits it,” he told the paper, referring to other members of the Senate, presumably other Republican members of the Senate. Now, mind you, the very conservative Inhofe voted against just about every covid funding bill. And my impression from not going to the Hill regularly in 2021 and 2022 is that while covid seemed to be floating around in the air, lots of people were getting it, very few people seemed to be getting very sick. But now we’re thinking that’s not really the case, right?

Ollstein: When I saw this, I immediately went back to a story I wrote about a year ago on Tim Kaine’s long covid diagnosis and his attempts to convince his colleagues to put more research funding or treatment funding, more basic covid prevention funding … you know, fewer people will get long covid if fewer people get covid in the first place. And there was just zero appetite on the Republican side for that. And that’s why a lot of it didn’t end up passing. Inhofe was one of the Republicans I talked to, and I said, you know, do you think you should do more about long covid? What do you think about this? And this is what he told me: “I have other priorities. We’re handling all we can right now.” And then he added that long covid is not that well defined. And he argued there’s no way to determine how many people are affected. Well.

Rovner: OK.

Ollstein: So that … in “Quotes That Aged Poorly Hall of Fame.”

Rovner: You know, obviously Tim Kaine came forward and talked about it. But now I’m wondering if there are people who are slowing down or looking like they’re not well, maybe they have long covid and don’t want to say.

Ollstein: Well, I mean, something that Tim Kaine’s case shows is that there’s no one thing it can look like and somebody can look completely healthy and normal on the outside and be suffering symptoms. And Tim Kaine has also said that members of Congress have quietly disclosed to him and thanked him for speaking up, but said they weren’t willing to do it themselves. And he, Tim Kaine, told me that he felt more comfortable speaking up because the kind of symptoms he had were less stigmatized. They weren’t anything in terms of impeding his mental capacity and function. And there’s just a lot of stigma and fear of people coming forward and admitting they’re having a problem.

Rovner: I find it kind of ironic that last week we talked about how, you know, members of Congress and politicians with mental health, you know, normally stigmatizing problems are more willing to talk about it. And yet here are people with long covid not willing to talk about it. So maybe we’ll see a little bit more after this or maybe not. I want to talk a little bit about artificial intelligence and health care. I’ve been wanting to talk about this for a while, but this week seems to be everyone is talking about AI. There have been a spate of stories about how different types of artificial intelligence are aiding in medical care, but also some cautionary tales, particularly about chat engines. They get all their information from the internet, good or bad. Now, we already have robots that do intricate surgeries and lots and lots of treatment algorithms. On the other hand, the little bit of AI that I already have that’s medical-oriented, my Fitbit, that sometimes accurately tracks my exercise and sometimes doesn’t, and the chat bot from my favorite chain drugstore that honestly cannot keep my medication straight. None of that makes me terribly optimistic about launching into health AI. Is this, like most tech, going to roll out a little before it’s ready and then we’ll work the bugs out? Or maybe are we going to be a little bit more careful with some of this stuff?

Cohrs: I think we’ve already seen some examples of things rolling out before they’re exactly ready. And I just thought of my colleague Casey Ross’ reporting on Epic’s algorithm that was supposed to help …

Rovner: Epic, the electronic medical records company.

Cohrs: Yes, yes. They had this algorithm that was supposed to help doctors treat sepsis patients, and it didn’t work. The problem with using AI in health care is that there are life-and-death consequences for some of these things. If you’re misdiagnosing someone, if you’re giving them medicine they don’t need, there are, like, those big consequences. But there are also the smaller ones too. And my colleague Brittany Trang wrote about how with doctor’s notes or transcripts of conversations between a physician and a patient sometimes AI has difficulty differentiating between an “mm-hm” or an “uh-huh” and telling whether that’s a yes or a no. And so I think that there’s just all of these really fascinating issues that we’re going to have to work through. And I think there is enormous potential, certainly, and I think there’s getting more experimentation. But like you said, I think in health care it’s just a very different beast when you’re rolling things out and making sure that they work.

Weber: Yeah, I wanted to add, I mean, one of the things that I found really interesting is that doctors’ offices are using some of it to reduce some of the administrative burden. As we all know, prior authorizations suck up a lot of time for doctors’ offices. And it seems like this has actually been really helpful for them. That said, I mean, that comes with the caveat of — my colleagues and I and much reporting has shown that — sometimes these things just make up references for studies. They just make it up. That level of “Is this just a made-up study that supports what I’m saying?” I think is really jarring. This isn’t quite like using Google. It cannot be trusted to the level … and I think people do have caution with it and they will have to continue to have caution with it. But I think we’re really only at the forefront of figuring out how this all plays out.

Rovner: I was talking before we started taping about how I got a text from my favorite chain drugstore saying that I was out of refills and that they would call my doctor, which is fine. And then they said, “Text ‘Yes’ if you would like us to call” … some other doctor. I’m like, “Who the heck is this other doctor?” And then I realize he’s the doctor I saw at urgent care last September when I burned myself. I’m like, “Why on earth would you even have him in your system?” So, you know, that’s the sort of thing … it’s like, we’re going to be really helpful and do something really stupid. I worry that Congress, in trying to regulate tech, and failing so far — I mean, we’ve seen how much they do and don’t know about, you know, Facebook and Instagram and the hand-wringing over TikTok because it’s owned by the Chinese — I can’t imagine any kind of serious, thoughtful regulation on this. We’re going to have to basically rely on the medical industry to decide how to roll this out, right? Or might somebody step in?

Ollstein: I mean, there could be agency, you know, rulemaking, potentially. But, yes, it’s the classic conundrum of technology evolving way faster than government can act to regulate it. I mean, we see that on so many fronts. I mean, look how long has gone without any kind of update. And, you know, the kinds of ways health information is shared are completely different from when that law was written, so …

Rovner: Indeed.

Weber: And as Rachel said, I mean, this is life-or-death consequences in some places. So the slowness with which the government regulates things could really have a problem here, because this is not something that is just little …

Rovner: Of the things that keep me awake at night, this is one of the things that keeps me awake at night. All right. Well, one of these weeks, we will not have a ton of reproductive health news. But this week isn’t it. As of this taping, we still have not gotten a decision in that Texas case challenging the FDA approval of the abortion pill, mifepristone, back in the year 2000. But there’s plenty of other abortion news happening in the Lone Star State. First, a federal judge in Texas who was not handpicked by the anti-abortion groups ruled that Texas officials cannot enforce the state’s abortion ban against groups who help women get abortion out of state, including abortion funds that help women get the money to go out of state to get an abortion. The judge also questioned whether the state’s pre-Roe ban is even in effect or has actually been repealed, although there are overlapping bans in the state that … so that wouldn’t make abortion legal. But still, this is a win for the abortion rights side, right, Alice?

Ollstein: Yeah, I think the right knows that there are two main ways that people are still getting abortions who live in ban states. They’re traveling out of state or they are ordering pills in the mail. And so they are moving to try to cut off both of those avenues. And, you know, running into some difficulty in doing so, both in the courts and just practically in terms of enforcing. This is part of that bigger battle to try to cut off, you know, people’s remaining avenues to access the procedure.

Rovner: Well, speaking exactly of that, Texas being Texas, this week, we saw a bill introduced in the state legislature that would ban the websites that include information about how to get abortion pills and would punish internet providers that fail to block those sites. It would also overturn the court ruling we just talked about by allowing criminal prosecution of anyone who helps someone get an abortion. Even a year ago, I would have said this is an obvious legislative overreach, but this is Texas. So now maybe not so much.

Ollstein: I mean, I think lots of states are just throwing things at the wall to see what sticks and to see what gets through the courts. You had states test the waters on banning certain kinds of out-of-state travel, and that hasn’t gone anywhere yet. But even things that don’t end up passing and being implemented can have a chilling effect. You have a lot of confusion right now. You have a lot of people not sure what’s legal, what’s not. And if you create this atmosphere of fear where people might be afraid to go out of state, might be afraid to ask for funding to go out of state, afraid to Google around and see what their options are that serves the intended impacts of these proposals, in terms of preventing people from exploring their options and seeing what they can do to terminate a pregnancy.

Rovner: Yeah. Well, meanwhile, a dozen states that are not named Texas are suing the FDA, trying to get it to roll back some of the prescribing requirements around the abortion pill. The states are arguing that not only are the risk-mitigation rules unnecessary, given the proven safety of mifepristone, but that some of the certification requirements could invade the privacy of patients and prescribers and subject them to harassment or worse. They’re asking the judge to halt enforcement of the restrictions while the case is being litigated. That could run right into [U.S. District] Judge [Matthew] Kacsmaryk’s possible injunction in Texas banning mifepristone nationwide. Then what happens? If you’ve got one judge saying, “OK, you can’t sell this nationwide,” and another judge saying … “Of course you can sell it, and you can’t use these safety restrictions that the FDA has put around it.” Then the FDA has two conflicting decisions in front of it.

Weber: Yeah, and I find the battles of the AGs and the abortion wars are really fascinating because, I mean, this is a lawsuit brought by states, which is attorneys general, Democratic attorneys general. And you’re seeing that play out. I mean, you see that in Texas, too, with [Ken] Paxton. You see it in Michigan with [Dana] Nessel. I mean, I would argue one of the things that attorney generals have been the most prominent on in the last several decades of American history and have actually had immediate effects on due to the fall of Roe v. Wade. So we’ll see what happens. But it is fascinating to see in real time this proxy battle, so to speak, between the two sides play out across the states and across the country.

Rovner: No, it’s funny. State AGs did do the tobacco settlement.

Weber: Yes.

Rovner: I mean, that would not have happened. But what was interesting about that is that it was very bipartisan.

Weber: Well, they were on the same side.

Rovner: And this is not.

Weber: Yeah, I mean, yeah, they were on the same side. This is a different deal. And I think to some extent, and I did some reporting on this last year, it speaks to the politicization of that office and what that office has become and how it’s become, frankly, a huge launching pad for people’s political careers. And the rhetoric there often is really notched up to the highest levels on both sides. So, you know, as we continue to see that play out, I think a lot of these folks will end up being folks you see on the national stage for quite some time.

Ollstein: I’ve been really interested in the states where the attorney general has clashed with other parts of their own state government. And so in North Carolina, for example, right now you have the current Democratic attorney general who is planning to run for governor. And he said, I’m not going to defend our state restrictions on abortion pills in court because I agree with the people challenging them. And then you have the Republican state legislatures saying, well, if he’s not going to defend these laws, we will. So that kind of clash has happened in Kentucky and other states where the attorney general is not always on the same side with other state officials.

Rovner: If that’s not confusing enough, we have a story out of Mississippi this week, one of the few states where voters technically have the ability to put a question on the ballot, except that process has been blocked for the moment by a technicality. Now, Republican legislators are proposing to restart the ballot initiative process. They would fix the technicality, but not for abortion questions. Reading from the AP story here, quote, “If the proposed new initiative process is adopted, state legislators would be the only people in Mississippi with the power to change abortion laws.” Really? I mean, it’s hard to conceive that they could say you can have a ballot question, but not on this.

Ollstein: This is, again, part of a national trend. There are several Republican-controlled states that are moving right now to attempt to limit the ability of people to put a measure on the ballot. And this, you know, comes as a direct result of last year. Six states had abortion-related referendums on their ballot. And in all six, the pro-abortion rights side won. Each one was a little different. We don’t need to get into it, but that’s the important thing. And so people voted pretty overwhelmingly, even in really red states like Kentucky and Montana. And so other states that fear that could happen there are now moving to make that process harder in different ways. You have Mississippi trying to do, like, a carve-out where nothing on abortion can make it through. Other states are just trying to raise, like, the signature threshold or the vote threshold people need to get these passed. There are a lot of different ways they’re going about it.

Rovner: I covered the Mississippi “personhood” amendment back in 2011. It was the first statewide vote on, you know, granting personhood to fetuses. And everybody assumed it was going to win, and it didn’t, even in Mississippi. So I think there’s reason for the legislators who are trying to re-stand up this ballot initiative process to worry about what might come up and how the voters might vote on it. Well, because I continue to hear people say that women trying to have babies are not being affected by state abortion bans and restrictions, this week we have not one but two stories of pregnant women who were very much impacted by abortion bans. One from NPR is the story of a Texas woman pregnant with twins — except one twin had genetic defects not only incompatible with life, but that threatened the life of both the other twin and the pregnant woman. She not only had to leave the state for a procedure to preserve her own life and that of the surviving twin, but doctors in Texas couldn’t even tell her explicitly what was going on for fear of being brought up on charges of violating the state’s ban. I think, Alice, you were the one talking about how, you know, women are afraid to Google. Doctors are afraid to say anything.

Ollstein: Yeah, absolutely. I mean, it’s a really chilling and litigious environment right now. And I think, as more and more of these stories start to come forward, I think that is spurring the debates you’re seeing in a lot of states right now about adding or clarifying or expanding the kind of exceptions that exist on these bans. So you have very heated debates going on right now in Utah and Tennessee and in several states around, you know, should we add more exceptions because there are some Republican lawmakers who are looking at these really tragic stories that are trickling out and saying, “This isn’t what we intended when we voted for this ban. Let’s go back and revisit.” Whether exceptions even work when they are on the books is another question that we can discuss. I mean, we have seen them not be effective in other states and people not able to navigate them.

Rovner: We’ve seen a lot of these stories about women whose water broke early and at what point is it threatening her life? How close to death does she have to be before doctors can step in? I mean, we’ve seen four or five of these. It’s not like they’re one-offs. The other story this week is from the Daily Beast. It’s about a 28-year-old Tennessee woman whose fetus had anomalies with its heart, brain, and kidneys. That woman also had to leave the state at her own expense to protect her own health. Is there a point where anti-abortion forces might realize they are actually deterring women who want babies from getting pregnant for fear of complications that they won’t be able to get treated?

Ollstein: Most of the pushback I’ve seen from anti-abortion groups, they claim that the state laws are fine and that doctors are misinterpreting them. And there is a semantic tug of war going on right now where anti-abortion groups are trying to argue that intervening in a medical emergency shouldn’t even count as an abortion. Doctors argue, no, it is an abortion. It’s the same procedure medically, and thus we are afraid to do it under the current law. And the anti-abortion groups are saying, “Oh, no, you’re saying that in bad faith; that doesn’t count as an abortion. An abortion is when it’s intended to kill the fetus.” So you’re having this challenging tug of war, and it’s not really clear what states are going to do. There’s a lot of state bills on this making their way through legislatures right now.

Rovner: And doctors and patients are caught in the middle. Well, finally this week, Eli Lilly announced it would lower, in some cases dramatically, the list prices for some of its insulin products. You may remember that, last year, Democrats in Congress passed a $35-per-month cap for Medicare beneficiaries but couldn’t get those last few votes to apply the cap to the rest of the population. Lilly is getting very good press. Its stock price went up, even though it’s not really capping all the out-of-pocket costs for insulin for everybody. But I’m guessing they’re not doing this out of the goodness of their drugmaking heart, right, Rachel?

Cohrs: Probably not. Even though there’s a quote from their CEO that implied that that was the case. I think there was one drug pricing expert at West Health Policy Center, Sean Dickson, who is very sharp on these issues, knows the programs well. And he pointed out that there’s a new policy going into effect in Medicaid next year, and it’s really, really wonky and complicated. But I’ll do my best to try to explain that, generally, in the Medicare program, rebates are capped, or they have been historically, at the price of the drug. So you can’t charge a drugmaker a rebate that’s higher than the cost. But …

Rovner: That would make sense.

Cohrs: Right. But that math can get kind of wonky when there are really high drug price increases and then that math gets really messed up. But Congress, I want to say it was in 2021, tweaked this policy to discourage those big price increases. And they said, you know what? We’re going to raise the rebate cap in Medicaid, which means that, drugmakers, if you are taking really big price increases, you may have to pay us every time someone on Medicaid fills those prescriptions. And I think people thought about insulin right away as a drug that has these really high rebates already and could be a candidate disproportionately impacted by this policy. So I thought that was an interesting point that Sean made about the timing of this. That change is supposed to go into effect early next year. So this could, in theory, save Lilly a lot of money in the Medicaid program because we don’t know exactly what their net prices were before.

Rovner: But this is very convenient.

Cohrs: It’s convenient. And there’s a chance that they’re not really losing any money right now, depending on how their contracts work with insurers. So I think, yeah, there is definitely a possibility for some ulterior motives here.

Rovner: And plus, the thing that I learned this week that I hadn’t known before is that there are starting to be some generic competition. The three big insulin makers, which are Lilly, Sanofi, and Novo Nordisk, may actually not become the, almost, the only insulin maker. So it’s probably in Lilly’s interest to step forward now. And, you know, they’re reducing the prices on their most popular insulins, but not necessarily their most expensive insulin. So I think there’s still money to be made in this segment. But they sure did get, you know, I watched all the stories come across. It’s, like, it’s all, oh, look at this great thing that Lilly has done and that everything’s going to be cheap. And it’s, like, not quite. But …

Cohrs: But it is different. It’s a big step. And I think …

Rovner: It is. It is.

Cohrs: Somebody has to go first in breaking this cycle. And I think it will be interesting to see how that plays out for them and whether the other two companies do follow suit. Sen. Bernie Sanders asked them to and said, you know, why don’t you just all do the same thing and lower prices on more products? So, yeah, we’ll see how it plays out.

Weber: Day to day, I mean, that’s a huge difference for people. I mean, that is a lot of money. That is a big deal. So, I mean, you know, no matter what the motivation, at the end of the day, I think the American public will be much happier with having to pay a lot less for insulin.

Rovner: Yeah, I’m just saying that not everybody who takes insulin is going to pay a lot less for insulin.

Weber: Right. Which is very fair, very fair.

Rovner: But many more people than before, which is, I think, why it got lauded by everybody. Although I will … I wrote in my notes, please, someone mention Josh Hawley taking credit and calling for legislation. Sen. Hawley from Missouri, who voted against extending the $35 cap, as all Republicans did, to the rest of the population, put out a tweet yesterday that was, like, this is a great thing and now we should have, you know, legislation to follow up. And I’m like: OK.

Cohrs: You’ll have to check on that. I actually think Hawley may have voted for it.

Rovner: Oh, a-ha. All right.

Cohrs: There were a few Republicans.

Rovner: Thank you.

Cohrs: It’s not enough, though.

Rovner: Yeah, I remember that they couldn’t get those last few votes. Yes, I think [Sen. Joe] Manchin voted against. He was the one, the last Democrat they couldn’t get right. That’s why they ended up dropping …

Cohrs: Uh, it had to be a 60-vote threshold, so …

Rovner: Oh, that’s right.

Cohrs: Yeah.

Rovner: All right. Good. Thank you. Good point, Rachel. All right. Well, that is the news for this week. Now it is time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at khn.org and in our show notes on your phone or other mobile device. Alice, why don’t you go first this week?

Ollstein: Yeah. So I did the incredible New York Times investigation by Hannah Dreier on child labor. This is about undocumented, unaccompanied migrant children who are coming to the U.S. And the reason I’m bringing it up on our podcast is there is a health angle. So HHS [the Department of Health and Human Services], their Office of Refugee Resettlement has jurisdiction over these kids’ welfare and making sure they are safe. And that is not happening right now. The system is so overwhelmed that they have been cutting corners in how they vet the sponsors that they release the kids to. Of course, we remember that there were tons of problems with these kids being detained and kept for way too long and that being a huge threat to their physical and mental health. But this is sort of the pendulum has swung too far in the opposite direction, and they’re being released to people who in some cases straight up trafficking them and in other cases just forcing them to work and drop out of school, even if it’s not a trafficking situation. And so this reporting has already had an impact. The HHS has announced all these new initiatives to try to stop this. So we’ll see if they are effective. But really moving, incredible reporting.

Rovner: Yeah, it was an incredible story. Lauren.

Weber: I’m going to shout out my former KHN colleague Brett Kelman. I loved his piece on, I guess you can’t call it a medical device because it wasn’t approved by the FDA, which is the point of the story. But this device that was supposed to fix your jaw so you didn’t have to have expensive jaw surgery. Well, what it ended up doing is it messed up all these people’s teeth and totally destroyed their mouths and left them with a bunch more medical and dental bills. And, you know, what I find interesting about the story, what I find interesting about the trend in general is the problem is, they never applied for anything with the FDA. So people were using this device, but they didn’t check, they didn’t know. And I think that speaks to the American public’s perception that devices and medical devices and things like this are safe to use. But a lot of times the FDA regulations are outdated or are not on top of this or the agency is so understaffed and not investigating that things like this slipped through the cracks. And then you have people — and it’s 10,000 patients, I believe, that have used this tool — that did not do what it is supposed to do and, in fact, injured them along the way. And I think that the FDA piece of that is really interesting. It’s something I’ve run into before looking at air cleaners and how they fit the gaps of that. And I think it’s something we’re going to continue to see as we examine how these agencies are really stacking up to the evolution of technology today.

Rovner: Yeah, capitalism is going to push everything. Rachel.

Cohrs: So my extra credit this week is actually an opinion piece, in Stat, and the headline is “Nonprofit Hospitals Are Failing Americans. Their Boards May Be a Reason Why.” It was written by Sanjay Kishore and Suhas Gondi. I think the part that really stood out to me is they analyzed the backgrounds and makeups of hospital boards, especially nonprofit hospitals. I think they analyzed like 20 large facilities. And the statistic that really surprised me was that, I think, 44% of those board members came from the financial sector representing investment funds, real estate, and other entities. Less than 15% were health care workers, 13% were physicians, and less than 1% were nurses. And, you know, I’ve spent a lot of time and we’ve spent a lot of time thinking about just how nonprofit hospitals are operating as businesses. And I think a lot of other publications have done great work as well making that point. But I think this is just a stark statistic that shows these boards that are supposed to be holding these organizations accountable are thinking about the bottom line, because that’s what the financial services sector is all about, and that there’s so much disproportionately less clinical representation. So obviously hospitals need admin sides to run, and they are businesses, and a lot of them don’t have very large margins. But the statistics just really surprised me as to the balance there.

Rovner: Yeah, I felt like this is one, you know, we’ve all been sort of enmeshed in this, you know, what are we going to do about the nonprofit hospitals that are not actually acting as charitable institutions? But I think the boards had been something that I had not seen anybody else look at until now. So it’s a really interesting piece. All right. Well, my story this week is the other big investigation from The New York Times. It’s called “A Drug Company Exploited a Safety Requirement to Make Money,” by Rebecca Robbins. And it’s about those same risk-mitigation rules from the FDA that are at the heart of those abortion drug lawsuits we talked about a few minutes ago. Except in this case, the drug company in question, Jazz Pharmaceuticals, somehow patented its risk-mitigation strategy as the distribution center — it’s actually called the REMS [Risk Evaluation and Mitigation Strategies] — which is managed to fend off generic competition for the company’s narcolepsy drug. It had also had a response already. It has produced a bipartisan bill in the Senate to close the loophole — but [I’ll] never underestimate the creativity of drugmakers when it comes to protecting their profit. It’s quite a story. OK. That’s our show for this week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our ever-patient producer, Francis Ying. Also, as always, you can email us your comments or questions. We’re at whatthehealth — all one word — at kff.org. Or you can tweet me. I’m @jrovner. Alice?

Ollstein: @AliceOllstein

Rovner: Rachel.

Cohrs: @rachelcohrs

Rovner: Lauren.

Weber: @LaurenWeberHP

Rovner: We will be back in your feed next week. In the meantime, be healthy.

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

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

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

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

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Sarah Karlin-Smith
Pink Sheet

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Read Sarah's stories

Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Read Joanne's stories

Rachel Roubein
The Washington Post

@rachel_roubein

Read Rachel's stories

Among the takeaways from this week’s episode:

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

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

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

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

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

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

Also mentioned in this week’s podcast:

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

click to open the transcript

Transcript: Senators Have Mental Health Crises, Too

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

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

Rachel Roubein: Hi. Thanks for having me.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, Julie.

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

Joanne Kenen: Hi, everybody.

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

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

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

Rovner: I think it was a sibling, yeah.

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

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

Kenen: They were a very unlikely couple.

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

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

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

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

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

Kenen: Or younger.

Rovner: Or younger, yeah.

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

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

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

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

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

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

Kenen: That might be a sign of mental health.

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

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

Rovner: I think he had lymphoma. Yeah.

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

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

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

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

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

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

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

Rovner: Always Grandma.

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

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

Kenen: Yeah, he blew a gasket.

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

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

Rovner: To change payments for Medicare Advantage.

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: And doctors’ rights to provide it.

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

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

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

Rovner: If only we could.

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

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

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

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

Roubein: Yes, Charlie Baker.

Rovner: If they were still … Charlie Baker.

Roubein: Sununu.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kenen: @JoanneKenen

Rovner: Rachel.

Roubein: @rachel_roubein

Rovner: Sarah.

Karlin-Smith: @SarahKarlin

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

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