For decades, rates of the sexually transmitted infection were low. But the Hamilton County Health Department in Chattanooga — a midsize city surrounded by national forests and nestled into the Appalachian foothills of Tennessee — was seeing several syphilis patients a day, Miller said. A nurse who had worked at the clinic for decades told Miller the wave of patients was a radical change from the norm.

What Miller observed in Chattanooga is reflective of a trend that is raising alarm bells for health departments across the country.

Nationwide, syphilis rates are at a 70-year high. The Centers for Disease Control and Prevention said Jan. 30 that 207,255 cases were reported in 2022, continuing a steep increase over five years. Between 2018 and 2022, syphilis rates rose about 80%. The epidemic of sexually transmitted infections — especially syphilis — is “out of control,” said the National Coalition of STD Directors.

The surge has been even more pronounced in Tennessee, where infection rates for the first two stages of syphilis grew 86% between 2017 and 2021.

But this already difficult situation was complicated last spring by a shortage of a specific penicillin injection that is the go-to treatment for syphilis. The ongoing shortage is so severe that public health agencies have recommended that providers ration the drug — prioritizing pregnant patients, since it is the only syphilis treatment considered safe for them. Congenital syphilis, which happens when the mom spreads the disease to the fetus, can cause birth defects, miscarriages, and stillbirths.

Across the country, 3,755 cases of congenital syphilis were reported to the CDC in 2022 — that’s 10 times as high as the number a decade before, the recent data shows. Of those cases, 231 resulted in stillbirth and 51 led to infant death. The number of cases in babies swelled by 183% between 2018 and 2022.

“Lack of timely testing and adequate treatment during pregnancy contributed to 88% of cases of congenital syphilis,” said a report from the CDC released in November. “Testing and treatment gaps were present in the majority of cases across all races, ethnicities, and U.S. Census Bureau regions.”

Hamilton County’s syphilis rates have mirrored the national trend, with an increase in cases for all groups, including infants.

In November, the maternal and infant health advocacy organization March of Dimes released its annual report on states’ health outcomes. It found that, nationwide, about 15.5% of pregnant people received care beginning in the fifth month of pregnancy or later — or attended fewer than half the recommended prenatal visits. In Tennessee, the rate was even worse, 17.4%.

But Miller said even those who attend every recommended appointment can run into problems because providers are required to test for syphilis only at the beginning of a pregnancy. The idea is that if you test a few weeks before birth, there is time to treat the infection.

However, that recommendation hinges on whether the provider suspects the patient was exposed to the bacterium that causes syphilis, which may not be obvious for people who say their relationships are monogamous.

“What we found is, a lot of times their partner was not as monogamous, and they were bringing it into the relationship,” Miller said.

Even if the patient tested negative initially, they may have contracted syphilis later in pregnancy, when testing for the disease is not routine, he said.

Two antibiotics are used to treat syphilis, the injectable penicillin and an oral drug called doxycycline.

Patients allergic to penicillin are often prescribed the oral antibiotic. But the World Health Organization strongly advises pregnant patients to avoid doxycycline because it can cause severe bone and teeth deformities in the infant.

As a result, pregnant syphilis patients are often given penicillin, even when they’re allergic, using a technique called desensitization, said Mark Turrentine, a Houston OB-GYN. Patients are given low doses in a hospital setting to help their bodies get used to the drug and to check for a severe reaction. The penicillin shot is a one-and-done technique, unlike an antibiotic, which requires sticking to a two-week regimen.

“It’s tough to take a medication for a long period of time,” Turrentine said. The single injection can provide patients and their clinicians peace of mind. “If they don’t come back for whatever reason, you’re not worried about it,” he said.

The Metro Public Health Department in Nashville, Tennessee, began giving all nonpregnant adults with syphilis the oral antibiotic in July, said Laura Varnier, nursing and clinical director.

Turrentine said he started seeing advisories about the injectable penicillin shortage in April, around the time the antibiotic amoxicillin became difficult to find and physicians were using penicillin as a substitute, potentially precipitating the shortage, he said.

The rise in syphilis has created demand for the injection that manufacturer Pfizer can’t keep up with, according to the American Society of Health-System Pharmacists. “There is insufficient supply for usual ordering,” the ASHP said in a memo.

Even though penicillin has been around a long time, manufacturing it is difficult, largely because so many people are allergic, said Erin Fox, associate chief pharmacy officer for the University of Utah health system and an adjunct professor at the university, who studies drug shortages.

“That means you can’t make other drugs on that manufacturing line,” she said. Only major manufacturers like Pfizer have the resources to build and operate such a specialized, cordoned-off facility. “It’s not necessarily efficient — or necessarily profitable,” Fox said.

In a statement, Pfizer confirmed the amoxicillin shortage and surge in syphilis increased demand for injectable penicillin by about 70%. Representatives said the company invested $38 million in the facility that produces this form of penicillin, hiring more staff and expanding the production line.

“This ramp up will take some time to be felt in the market, as product cycle time is 3-6 months from when product is manufactured to when it is available to be released to customers,” the statement reads. The company estimated the shortage would be significantly alleviated by spring.

In the meantime, Miller said, his clinic in Chattanooga is continuing to strategize. Each dose of injectable penicillin can cost hundreds of dollars. Plus, it has to be placed in cold storage, and it expires after 48 months.

Even with the dramatic increase in cases, syphilis is still relatively rare. More than 7 million people live in Tennessee, and in 2019, providers statewide reported 683 cases of syphilis.

Health departments like Miller’s treat the bulk of syphilis patients. Many patients are sent by their provider to the health department, which works with contact tracers to identify and notify sexual partners who might be affected and tests patients for other sexually transmitted infections, including HIV.

“When you diagnose in the office, think of it as just seeing the tip of the iceberg,” Miller said. “You need a team of individuals to be able to explore and look at the rest of the iceberg.”

This story is part of a partnership that includes WPLN, NPR, and KFF Health News.

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

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

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

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

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

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

Panelists

Alice Miranda Ollstein
Politico

@AliceOllstein

Read Alice's stories.

Anna Edney
Bloomberg

@annaedney

Read Anna's stories.

Jessie Hellmann
CQ Roll Call

@jessiehellmann

Read Jessie's stories.

Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

Also mentioned on this week’s podcast:

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

click to open the transcript

Transcript: Health Enters the Presidential Race

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

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

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 25, at 10 a.m. As always, news happens fast, and things might’ve changed by the time you hear this. So here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Good morning.

Rovner: Jessie Hellmann of CQ Roll Call.

Jessie Hellmann: Hi there.

Rovner: And Anna Edney of Bloomberg News.

Anna Edney: Hello.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Largely thanks to Trump.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Somers: My pleasure. Thank you for having me.

Rovner: We are back, and it’s time for our extra-credit segment. That’s when we each recommend a story we read this week we think you should read, too. As always, don’t worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Jessie, you were the first to join in this week. Why don’t you tell us about your extra credit?

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

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

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

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

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

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

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

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

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

Edney: Mostly just on Threads, so @anna_edneyreports.

Rovner: Alice?

Ollstein: @AliceOllstein.

Rovner: Jessie.

Hellmann: @jessiehellmann on Twitter.

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

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Francis hotel and its surrounds to meet with cash-hungry executives from biotech and other health care companies. After a few years of pandemic slack, the 2024 J.P. Morgan Healthcare Conference regained its full vigor, drawing 8,304 attendees in early January to talk science, medicine, and, especially, money.

1. Artificial Intelligence: Revolutionary or Not?

Of the 624 companies that pitched at the four-day conference, the biggest overflow crowd may have belonged to Nvidia, which unlike the others isn’t a health care company. Nvidia makes the silicon chips whose computing power, when paired with ginormous catalogs of genes, proteins, chemical sequences, and other data, will “revolutionize” drug-making, according to Kimberly Powell, the company’s vice president of health care. Soon, she said, computers will customize drugs as “health care becomes a technology industry.” One might think that such advances could save money, but Powell’s emphasis was on their potential for wealth creation. “The world’s first trillion-dollar drug company is out there somewhere,” she dreamily opined.

Some health care systems are also hyping AI. The Mayo Clinic, for example, highlighted AI’s capacity to improve the accuracy of patient diagnoses. The nonprofit hospital system presented an electrocardiogram algorithm that can predict atrial fibrillation three months before an official diagnosis; another Mayo AI model can detect pancreatic cancer on scans earlier than a provider could, said Matthew Callstrom, chair of radiology at the Mayo Clinic in Rochester, Minnesota.

No one really knows how far — or where — AI will take health care, but Nvidia’s recently announced $100 million deal with Amgen, which has access to 500 million human genomes, made some conference attendees uneasy. If Big Pharma can discover its own drugs, “biotech will disappear,” said Sherif Hanala of Seqens, a contract drug manufacturing company, during a lunch-table chat with KFF Health News and others. Others shrugged off that notion. The first AI algorithms beat clinicians at analyzing radiological scans in 2014. But since that year, “I haven’t seen a single AI company partner with pharma and complete a phase I human clinical trial,” said Alex Zhavoronkov, founder and CEO of Insilico Medicine — one of the companies using AI to do drug development. “Biology is hard.”

2. Weight Loss Pill Profits and Doubts

With predictions of a $100 billion annual market for GLP-1 agonists, the new class of weight loss drugs, many investors were asking their favorite biotech entrepreneurs whether they had a new Ozempic or Mounjaro in the wings this year, Zhavoronkov noted. In response, he opened his parlays with investors by saying, “I have a very cool product that helps you lose weight and gain muscle.” Then he would hand the person a pair of Insilico Medicine-embossed bicycle racing gloves.

More conventional discussions about the GLP-1s focused on how insurance will cover the current $13,000 annual cost for the estimated 40% of Americans who are obese and might want to go on the drugs. Sarah Emond, president of the Institute for Clinical and Economic Review, which calculates the cost and effectiveness of medical treatments, said that in the United Kingdom the National Health Service began paying in 2022 for obese patients to receive two years of semaglutide — something neither Medicare nor many insurers are covering in the U.S. even now.

But studies show people who go off the drugs typically regain two-thirds of what they lose, said Diana Thiara, medical director for the University of California-San Francisco weight management program. Recent research shows that the use of these drugs for three years reduces the risk of death, heart attack, and stroke in non-diabetic overweight patients. To do right by them, the U.S. health care system will have to reckon with the need for long-term use, she said. “I’ve never heard an insurer say, ‘After two years of treating this diabetes, I hope you’re finished,’” she said. “Is there a bias against those with obesity?”

3. Spotlight on Tax-Exempt Hospitals

Nonprofit hospitals showed off their investment appeal at the conference. Fifteen health systems representing major players across the country touted their value and the audience was intrigued: When headliners like the Mayo Clinic and the Cleveland Clinic took the stage, chairs were filled, and late arrivals crowded in the back of the room.

These hospitals, which are supposed to provide community benefits in exchange for not paying taxes, were eager to demonstrate financial stability and showcase money-making mechanisms besides patient care — they call it “revenue diversification.” PowerPoints skimmed through recent operating losses and lingered on the hospital systems’ vast cash reserves, expansion plans, and for-profit partnerships to commercialize research discoveries.

At Mass General Brigham, such research has led to the development of 36 drugs currently in clinical trials, according to the hospital’s presentation. The Boston-based health system, which has $4 billion in committed research funding, said its findings have led to the formation of more than 300 companies in the past decade.

Hospital executives thanked existing bondholders and welcomed new investors.

“For those of you who hold our debt, taxable and tax-exempt, thank you,” John Mordach, chief financial officer of Jefferson Health, a health system in Pennsylvania and New Jersey. “For those who don’t, I think we’re a great, undervalued investment, and we get a great return.”

Other nonprofit hospitals talked up institutes to draw new patients and expand into lucrative territories. Sutter Health, based in California, said it plans to add 30 facilities in attractive markets across Northern California in the next three years. It expanded to the Central Coast in October after acquiring the Sansum Clinic. 

4. Money From New — And Old — Treatments for Autoimmune Disease

Autoimmunity drugs, which earn the industry $200 billion globally each year, were another hot theme, with various companies talking up development programs aimed at using current cancer drug platforms to create remedies for conditions like lupus and rheumatoid arthritis. AbbVie, which has led the sector with its $200 billion Humira, the world’s best-selling drug, had pride of place at the conference with a presentation in the hotel’s 10,000-square-foot Grand Ballroom.

President Robert Michael crowed about the company’s newer autoimmune drugs, Skyrizi and Rinvoq, and bragged that sales of two-decades-old Humira were going “better than anticipated.” Although nine biosimilar — essentially, generic — versions of the drug, adalimumab, entered the market last year, AbbVie expects to earn more than $7 billion on Humira this year since the “vast majority” of patients will remain on the market leader.

In its own presentation, biosimilar-maker Coherus BioSciences conceded that sales of Yusimry, its Humira knockoff listed at one-seventh the price of the original, would be flat until 2025, when Medicare changes take effect that could push health plans toward using cheaper drugs.

Biosimilars could save the U.S. health care system $100 billion a year, said Stefan Glombitza, CEO of Munich-based Formycon, another biosimilar-maker, but there are challenges since each biosimilar costs $150 million to $250 million to develop. Seeing nine companies enter the market to challenge Humira “was shocking,” he said. “I don’t think this will happen again.”

This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation. 

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

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

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

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

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

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Joanne Kenen
Johns Hopkins Bloomberg School of Public Health and Politico

@JoanneKenen

Rachel Cohrs
Stat News

@rachelcohrs

Read Rachel's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

Also mentioned on this week’s podcast:

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

click to open the transcript

Transcript: The Supreme Court vs. the Bureaucracy

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

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

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

Lauren Weber: Hello, hello.

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

Joanne Kenen: Hey, everybody.

Rovner: And Rachel Cohrs of Stat News.

Rachel Cohrs: Good morning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Lauren?

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

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

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

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

Kenen: Yeah, but it had a long tail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: There was a medical examiner report that said …

Kenen: Yes.

Rovner: … this was a stillborn.

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

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

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

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

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

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

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

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

Rovner: Doing it for the bottom line.

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

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

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

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

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

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

Darius Tahir: Thanks for having me.

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

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

Rovner: Which seems typical for …

Tahir: Very typical.

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: What eventually happened with the bill?

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

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

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

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

Tahir: Thank you.

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

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

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

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

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

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

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

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

Rovner: Lauren?

Weber: Still on X @LaurenWeberHP.

Rovner: Rachel?

Cohrs: Still on X, @rachelcohrs.

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

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Kevin Stansbury, CEO del Lincoln Community Hospital de Hugo, un pueblo de 800 habitantes en Colorado, se enfrenta a un clásico dilema: podría aumentar los ingresos de su hospital rural ofreciendo prótesis de cadera y operaciones de hombro, pero el centro de salud, con 64 años de antigüedad, necesita más dinero para poder ampliar su quirófano y realizar esas intervenciones.

“Tengo un cirujano dispuesto a hacerlo; pero mis instalaciones no son lo bastante grandes”, dijo Stansbury. “Y en mi hospital no puedo hacer servicios urgentes como obstetricia porque mi instalación no cumple con el código”.

Además de asegurar ingresos adicionales para el hospital, una ampliación de este tipo podría evitar que los habitantes de la zona tengan que conducir 100 millas hasta Denver para someterse a operaciones ortopédicas o dar a luz.

Los hospitales rurales a lo largo del país se enfrentan a un dilema similar.

El aumento de los costos, en medio de reducciones de los pagos de las aseguradoras, dificulta que los pequeños hospitales obtengan financiación para grandes renovaciones. Además, la elevada inflación y el aumento de las tasas de interés, como consecuencia de la pandemia, complica la obtención de préstamos u otros tipos de financiación para modernizar las instalaciones y adaptarlas a los estándares de la atención médica en constante cambio.

“La mayoría trabajamos con márgenes muy bajos, si es que tenemos alguno”, afirmó Stansbury. “Así que nos cuesta encontrar el dinero”.

El envejecimiento de las infraestructuras hospitalarias, sobre todo en las zonas rurales, es un problema que va en aumento. Los datos sobre la edad de los hospitales son difíciles de conseguir, porque se amplían, modernizan y remodelan diferentes partes de sus instalaciones a lo largo del tiempo.

Un análisis de 2017 de la American Society for Health Care Engineering, que forma parte de la American Hospital Association, descubrió que la edad media de los hospitales en Estados Unidos aumentó de 8,6 años en 1994 a 11,5 años en 2015. Ese número probablemente ha crecido, según conocedores de la industria, ya que muchos hospitales retrasaron los proyectos de mejora, particularmente durante la pandemia.

Una investigación publicada en 2021 por la empresa de planificación de capital Facility Health Inc, ahora llamada Brightly, reportó que los centros de salud estadounidenses habían aplazado un 41% de su mantenimiento y necesitarían $243,000 millones para ponerse al día.

Los hospitales rurales no disponen de los recursos de los grandes hospitales, sobre todo los que forman parte de cadenas hospitalarias, para financiar ampliaciones multimillonarias.

La mayoría de los hospitales rurales en funciones hoy se abrieron con fondos del Hill-Burton Act, una ley aprobada por el Congreso en 1946. Este programa se integró en la Ley de Servicios de Salud Pública en la década de 1970 y, en 1997, había financiado la construcción de casi 7,000 hospitales y clínicas. Ahora, muchos de esos edificios, sobre todo los rurales, necesitan mejoras urgentes.

Stansbury, que también preside el consejo de administración de la Colorado Hospital Association, señaló que al menos media docena de hospitales rurales del estado necesitan importantes inversiones de capital.

Harold Miller, presidente y CEO del Center for Healthcare Quality and Payment Reform, un think tank de Pittsburgh, afirmó que el principal problema de los pequeños hospitales rurales es que los seguros privados ya no cubren el costo total de la asistencia. Según Miller, Medicare Advantage, un programa por el que Medicare paga a planes privados para dar cobertura a personas mayores y discapacitadas, es uno de los principales responsables del problema.

“Básicamente, apartan a los pacientes de lo que puede ser el mejor pagador que tiene un pequeño hospital, y se los llevan a un plan privado, que no paga de la misma manera que Medicare tradicional y termina utilizando una variedad de técnicas para rechazar los reclamos”, explicó Miller.

Además, los hospitales rurales deben dotar sus servicios de urgencias de médicos las 24 horas del día, pero sólo cobran si hay pacientes.

Mientras tanto, los costos laborales desde el fin de la pandemia han aumentado, y la inflación ha disparado el precio de los suministros. Es probable que estas dificultades financieras obliguen a cerrar más hospitales rurales.

Los cierres de hospitales se redujeron durante la pandemia, de un récord de 18 cierres en 2020 a un total de ocho cierres en 2021 y 2022, según el Centro Cecil G. Sheps para la Investigación de Servicios de Salud de la Universidad de Carolina del Norte-Chapel Hill, porque los fondos de ayuda de emergencia los mantuvieron abiertos. Pero ese soporte vital ha terminado, y al menos nueve más cerraron en 2023. Según Miller, los cierres han vuelto a los niveles anteriores a la pandemia.

Esto hace temer que algunos hospitales inviertan en nuevas instalaciones y acaben cerrando de todos modos. Miller aseguró que sólo una pequeña parte de los hospitales rurales conseguiría una mejora significativa en sus finanzas agregando nuevos servicios.

Legisladores han intentado ayudar. California, por ejemplo, cuenta con programas de préstamos a bajo o ningún interés en los que pueden participar los hospitales rurales, y representantes de los hospitales le han pedido a los legisladores de Colorado que aprueben ayudas similares.

A nivel federal, la legisladora Yadira Caraveo, demócrata de Colorado, ha presentado el proyecto de ley bipartidista Rural Health Care Facilities Revitalization Act, que ayudaría a los hospitales rurales a obtener más fondos a través del Departamento de Agricultura de Estados Unidos (USDA).

El USDA ha sido uno de los mayores financiadores del desarrollo rural a través de los Community Facilities Programs, proporcionando más de $3 mil millones en préstamos al año. En 2019, la mitad de los más de $10 mil millones en préstamos pendientes a través del programa ayudaron a instalaciones de salud.

“De lo contrario, los centros tendrían que recurrir a prestamistas privados”, dijo Carrie Cochran-McClain, directora de la National Rural Health Association.

Los hospitales rurales pueden no resultar muy atractivos para los prestamistas privados debido a sus limitaciones financieras, y por lo tanto tendrían que pagar tasas de interés más altas o cumplir requisitos adicionales para obtener esos préstamos, agregó.

El proyecto de ley de Caraveo también permitiría a los hospitales, que ya tienen préstamos, refinanciarlos a tipos de interés más bajos, y cubriría más categorías de equipos médicos, como los dispositivos y la tecnología utilizados para la telesalud.

“Tenemos que mantener estos centros abiertos, no sólo para urgencias, sino también para dar a luz o para una consulta de cardiología”, explicó Caraveo, que también es pediatra. “No deberías tener que conducir dos o tres horas para tener esos servicios”.

Kristin Juliar, consultora de recursos de capital de la National Organization of State Offices of Rural Health, ha estudiado los retos a los que se enfrentan los hospitales rurales a la hora de pedir dinero prestado y planificar grandes proyectos.

“Intentan hacer esto mientras realizan su trabajo habitual dirigiendo un hospital”, dijo Juliar. “Por ejemplo, muchas veces, cuando surgen oportunidades de financiación, la agenda puede ser demasiado ajustada para que puedan desarrollar un proyecto”.

Parte de la financiación depende de que el hospital consiga fondos de contrapartida, lo que puede resultar difícil en comunidades rurales de bajos recursos. Y la mayoría de los proyectos exigen que los hospitales reúnan fondos de varias fuentes, lo que suma complejidad.

Y como la elaboración de estos proyectos suele llevar mucho tiempo, los CEO o los miembros del consejo de administración de los hospitales rurales a veces dejan el cargo antes de que se finalicen.

“Te pones manos a la obra y luego desaparecen personas clave, y entonces te sientes como si empezaras de nuevo”, explicó Juliar.

El hospital de Hugo abrió sus puertas en 1959, por iniciativa de los soldados que regresaban de la Segunda Guerra Mundial al condado de Lincoln, en las llanuras del este de Colorado. Donaron dinero, materiales, terrenos y mano de obra para construirlo. El hospital ha agregado cuatro clínicas de medicina familiar, un centro de enfermería especializada y un centro de vida asistida fuera de las instalaciones. Y atrae a especialistas de Denver y Colorado Springs.

A Stansbury le gustaría construir un nuevo hospital de aproximadamente el doble de tamaño que el actual, de 45,000 pies cuadrados. Dado que la inflación está bajando y es probable que las tasas de interés bajen este año, Stansbury espera conseguir financiación en 2024 y empezar a construir en 2025.

“El problema es que cada día que me despierto es más caro”, afirmó Stansbury.

Cuando autoridades del hospital se plantearon por primera vez la construcción de un nuevo hospital hace tres años, calcularon que el costo total del proyecto rondaría los $65 millones. Pero la inflación se disparó y ahora han subido las tasas de interés, lo que ha elevado el costo total a $75 millones.

“Si tenemos que esperar un par de años más, puede que nos acerquemos a los $80 millones”, señaló Stansbury. “Pero tenemos que hacerlo. No puedo esperar cinco años y pensar que los costos de construcción van a bajar”.

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

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

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

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

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

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Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

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

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Transcript: All About the (Government) Funding

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

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

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 11, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this, so here we go. We are joined today via video conference by Alice Miranda Ollstein of Politico.

Alice Miranda Ollstein: Hello.

Rovner: Sarah Karlin-Smith of the Pink Sheet.

Sarah Karlin-Smith: Hi, everybody.

Rovner: And Tami Luhby of CNN.

Tami Luhby: Good morning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Luhby: Transparency. Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Luhby: If it all happens at all.

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

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

Rovner: Kind of like drug importation.

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

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

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

Rovner: We’re 10 years into the ACA!

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

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

Luhby: Yeah.

Rovner: … they are still working on it.

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

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

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

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

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

Ehrenfeld: Sure.

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

Ehrenfeld: We hope they’re working.

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

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

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

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

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

Ehrenfeld: It’s here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ehrenfeld: I’m real, by the way.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Tami?

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

Rovner: There you go. Alice.

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

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

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

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

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

Panelists

Victoria Knight
Axios

@victoriaregisk

Read Victoria's stories.

Shefali Luthra
The 19th

@shefalil

Read Shefali's stories.

Lauren Weber
The Washington Post

@LaurenWeberHP

Read Lauren's stories.

Among the takeaways from this week’s episode:

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

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

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

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

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

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

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

Also mentioned in this week’s episode:

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

click to open the transcript

Transcript: New Year, Same Abortion Debate

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

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

Julie Rovner: Hello, Happy New Year, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News. And I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 4, at 10 a.m. As always, news happens fast, and things might have changed by the time you hear this, so here we go. Today we are joined via video conference by Lauren Weber of The Washington Post.

Lauren Weber: Hello, hello.

Rovner: Victoria Knight of Axios News.

Victoria Knight: Hey, everyone.

Rovner: And Shefali Luthra of The 19th.

Shefali Luthra: Hello.

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

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

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

Knight: Yeah, exactly. So …

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

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

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

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

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

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

Rovner: In the House, right?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sandro Galea: Thank you for having me.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rovner: Well, Dr. Galea, thank you so much. I will do my part to keep the conversation going. I’m sure you will do yours as well.

Galea: I will. And thank you for doing the part you’re doing.

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

Luthra: Sure. My story is from Stat by Nicholas Florko. The headline is “Medical Marijuana Companies Are Using Pharma’s Sales Tactics With Little of the Same Scrutiny.” And I think this is such a smart investigation, and I’m so grateful that Nicholas wrote it. It really gets into the fact that medical marijuana is a tremendous industry now, right? It’s not just in the Colorados or the Californias or Massachusetts that you think of. It’s all over the country and it’s a huge business. And because it’s so new, it hasn’t gotten the same scrutiny in terms of how it markets its products to consumers, the relationship it has with providers, et cetera. I think this is just a really important topic, and it’s something that we should all be paying attention to as the industry continues to grow in the coming years.

Rovner: Indeed. Victoria?

Knight: Yeah. So my extra credit this week is a Politico story by Megan Messerly and Robert King titled “Georgia Offered Medicaid With a Work Requirement. Few Have Signed Up.” And so it’s talking about just the rollout of Georgia implementing a work requirement for their Medicaid program, which they did expand Medicaid, but they included a work requirement. So I thought this was just really stunning. It said through the first four months, only 1,800 people have enrolled when the governor, Brian Kemp, expected 31,000 people to sign up.

Rovner: Contrast that with North Carolina, which expanded Medicaid without the work requirement and got, like, 200,000 people to sign up.

Knight: Yeah. So that’s just a stunning number. And they’re talking about in the story there. They’re not sure why all the reasons are, but part of it is that there is a lot of paperwork involved. And so I think it was just a really interesting example. Obviously, we have seen work requirements play out before, but we haven’t seen it in a while. And so it’s interesting to see how difficult it can be for people to access Medicaid if this is put in place. And I also think it’s important to remind people that last year, in 2023, during the debt ceiling debate, Republicans did for a while talk about wanting to implement work requirements in Medicaid again. And so, if this was something that they put into place, it would mean probably a lot of people would drop off the rolls. So it’s an idea that resurfaces. So just important to remember that.

Rovner: Indeed. Lauren.

Weber: I was obsessed with Greg Jaffe story from The Washington Post titled “Can the Exhausted, Angry People of Ottawa County Learn to Live Together?” And it’s this incredible portrait of this Michigan county where the county public health officer, Adeline Hambley, has come under tremendous pressure and threat from the conservative county board. And this is a story we have seen play out in different iterations all around the country in the wake of covid. It’s the “we don’t believe in masks, we don’t believe in shutdowns” versus the county public health folks who are trying to follow the science and how does that play out at a people level, which Greg just does a fantastic way of showing. And it’s interesting, the board was so fed up with her and making such political statements that they offered her $4 million to quit. Now this fell apart because the county doesn’t seem to have the money that would affect them, et cetera.

But it just goes to show how deep the divisions are between what used to be a very non-politicized, normal government job of being a public health officer who keeps your water safe and tries to keep you from catching bad diseases at restaurants, to the post-covid era, where [they’re] just absolutely vilified and hated, really, it seems in some of these comments in the story — so much so that they would be paid this much money to quit. So I think this speaks a lot to the tension that we see in America around public health today, and I really recommend everybody to give it a read.

Rovner: Yeah, it’s a really remarkable story. Well, my extra credit this week is from our podcast pal Alice [Miranda] Ollstein, along with her colleagues Jessica Piper and Madison Fernandez at Politico. It’s called Why Democrats Can’t Rely on Abortion Ballot Initiatives to Help Them Win.” And it’s a warning for Democrats not to get too smug about the popularity and success of abortion rights ballot measures around the country. They dug into the numbers and found that in many of those states, the very same voters who supported the abortion rights measures also turned around and voted for Republican candidates. As usual, in politics, things are rarely as simple as they seem.

All right, that is our show for this first week of 2024. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review; that helps other people find us, too. Special thanks, as always, to our technical guru, Francis Ying, and our editor, my fellow Wolverine, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, or @julierovner at Bluesky and @julie.rovner at Threads. Shefali, where are you these days?

Luthra: I am @shefalil on X and Blue Sky, and then on Threads, I’m @shefali.luthra.

Rovner: Victoria.

Knight: I’m @victoriaregisk on X and Threads.

Luthra: Lauren.

Weber: And then I’m @LaurenWeberHP on X and clearly still need to work on my social media game.

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

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In this episode of “An Arm and a Leg,” Dan Weissmann goes toe-to-toe with Scott Purcell, CEO of ACA International, a trade association for the collection industry, on the effects these lawsuits have on patients.

With help from The Baltimore Banner and Scripps News, Weissmann pulls back the curtain on hospital bill lawsuits in three states — Maryland, Wisconsin, and New York — and discovers some good news for a change.

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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: ‘An Arm and a Leg’: When Hospitals Sue Patients (Part 2)

Note: “An Arm and a Leg” uses speech-recognition software to generate transcripts, which may contain errors. Please use the transcript as a tool but check the corresponding audio before quoting the podcast.

Dan: Hey there – So, this is part two of a two-part story. If you missed part one, or just want a refresher, here’s three quick things: 

First: Some hospitals – definitely not all – sue a LOT of patients over unpaid bills. Hundreds or even thousands every year. 

Second: There’s very little money in it for these hospitals. When reporters and researchers add up the total amounts they’re suing for, it looks tiny compared to, say, their annual surplus. Or what they pay executives. Tiny.

Third: There’s data showing a LOT of the people being sued are … pretty hard up already. 

That a lot of them would qualify for charity care under the hospitals’ own financial-assistance policies.

In fact, as we reported last time, a guy named Nick McLaughlin, who spent a decade working for a medical-bill collections agency… now runs a business telling hospitals they’d be better off – financially – writing these bills off through charity care or financial assistance programs. 

And I should point out: Nick’s not a do-good crusader. He has started a business, to help hospitals do this. And he’s staked his family’s financial future on it.

Nick: I had a good but challenging conversation with my wife. And she said, hey, so is the reason we’re not doing this full time because we’re scared the money’s not gonna come in? And I said, well as the sole provider of a family of five that’s kind of a big deal. She said, yeah, I think we should do it.

Dan: And at the end of our last episode, I asked Nick: So, why would some hospitals make the decision to sue people, if there’s no money in it? What’s behind that decision:

Nick: It’s really, I would say, philosophically based.

Dan: So, in this episode, we’ll do two things: One, we’ll try to get a peek at that philosophy – inside the heads of the people who might hold it.

And TWO: We’re gonna share some hard data about what’s going on with these lawsuits in three states. We partnered with two awesome news organizations to get this data. 

And I’m gonna tell you: we found what really looks like some good news.

And the whole inquiry really drove home ways we can help ourselves, and each other. 

Here we go.

With Scripps News and the Baltimore Banner, this is An Arm and a Leg – a show about why health care costs so freaking much, and what we can may be do about it. 

I’m Dan Weissmann. I’m a reporter, and I like a challenge. So our job on this show is to take one of the most enraging, terrifying, depressing parts of American life and bring you something entertaining, empowering, and useful.

So, let’s talk about that philosophy. You could call it a form of… not thinking too hard. Let’s start with a witness. 

These days, Ruth Lande works for a nonprofit you may have heard of – RIP Medical Debt – to get hospital bills forgiven.

But WE talked with her because she spent more than 25 years working in hospital billing, most of it at Memorial Sloan-Kettering Cancer Center. And by the way, she loved it.

Ruth Landé: In general, I think it’s good if a job has three things. It’s for a good mission. Two, it should be hard. It should be complicated so it engages your brain every day. And third, it should be with really good colleagues. And I got to tell you, working revenue cycle satisfied all three of those for me. 

Dan: And of course, during her quarter-century in the business, the question of whether or not to file lawsuits over hospital bills did come up. 

When she got a promotion. 

In her earlier role, she’d run one part of the billing department, where they never sued. Now she was taking over another part of the billing department, a bigger one, where sometimes they did. 

She says her new colleagues were aware that in her earlier position, she’d taken a no-lawsuits approach.

Ruth Landé: There was an assumption, oh yeah, Ruth won’t allow that. 

Dan: But, she told me, she didn’t want to be in conflict with her new colleagues from Day One. 

Ruth Landé: And so I said, well, I’m not going to just ban it, but you know, bring me cases. If you believe that we should be suing a person, then just bring me the case so I can review it. And they never brought a case to me ever. 

Dan: Never ever. She thinks those colleagues maybe hadn’t stopped to look at who they were suing.

Ruth Landé: When you really examine closely you see the harm. I They would have probably imagined that they’re only suing some really rich people sitting up in a mansion somewhere, not bothering to pay their bills.

You might imagine: It would be interesting to talk with someone who thinks this way – really talk with them, push them on their point of view.

And that did happen. Kind of. 

It was honestly one of the most confusing conversations I’ve ever had. It was with this guy. 

Scott Purcell: My name is Scott Purcell. I’m the CEO of ACA International.

Dan: That’s the industry association for folks in the bill-collection business. Scott was super-accommodating – got on Zoom with me within a day of my first email to him. So quickly that it wasn’t till we got on that I realized we hadn’t set a length. 

Dan: How long do I actually have you for?

Scott Purcell: How long do you need us for?

Dan: Uh, I like to talk to people for a long time, but we start with a half an hour and maybe…

Scott Purcell: um, bum bum bum. I just need to change one meeting. 

Dan: We talked for more than an hour. 

The first half-hour was one kind of frustrating. 

I’d describe our findings and findings from other people’s reports — for instance, how little money hospitals seem to gain from these lawsuits — and ask if he had data to help understand what we’re seeing, and he kept saying, effectively: 

Hey, let’s not jump to policy conclusions. How would a new policy on debt collection affect a medical office with just three doctors? 

Scott Purcell: And I would say that three person doctor office is different from one of the top 10 nonprofit health care system. Their economics are completely different. And yet we’re talking about policy positions. that impact both

Dan: And then, in retrospect I’ve figured out a spot where we really, really lost each other. I was talking about one observer’s take on why these lawsuits don’t bring in much money:

Dan: A lot of the people that end up as your defendants are effectively indigent. Um, you know, they don’t have a lot of income. They may not have W2 employment that you could garnish. They don’t have other assets you can take. So, the amount that you get is not, not what you might expect from looking at the number of cases and the number of judgments. So that was another…

Scott Purcell: If I could stop you there, I’d love to see that data. Do you know that it takes a lot of money to file a lawsuit? I can’t think. And so my lived experience, I cannot think of one instance where either the hospital or the collection agency or the attorney would choose to sue an indigent person because if they are going to have a low probability of being able to repay that that over time, why would you invest? 

Dan: What I didn’t realize then, was: when I said some people were “effectively indigent,” Scott Purcell had latched onto the word “indigent” and had a very specific image in his mind, of absolute destitution. From that point forward, anything I would say about people being sued who were hard up, who qualified for charity care, who really couldn’t pay – was gonna run through this filter. 

And: Any example I’d bring up of someone being sued who got put in an extremely tough position… was just gonna sound to him like a novel anecdote.

A half-hour in, I got pretty direct with Scott, so I asked:

Dan: How did this happen? How did it happen that we, like, got to the point where so many people are being sued over debts they can’t pay? What do you know about that?

And this is where things got really confusing to me. Because here’s how Scott responded:

Scott Purcell: Well, if you just sued somebody who can’t pay, they’re not going to pay you. So, they’re not out any money. So you made a bad business decision, but truly Dan, what is the harm they’re experiencing? The fact that they got sued and they can’t pay?

Dan: I didn’t see that coming – the idea that being sued could be “harmless”?. Here’s what I said:

My gosh. Well, I can tell you that, you know, people, by the time they’ve been sued, they’ve been getting tons of collections calls, their credit may have suffered, and they have a judgment against them that says like any money that shows up in their bank account can be seized or that, you know, the next time they get a job, their wages can be garnished. That’s pretty significant harm. 

I described to Scott the story of Liz Jurado, a woman on Long Island who says she found out, years after the fact, that she had been sued over a bill relating to the birth of one of her kids. A bill she says she thought insurance had paid. Her husband was the main breadwinner, until he got laid off. Liz took a job working for DoorDash to support the family – her first W2 paycheck – and she says that’s how she found out about the lawsuit. Because once she starts the job, she starts getting letters, saying her wages are going to be garnished. And she’s like:

Liz Jurado: What is this? Where did it come from? How could they not tell me about it until now?  I get a job and three months later, you’re coming after me. I mean, this is my family’s bread and butter.  This is horrible.

Dan: I said to Scott: That seems bad, right?

Dan: So I’m, I’m, I’m trying to give you the opportunity to respond to that point that lots of people make that. If you get sued over a debt you can’t pay, there’s harm. That’s, that’s a lot of people’s positions, and I find it fairly persuasive. How do you respond to that? 

Scott Purcell: You and I were using a hypothetical. You said somebody got sued who’s indigent. Has no money.

Dan: Do you think that doesn’t happen?

Scott Purcell: I don’t understand the business case as to why that would. 

Dan: But, like, do you think it doesn’t happen because, like, do you think the reports that show that it happens a lot are wrong? I mean, I talked to a couple, a couple months ago who got sued over a debt. I mean, their story was like, they got hit with a bunch of medical problems.

I described to him the story of Casey and Ron Gasior, who we met in our last episode. The bills for those medical adventures threw their finances completely out of whack.

Casey: We would dig little bit out of our hole, and then we’d go right back down. 

Dan: … until they were in danger of losing their house. They filed for chapter 13 bankruptcy – wrapping everything they owed into a five year payment plan. They’d just about made it through, when they got a letter from a law firm earlier this year: They were being sued over a medical bill, that had arrived just after their bankruptcy started. I was getting a little worked up. 

Dan: So, these are not hypothetical, and these are not, like, you know, these stories are just entirely consistent with the data that, that gets collected. So, when you ask me, like, what’s the harm? I want to give you this opportunity to say, like, you sure that’s your position?

Scott Purcell: So, first of all, that was on a different, that was a different question. I made an assumption of that story that they were indigent now and would be indigent – I was saying, I don’t know why that decision got made if indeed that person, um, is indigent, why a particular, um, provider has whatever parameters they’ve set for their lawsuit program. I can’t speak to the business decisions they’re making. I can speak to, societally, what do we expect people to pay and not pay? 

Dan: With the case of the couple in Wisconsin, if they couldn’t pay ever, if their chapter 13 hadn’t worked out, and they’d lost their house, and they’d lost their jobs, and they couldn’t pay ever, are you saying they wouldn’t be harmed?

Scott Purcell: I’m saying the answer lies in taking those stories to the table. And let’s take a look at what are the other policy changes that should be made in order to get better outcomes. So, in the situation you did outline, I am sure that individual actually went through emotional stress. But there’re safeguards throughout. 

Dan: So you’re saying you view this as a kind of exceptional case and that generally there are, from what you know, guidelines and guardrails, as you say, to prevent this sort of thing from happening.

Scott Purcell: It’s the thing I don’t have data to answer it. 

Dan: Yeah, it’s — I mean, I just need to say: It’s striking, um, that you asked — you’re, yeah, like: Where’s, where’s the harm?

Scott Purcell: I made an assumption of that story that they were indigent now and would be indigent–

Dan: Well, I guess I just don’t understand, I, I don’t really quite understand the difference. Can you explain the distinction between someone being indigent right now, being indigent forever, I don’t really get the distinction at all. And I don’t know in which case, in which case there is harm, in which case there isn’t in your view.

Scott Purcell: So, um, I wasn’t being flippant. I was taking a very extreme… um, I’m in D.C. I see homeless people now. So when I heard you say indigent, I’m thinking somebody who’s living under a bridge. They deserve to be treated with dignity and respect. I was thinking that level of indigency. You’re talking about, I think, the, the working class, and people beyond that. And up to the higher end scale is your question. And for that, my question or my answer is back to there are safeguards that should be occurring. And if those safeguards don’t occur, harm does happen. And we collectively need to look at why there are gaps in those safeguards.

Dan: So in retrospect – knowing how Scott Purcell took that word indigent – I’m a little less mystified. But the conversation still seems really… striking to me.

For one thing, there’s the idea — even if it’s not a conscious philosophy  — that some people are beyond hope, so they’re beyond harm. So morally, it wouldn’t matter if, say, you sued them.

But the other thing that strikes me is the difficulty Scott Purcell had understanding – believing – that people being really harmed is something that happens at scale. That last thing he said: “There are safeguards that should be occurring, and IF those safeguards don’t occur, harm does happen.”

That word “IF” seems to be doing a lot of work there. 

Beyond the mountains of data that folks have compiled – showing that people get sued who qualify for charity care, and that people who get sued over medical bills tend to live in neighborhoods where poverty is high – there’s the finding that’s practically a cliche: 

About four out of ten Americans don’t have enough money on hand to cover a 400 hundred dollar emergency expense. Maybe I should have explained that to Scott Purcell. 

But I just didn’t think I’d need to. He’s sitting atop a whole industry that NEEDS to know, basically, how much money people have. Since we talked, I’ve seen a report for folks in his industry – third-party collections – that goes into a lot of detail on that topic. 

Of course, third-party collections agencies are for-profit businesses. And at least for some of them, lawsuits like these are part of the business. 

So, I guess I’m starting to understand – maybe belatedly – how hard it is to get some people to reconsider business as usual. Is business as usual a philosophy?

But sometimes business as usual does change. In fact, I’m about to share some much more cheerful news with you. It’s what our partners found when we went looking for details on these hospital bill lawsuits in three states. 

Because the big surprise was in what we DIDN’T find.

That’s coming right up. 

This episode is produced in partnership with KFF Health News. That’s a nonprofit newsroom covering health care in America. Their incredible journalists win all kinds of awards every year. I’m so glad to get to work with them. 

This investigation builds directly on reporting by KFF reporters like Jay Hancock, Noam Levey and Jordan Rau. Respect. 

OK, so this whole inquiry — into why some hospitals sue so many patients who could just get charity care — started a couple of years ago. 

That’s when I spotted what looked like a clue – in a big report done by National Nurses United. It looked at 145 thousand hospital lawsuits against patients in Maryland over a ten-year period.

And in addition to documenting how little money hospitals were getting from these suits — compared to the million-dollar salaries they paid a lot of executives — 

This report also noted– just kind of by-the-way, on page 18 of a 68-page report – that a relatively small number of attorneys were filing most of these lawsuits.

Just five attorneys filed almost two-thirds of the cases.

And just one attorney filed more than 40,000 cases. 

I was like, huh! Maybe that’s a clue. 

It seems like hospitals don’t get a lot of benefit from these lawsuits. But maybe we’re looking at someone who does. We should find out more. 

Starting with the names of those lawyers, which weren’t in the report.

And I was gonna want a big update on Maryland.

That report was part of a big advocacy campaign – which really worked. 

In 2021, Maryland enacted a new law saying hospitals couldn’t sue anybody without checking to see if they qualified for free care.

Which in retrospect, may seem like an obvious requirement. Here’s Malcolm Heflin, one of the organizers who worked on the campaign.

Malcolm Heflin: It’s like reading the postscript in a Dickens novel almost. It’d be like, “Oh yeah. Hey, look, now we can’t chain children to factory machines.” Like what? Wait, what? That was legal before? 

Dan: Anyway, if that report was the “before” picture, what would “after” look like? I was gonna need help. And I got some.

Ryan Little: my name is Ryan Little and I am the data editor at the Baltimore Banner.

Dan: The Banner is a new nonprofit daily newspaper – without the paper. Data reporting is a big specialty, and Ryan is the big specialist. Pulling a LOT of Maryland courts data was already on his to-do list.

Ryan Little: And so I said, maybe there’s a way that we can make a partnership happen. And then many months later, you’ve probably regretted that, but we’ve had a good time doing it. Anyways…

Dan: No way. Are you kidding me?

Ryan’s amazing. I am so lucky to get to work with him. 

But I wanted to know about more than just Maryland. And I got lucky there too. 

Maryland’s not the only state where advocates compiled a bunch of court data to push for change. You might remember Elisabeth Benjamin in New York from our last episode. 

She’s the one who pointed out how little money is involved in these suits – for hospitals she has looked at.

Elisabeth Benjamin: They’re suing people for pennies. right. The average law suits maybe 1900 bucks. So they’re suing them for chump change, but that $1,900 is like life ruining for the patient.

Dan: She knew that because she had pulled more than 50 thousand hospital-bill lawsuits from across the state. She used that data in a series of reports that got new laws passed – like one banning wage garnishment to pay medical debts. 

And she shared a giant spreadsheet with me, which included the names of attorneys in 40 thousand cases.

And guess what? Just three law firms handled the majority of those cases. So now we knew: This wasn’t just a Maryland thing.

But we were gonna want to look somewhere else too. Someplace where no new laws had been passed. Someplace that was still a “before” picture. Someplace like Wisconsin.

I’d been getting reports from a public-interest lawyer there named Bobby Peterson. He’d been publishing some data about lawsuits, but hadn’t gotten laws passed. And he also wasn’t able to share data. I was gonna need MORE help. 

Rosie Cima: My name is Rosie Cima and I manage a data reporting team at Scripps News. I also report for them. 

Dan: YES! More data help. Scripps News came aboard as a partner, and Rosie started looking for the data we’d need in Wisconsin.

And at this point, it may be getting clearer why it has taken us more than a year to bring this story to you. Let’s just recap for a second all the moving parts we’ve got in play here:

We’ve got Ryan, pulling cases in Maryland, Rosie doing the same in Wisconsin, and me with some New York cases.

We’re looking to see what the “after” picture looks like in Maryland and New York, and we’re looking at the role of a few lawyers.

And this is where I admit: that initial hypothesis? That the lawyers were driving these lawsuits, sweet-talking hospitals to drum up business?

It didn’t really pan out. As far as I can tell, after talking with a bunch of people and looking at a bunch of reports, it doesn’t seem to work that way. 

A lot of the time, anyway, it seems like the lawyers are often freelancers. They get hired by the collection agencies.

Who get their marching orders from the hospital revenue office.

But I’m so glad we went looking, because of what we did find. 

Or, you could say, what we didn’t.

In Maryland, Ryan spent months and months and months collecting hundreds of thousands of cases, then weeks and weeks crunching the numbers. And then… 

Ryan Little: On Wednesday, September 6th, I sent this email. I find this hard to believe. But it may be that there were zero medical debt lawsuits filed by hospitals against individuals in 2022 and 2023. 

Dan: He found it hard to believe – like, it must be wrong – so he went back to try to find his mistake. That took almost a week.

Ryan Little: On Monday, September 11th, I emailed, Hey Dan, news that hospital debt collection lawsuits had ended in Maryland was wrong. It looks like the Maryland Judiciary is somehow suppressing them in case search. Either intentionally or not, I’m rewriting the code to account for this.

Dan: He thought the Maryland court system was HIDING these cases. Not only did he rewrite the code, he went to the courthouse to go hunt for whatever was missing. 

It took him another week. And then I got one more email.

Ryan Little: So on September 18th, I said, Maryland hospitals are dot, dot, dot. Basically not suing anyone for medical debt anymore. 

Dan: Basically not suing anyone for medical debt this year. WOW. I mean, we had expected a significant drop– if only because Maryland had passed that 2021 law, which required hospitals to see if people were eligible for charity care before suing them. 

But zero was a much bigger drop than we’d expected. 

Next stop, New York. A few months ago, we looked at those three law firms – the ones that handled the majority of hospital-bill cases there. 

And as far as we could tell, two of them were just not doing any work for hospitals at all anymore.

But OK, again: We’d expected an “after” picture in both these states. What about Wisconsin?

Well, for one thing, it turned out to be TOUGH. 

Rosie Cima: When we took this on the first time, it definitely seemed like it’d be a lot easier than it ended up being. 

Dan: You can pull some case data from the web, but there’s a problem: Once a case has been dismissed, it gets taken off that website after a few years. 

Rosie Cima: So all the data that we had from before 2020 was missing some unknown number of cases

We can laugh about it now, but that sucked. We did find some guys who had data on older cases socked away. From them, we got the full caseloads for two lawyers we’d heard did a lot of medical-bill lawsuits.

Rosie Cima: We found more than 8000 cases in one year, um, for two lawyers, 

Dan: That was 2019. Pre-pandemic. 

Rosie Cima: And in 2022, There were fewer than 1400 for both of them.

Dan: In other words, these two lawyers were doing less than a quarter as much medical-bill business as they’d been doing three years earlier.

And Rosie pulled numbers year by year, client by client, which was super-revealing. 

Because for both of them, many of their biggest clients – hospitals and medical practices for whom they had been filing hundreds of cases a year – weren’t filing any cases.

Which wasn’t totally conclusive. We knew these lawyers were getting less work…

Rosie Cima: The thing that we didn’t know was, like, whether, Hospital A had stopped suing, or whether they just stopped hiring this lawyer.

Dan: Right. So Rosie went back to the public data website to see whether those hospitals A, B, C and so on were suing. And for the most part, they weren’t — at least not like they used to. 

Rosie Cima: Yeah, we now know that those cases weren’t going to a different lawyer. Right? They’re just not, they’re just not being filed.

Dan: Just not. Being filed. And it wasn’t just the hospitals that had been using these two lawyers that had fallen away. Other hospitals that had been suing tons of patients had cut way back. 

From more than a thousand in 2019 to a few dozen, or less than a dozen. Or one. Or zero. 

One hospital system sued more than 47 hundred people in 2019. In 2023 so far, they’ve sued one.

And remember, because older cases get wiped from the web, there’s some unknown number of cases from 2019 we aren’t seeing. The decline is probably bigger than what we see.

So, one thing to say is: We don’t know WHY this is happening. In any of these states. Our colleagues at the Baltimore Banner called every hospital in Maryland to ask about these changes, and got a bunch of no-comment. We emailed dozens of hospitals in Wisconsin and basically got the same answer.

So we’re left with some guessing – and here are some of our best guesses: 

Those new laws in New York and Maryland didn’t outlaw lawsuits… but the Maryland law made them more difficult, and the New York laws made it harder to collect. 

And the campaigns that led to those laws brought a LOT of negative attention to hospitals that filed a lot of lawsuits. So one way or another, it seems like a lot of hospitals decided it wasn’t worth it.

And in Wisconsin? Laws didn’t change, but the reports that the lawyer Bobby Peterson put out there did get some attention locally. 

We know in Wisconsin, lawsuits halted altogether for a while when the pandemic started. Maybe hospitals noticed that they weren’t exactly losing a ton of money when that happened?

Here’s one last data point from Rosie. She looked closely at the cases she had for those two lawyers from 2019. The ones where the hospital was awarded a judgment.

Rosie Cima: We found that the majority of those awards were never fulfilled, like, I, I feel like that’s important, a judge said, yes, you defendant owe this case. company, the plaintiff, this much money and in a lot of cases, the plaintiff hasn’t paid out. And it’s been years.

Dan: Which I don’t think is evidence that “Wow, these folks were really good at dodging payment!” No, because in a lot of these old cases, the judge gave an OK to garnish these folks’ wages: To take money directly from their paycheck.

So if these debts haven’t been paid, years later – and remember, these are often amounts of a thousand dollars or less – it seems like these folks may be earning so little that garnishing their wages for years doesn’t get you much. 

So, to start wrapping up: There’s a TON we don’t know. For one thing, there’s 47 other states we haven’t looked at. And we don’t know if hospitals in these three states will start suing again, when they think nobody’s looking.

But here’s something I do know: A surprising number of those other states have been passing new laws and regulations in the last couple years, to prevent hospitals from filing so many lawsuits against folks who qualify for charity care: 

Illinois, Arizona, Colorado, Minnesota, Washington, Oregon. I’m probably missing some. 

But here’s the single biggest thing I’m taking away from this whole adventure: A LOT more people qualify for charity care– free or discounted care from the hospital– than we think.

And we can help ourselves and each other, just by spreading the word.

I called Casey Gasior in Wisconsin a couple weeks ago. It wasn’t a great day for her.

Casey: Everybody in my house is sick and I just tested positive for covid. And now we’re going to lose work time.

Dan: Right.

Casey: I tell you, it never ends.

Dan: I was calling because I knew: Casey and her husband Ron have had more medical adventures this year. More knee trouble for him, emergency surgery for her, time away from work and lost income for both of them. And thousands of dollars of new medical bills. 

I said to her: It seems like maybe you and Ron might qualify to have some of those bills forgiven through charity care.

Casey: I think my, my husband makes too much. 

And I was like, well, maybe. But as we learned from Nick McLaughlin in our last episode, almost 60 percent of Americans qualify for charity care at a bunch of hospitals. 

And the nonprofit Dollar For has created a database of the charity care policies of almost every hospital in the country – and they’ve built it into their website. 

So you can type in a few details – where you were treated, how much you make – and it’ll tell you whether you’re likely to qualify for help.

Dan: So, I’m looking at their website right now.

And would it be okay with you to just kind of walk through kind of what they’re asking you, what they, um…

Casey: Yeah, sure.

Dan: Questions included: Where’d you get seen, and when?

Casey: Um, my surgery was July 24th.

Dan: Casey and I went line by line, filling out the form. I had her hunting for tax returns, and other documents

Casey: Hey, Ron. Can you send me a, um, a pay stub? Can you send me a picture of it? Like, now?

Dan: Okay. Alright, I’m going to add those up. There we go.

And yeah, so Dollar For thinks that you would qualify, 

Casey: Wow. That surprises me. 

Dan: This is good.

Casey: This is really…

Dan: Yeah. I’m really glad that we took this step.

Casey: Yeah, me too, because I was kind of, I didn’t know where to go and like, it, it seems so weird asking for charity.

Dan: But Casey was ready to take the next step.

Casey: Now this application that I’m filling out now do I have to do one for myself and one for Ron. 

Dan: Yes. Yeah. 

Casey: Okay, I’m going to work on this

Dan: Okay. Fantastic.

And this is a thing that we can do for ourselves, and each other. Spread the word: The majority of people qualify for at least some charity care – at least partially wiping out your bill – at a LOT of hospitals. 

The Dollar For website is set up to tell you if you’re likely to qualify, and to help you apply. They’ve also got actual human beings on staff to help if you get stuck.

Their website is Dollar For – that’s Dollar F-O-R dot org. Dollar F-O-R dot org. 

And that is our story. We never got all the way to the bottom of the question of WHY these bulk lawsuits happened – or why they seem to have stopped in some places – but we did get a peek into the process. 

And we learned some things that are heartening – a lot fewer lawsuits in these three states!

I’ve learned a lot more, along the way – there’ll be follow-ups. 

This has been a HUGE project for our little outfit. We got a ton of help from our partners, and we put a TON of resources into it: Travel to Wisconsin and Michigan, MONTHS of phone calls, 1600 bucks to get court records. 

We’ve been able to do that because you’ve been supporting us– giving us the resources to do the job. And this is the absolute best time to pitch in: 

Every dollar you give is matched. A few generous Arm and a Leg listeners have put up more than 10 thousand dollars in matching funds ON TOP of what the Institute for Nonprofit News does through their NewsMatch program – and I want to max it out. 

The place to go is Arm and a Leg Show, dot org, slash support. And there’s a link in the show notes – pretty much anywhere you’re listening to this. 

We’ll be back next week with a quick little coda to this story.

Meanwhile, thank you so much for helping us make this show. I’m gonna give that address one more time: Arm and a Leg show dot com, slash support. 

I’ll catch you next week.

Till then, take care of yourself.

This episode of An Arm and a Leg was produced by me, Dan Weissmann, with Emily Pisacreta and Bella Czakowski. 

In partnership with Scripps News, thanks to Rosie Chima, Amber Strong, Claire Malloy, Jacqueline Baylon and Zach Toombs and the Baltimore Banner, thanks to Ryan Little, Meredith Cohn, Brenna Smith and Kimi Yoshino and the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York, with thanks to Jane Sasseen.

Our work on this story is supported by the Fund for Investigative Journalism, and edited by Ellen Weiss. 

Big thanks also to Jared Walker, Bobby Peterson, Luke Messac, Jeff Bloom, Emily Stuart, Berneta Hayes, Matt Szaflarski, Amanda Dunkler, and Marceline White! Plus Barry and Jo from Court Data Techologies, in Wisconsin.

Gabrielle Healy is An Arm and a Leg’s managing editor for audience – she edits the First Aid Kit newsletter.

Sarah Ballema is our Operations Manager. Bea Bosco is our Consulting Director of Operations.

An Arm and a Leg is produced in partnership with KFF Health News. 

That’s a national newsroom producing in-depth journalism about health care in America, and a core program at KFF — an independent source of health policy research, polling, and journalism. 

You can learn more about KFF Health News at arm and a leg show dot com, slash KFF. 

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

Thanks to the INSTITUTE FOR NONPROFIT NEWS for serving as our fiscal sponsor, allowing us to accept tax-exempt donations. You can learn more about INN at I-N-N dot org. 

And thanks to everybody who supports this show financially. 

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

And now, time for one of my favorite parts: Shouting out some of the folks who have made donations since our last episode. Thanks this time to…

[DAN READS NAMES]

Thank you so much!

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

This episode was produced in partnership with Scripps News, The Baltimore Banner, and the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York.

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His claims decrying vaccines have roiled scientists and medical experts and stoked anger over whether his work harms children. He has made suggestions about the cause of covid-19 that he acknowledges sound racist and antisemitic.

Bolstered by his famous name and family’s legacy, his campaign of conspiracy theories has gained an electoral and financial foothold. He is running as an independent — having abandoned his pursuit of the Democratic Party nomination — and raised more than $15 million. A political action committee pledged to spend between $10 million and $15 million to get his name on the ballot in 10 states.

Even though he spent the past two decades as a prominent leader of the anti-vaccine movement, Kennedy rejects a blanket “anti-vax” label that he told Fox News in July makes him “look crazy, like a conspiracy theorist.”

But Kennedy draws bogus conclusions from scientific work. He employs “circumstantial evidence” as if it is proof. In TV, podcast, and political appearances for his campaign in 2023, Kennedy steadfastly maintained:

• Vaccines cause autism.
• No childhood vaccines “have ever been tested in a safety study pre-licensing.”
• There is “tremendous circumstantial evidence” that psychiatric drugs cause mass shootings, and the National Institutes of Health refuses to research the link out of deference to pharmaceutical companies.
• Ivermectin and hydroxychloroquine were discredited as covid-19 treatments so covid vaccines could be granted emergency use authorization, a win for Big Pharma.
• Exposure to the pesticide atrazine contributes to gender dysphoria in children.
• Covid-19 is “targeted to attack Caucasians and Black people. The people who are most immune are Ashkenazi Jews and Chinese.”

For Kennedy, the conspiracies aren’t limited to public health. He claims “members of the CIA” were involved in the assassination of his uncle, John F. Kennedy. He doesn’t “believe that (Sirhan) Sirhan’s bullets ever hit my father,” former Attorney General Robert F. Kennedy. He insists the 2004 presidential election was stolen from Democratic candidate John Kerry.

News organizations, including PolitiFact, have documented why those claims, and many others, are false, speculative, or conspiracy-minded.

Kennedy has sat for numerous interviews and dismissed the critics, not with the grievance and bluster of former President Donald Trump, but with a calm demeanor. He amplifies the alleged plot and repeats dubious scientific evidence and historical detail.

Will his approach translate to votes? In polls since November of a three-way matchup between President Joe Biden, Trump, and Kennedy, Kennedy pulled 16% to 22% of respondents.

Kennedy’s movement exemplifies the resonance of conspiratorial views. Misinformers with organized efforts are rewarded with money and loyalty. But that doesn’t make the claims true.

Robert F. Kennedy Jr.’s campaign based on false theories is PolitiFact’s 2023 Lie of the Year.

How an Environmental Fighter Took Up Vaccines

Kennedy, the third of 11 children, was 9 when he was picked up on Nov. 22, 1963, from Sidwell Friends School in Washington, D.C., because Lee Harvey Oswald had shot and killed Uncle Jack. He was 14 when he learned that his father had been shot by Sirhan Sirhan following a victory speech after the California Democratic presidential primary.

RFK Jr., who turns 70 in January, wouldn’t begin to publicly doubt the government’s findings about the assassinations until later in his adulthood.

As a teenager, he used drugs. He was expelled from two boarding schools and arrested at 16 for marijuana possession. None of that slowed an elite path through higher education, including Harvard University for his bachelor’s degree and the University of Virginia for his law degree.

He was hired as an assistant district attorney in Manhattan in 1982 but failed the bar exam and resigned the next year. Two months later, he was arrested for heroin possession after falling ill on a flight. His guilty plea involved a drug treatment program, a year of probation, and volunteer work with a local anglers’ association that patrolled the Hudson River for evidence of pollution that could lead to lawsuits.

Kennedy’s involvement with Hudson Riverkeeper and the Natural Resources Defense Council ushered in a long chapter of environmental litigation and advocacy.

An outdoorsman and falconer, Kennedy sued companies and government agencies over pollution in the Hudson River and its watershed. (He joined the New York bar in 1985.) He earned a master’s degree in environmental law at Pace University, where he started a law clinic to primarily assist Riverkeeper’s legal work. He helped negotiate a 1997 agreement that protected upstate New York reservoirs supplying New York City’s drinking water.

In 1999, Kennedy founded the Waterkeeper Alliance, an international group of local river and bay-keeper organizations that act as their “community’s coast guard,” he told Vanity Fair in 2016. He stayed with the group until 2020, when he left “to devote himself, full-time, to other issues.”

On Joe Rogan’s podcast in June, Kennedy said that virtually all of his litigation involved “some scientific controversy. And so, I’m comfortable with reading science and I know how to read it critically.”

PolitiFact did not receive a response from Kennedy’s campaign for this story.

He became concerned about mercury pollution from coal-burning power plants; methylmercury can build up in fish, posing a risk to humans and wildlife. As he traveled around the country, he said, women started appearing in the front rows of his mercury lectures.

“They would say to me in kind of a respectful but vaguely scolding way, ‘If you’re really interested in mercury contamination exposure to children, you need to look at the vaccines,’” Kennedy told Rogan, whose show averages 11 million listeners an episode.

Kennedy said the women sounded “rational” as they explained a link between their children’s autism and vaccines. “They weren’t excitable,” he said. “And they had done their research, and I was like, ‘I should be listening to these people, even if they’re wrong.’”

He did more than listen. In June 2005, Rolling Stone and Salon co-published Kennedy’s article “Deadly Immunity.” Kennedy told an alarming story about a study that revealed a mercury-based additive once used in vaccines, thimerosal, “may have caused autism in thousands of kids.” Kennedy alleged that preeminent health agencies — the Centers for Disease Control and Prevention, the Food and Drug Administration, the World Health Organization — had colluded with vaccine manufacturers “to conceal the data.”

Kennedy’s premise was decried as inaccurate and missing context. He left out the ultimate conclusion of the 2003 study, by Thomas Verstraeten, which said “no consistent significant associations were found between [thimerosal-containing vaccines] and neurodevelopmental outcomes.”

Kennedy didn’t clearly state that, as a precaution, thimerosal was not being used in childhood vaccines when his article was published. He also misrepresented the comments of health agency leaders at a June 2000 meeting, pulling certain portions of a 286-page transcript that appeared to support Kennedy’s collusion narrative.

Scientists who have studied thimerosal have found no evidence that the additive, used to prevent germ growth, causes harm, according to a CDC FAQ about thimerosal. Unlike the mercury in some fish, the CDC says, thimerosal “doesn’t stay in the body, and is unlikely to make us sick.” Continued research has not established a link between thimerosal and autism.

By the end of July 2005, Kennedy’s Salon article had been appended with five correction notes. In 2011, Salon retracted the article. It disappeared from Rolling Stone.

Salon’s retraction was part of a broader conspiracy of caving “under pressure from the pharmaceutical industry,” Kennedy told Rogan. The then-Salon editor rejected this, saying they “caved to pressure from the incontrovertible truth and our journalistic consciences.”

Kennedy has not wavered in his belief: “Well, I do believe that autism does come from vaccines,” he told Fox News’ Jesse Watters in July.

David Remnick, editor of The New Yorker, interviewed Kennedy for a July story. Noting that Kennedy was focusing more on vaccine testing rather than outright opposition, Remnick asked him whether he was having second thoughts.

“I’ve read the science on autism and I can tell you, if you want to know,” Kennedy said. “David, you’ve got to answer this question: If it didn’t come from the vaccines, then where is it coming from?”

How Covid-19 Helped RFK Jr.’s Vaccine-Skeptical Crusade

In 2016, Kennedy launched the World Mercury Project to address mercury in fish, medicines, and vaccines. In 2018, he created Children’s Health Defense, a legal advocacy group that works “aggressively to eliminate harmful exposures,” its website says.

Since at least 2019, Children’s Health Defense has supported and filed lawsuits challenging vaccination requirements, mask mandates, and social media companies’ misinformation policies (including a related lawsuit against Facebook and The Poynter Institute, which owns PolitiFact).

From the beginning, the group has solicited stories about children “injured” by environmental toxins or vaccines. This year, it launched a national bus tour to collect testimonials. The organization also produces documentary-style films and books, including Kennedy’s “The Wuhan Cover-Up and the Terrifying Bioweapons Arms Race” and “The Real Anthony Fauci: Bill Gates, Big Pharma, and the Global War on Democracy and Public Health.”

In 2020, Children’s Health Defense and the anti-vaccine movement turned attention to the emerging public health crisis.

Kolina Koltai, a senior researcher at Bellingcat, an investigative journalism group, had seen anti-vaccine groups try to seize on Zika and Ebola outbreaks, with little success. But the covid-19 pandemic provided “the exact scenario” needed to create mass dissent: widespread fear and an information vacuum.

Children’s Health Defense published articles in March and April 2020 claiming the “viral terror” was an attempt to enact the “global immunization agenda” and a “dream come true” for dictators. The group echoed these points in ads and social media posts and grew its audience, including in Europe.

On X, then known as Twitter, Children’s Health Defense outperformed news outlets that met NewsGuard’s criteria for trustworthiness from the third quarter of 2020 to the fourth quarter of 2021, according to a report by the German Marshall Fund think tank, even as Children’s Health Defense published debunked information about covid-19 and vaccines.

In 2019, Children’s Health Defense reported it had $2.94 million in revenue, and paid Kennedy a $255,000 salary. Its revenue grew 440% through 2021, according to IRS filings, hitting $15.99 million. Kennedy’s salary increased to $497,013. (Its 2022 form 990 for tax disclosure is not yet public. Kennedy has been on leave from the organization since he entered the presidential race in April.)

On social media, the message had limits. Meta removed Kennedy’s personal Instagram account in February 2021 for spreading false claims about covid-19 and vaccines, the company said, but left his Facebook account active. A year and a half later, Meta banned Children’s Health Defense’s main Facebook and Instagram accounts for “repeatedly” violating its medical misinformation policies. Several state chapters still have accounts.

As the group’s face, Kennedy became a leader of a movement opposed to masks and stay-at-home orders, said David H. Gorski, managing editor of Science-Based Medicine and a professor of surgery and oncology at the Wayne State University School of Medicine.

“The pandemic produced a new generation of anti-vaxxers who had either not been prominent before or who were not really anti-vax before,” Gorski said. “But none of them had the same cultural cachet that comes with being a Kennedy that RFK Jr. has.”

Rallying a crowd before the Lincoln Memorial on Jan. 23, 2022, Kennedy protested covid-19 countermeasures alongside commentator Lara Logan and anti-vaccine activist Robert Malone. The crowd held signs reading “Nuremberg Trials 2.0” and “free choice, no masks, no tests, no vax.” When Kennedy took the stage, mention of his role with Children’s Health Defense prompted an exuberant cheer.

In his speech, Kennedy invoked the Holocaust to denounce the “turnkey totalitarianism” of a society that requires vaccinations to travel, uses digital currency and 5G, and is monitored by Microsoft Corp. co-founder Bill Gates’ satellites: “Even in Hitler’s Germany, you could cross the Alps into Switzerland. You could hide in an attic like Anne Frank did.”

Days later, facing criticism from his wife, the actor Cheryl Hines, Jewish advocacy groups, and Holocaust memorial organizations, Kennedy issued a rare apology for his comments.

Asked about his wife’s comment on Dec. 15 on CNN, he said his remarks were taken out of context but that he had to apologize because of his family.

Recycle. Repeat. Repeat.

When he’s asked about his views, Kennedy calmly searches his rhetorical laboratory for recycled talking points, selective research findings, the impression of voluminous valid studies, speculation, and inarguable authority from his experience. He refers to institutions, researchers, and reports, by name, in quick succession, shifting points before interviewers can note what was misleading or cherry-picked.

There is power in repetition. Take his persistent claim that vaccines are not safety-tested.

• In July, he told “Fox & Friends,” “Vaccines are the only medical product that is not safety-tested prior to licensure.”
• On Nov. 7 on PBS NewsHour, Kennedy said vaccines are “the only medical product or medical device that is allowed to get a license without engaging in safety tests.”
• On Dec. 15, he told CNN’s Kasie Hunt that no childhood vaccines have “ever been tested in a safety study pre-licensing.”

This is false. Vaccines, including the covid-19 vaccines, are tested for safety and effectiveness before they are licensed. Researchers gather initial safety data and information about side effects during phase 1 clinical trials on groups of 20 to 100 people. If no safety concerns are identified, subsequent phases rely on studies of larger numbers of volunteers to evaluate a vaccine’s effectiveness and monitor side effects.

Kennedy sometimes says that some vaccines weren’t tested against inactive injections or placebos. That has an element of truth: If using a placebo would disadvantage or potentially endanger a patient, researchers might test new vaccines against older versions with known side effects.

But vaccines are among “the most tested and vetted” pharmaceutical products given to children, said Patricia Stinchfield, a pediatric nurse practitioner and the president of the National Foundation for Infectious Diseases.

Kennedy encourages parents to research questions on their own, saying doctors and other experts are invariably compromised.

“They are taking as gospel what the CDC tells them,” Kennedy said on Bari Weiss’ “Honestly” podcast in June.

Public health agencies have been “serving the mercantile interests of the pharmaceutical companies, and you cannot believe anything that they say,” Kennedy said.

Experts fret that the Kennedy name carries weight.

“When he steps forward and he says the government’s lying to you, the FDA is lying to you, the CDC is lying to you, he has credence, because he’s seen as someone who is a product of the government,” said Paul Offit, a pediatrics professor in the Children’s Hospital of Philadelphia’s infectious diseases division and the director of the hospital’s Vaccine Education Center. “He’s like a whistleblower in that sense. He’s been behind the scenes, so he knows what it looks like, and he’s telling you that you’re being lied to.”

Kennedy name-drops studies that don’t support his commentary. When speaking with Rogan, Kennedy encouraged the podcaster’s staff to show a particular 2010 study that found that exposure to the herbicide atrazine caused some male frogs to develop female sex organs and become infertile.

Kennedy has repeatedly invoked that frog study to support his position that “we should all be looking at” atrazine and its impact on human beings. The researcher behind the study told PolitiFact in June that Kennedy’s atrazine claims were “speculation” given the vast differences between humans and amphibians. No scientific studies in humans link atrazine exposure to gender dysphoria.

In July, Kennedy floated the idea that covid-19 could have been “ethnically targeted” to “attack Caucasians and Black people. The people who are most immune are Ashkenazi Jews and Chinese.” The claim was ridiculously wrong, but Kennedy insisted that it was backed by a July 2020 study by Chinese researchers. That study didn’t find that Chinese people were less affected by the virus. It said one of the virus’s receptors seemed to be absent in the Amish and in Ashkenazi Jews and theorized that genetic factors might increase covid-19 severity.

Five months later, Kennedy invoked the study and insisted he was right: “I can understand why people were disturbed by those remarks. They certainly weren’t antisemitic. … I was talking about a true study, an NIH-funded study.”

“I wish I hadn’t said them, but, you know, what I said was true.”

Kennedy answered using scientific terms (“furin cleave,” “ACE2 receptor”), but he ignored explanations found in the study. He didn’t account for how the original virus has evolved since 2020, or how the study emphasized these potential mutations were rare and would have little to no public health impact.

Public health experts say that racial disparities in covid-19 infection and mortality — in the U.S., Black and Hispanic people often faced more severe covid-19 outcomes — resulted from social and economic inequities, not genetics.

Kennedy says “circumstantial evidence” is enough.

Antidepressants are linked to school shootings, he told listeners on a livestream hosted by Elon Musk. The government should have begun studying the issue years ago, he said, because “there’s tremendous circumstantial evidence that those, like SSRIs and benzos and other drugs, are doing this.”

Experts in psychiatry have told PolitiFact and other fact-checkers that there is no causal relationship between antidepressants and shootings. With 13% of the adult population using antidepressants, experts say that if the link were true they would expect higher rates of violence. Also, the available data on U.S. school shootings shows most shooters were not using psychiatric medicines, which have an anti-violence effect.

Conspiracy Theories, Consequences, and a Presidential Campaign

The anti-censorship candidate frames his first bid for public office as a response to “18 years” of being shunned for his views — partly by the government, but also by private companies.

“You’re protected so much from censorship if you’re running for president,” Kennedy told conservative Canadian podcaster and psychologist Jordan Peterson in June.

In June, Kennedy’s Instagram account was reinstated — with a verified badge noting he is a public figure. Meta’s rules on misinformation do not apply to active political candidates. (PolitiFact is a partner of Meta’s Third Party Fact-Checking Program, which seeks to reduce false content on the platform.)

In July, he was invited to testify before the Republican-led House Select Subcommittee on the Weaponization of the Federal Government. He repeated that he had “never been anti-vax,” and railed against the Biden White House for asking Twitter to remove his January 2021 tweet that said Baseball Hall of Famer Hank Aaron’s death was “part of a wave of suspicious deaths among elderly,” weeks after Aaron, 86, received a covid-19 vaccine. The medical examiner’s office said Aaron died from unrelated natural causes.

Throughout 2023, alternative media has embraced Kennedy. He has regularly appeared on podcasts such as Peterson’s, and has also participated in profiles by mainstream TV, online, and print sources.

“You’re like, ‘But you’re talking right now. I’m listening to you. I hear your words. You’re not being censored,’” said Whitney Phillips, an assistant professor in the School of Journalism and Communication at the University of Oregon who researches how news media covers conspiracy theories and their proponents. “But a person can believe they’re being censored because they’ve internalized that they’re going to be,” or they know making the claim will land with their audience.

Time will tell whether his message resonates with voters.

Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics, said Kennedy may be a “placeholder” for voters who are dissatisfied with Trump and Biden and will take a third option when offered by pollsters.

The only 2024 candidate whose favorability ratings are more positive than negative? It’s Kennedy, according to FiveThirtyEight. However, a much higher percentage of voters are unfamiliar with him than they are with Trump or Biden — about a quarter — and Kennedy’s favorability edge has decreased as his campaign has gone on.

Nevertheless, third-party candidates historically finish with a fraction of their polling, Kondik said, and voters will likely have more names and parties on their fall ballots, including philosopher Cornel West, physician Jill Stein, and a potential slate from the No Labels movement.

Kennedy was popular with conservative commentators before he became an independent, and he has avoided pointedly criticizing Trump, except on covid-19 lockdowns. When NBC News asked Kennedy in August what he thought of Trump’s 2020 election lies, Kennedy said he believed Trump lost, but that, in general, people who believe elections were stolen “should be listened to.” Kennedy is one of them. He still says that the 2004 presidential election was “stolen” from Kerry in favor of Republican George W. Bush, though it wasn’t.

American Values 2024 will spend up to $15 million to get Kennedy’s name on the ballot in 10 states including Arizona, California, Indiana, New York, and Texas. Those are five of the toughest states for ballot access, said Richard Winger, co-editor of Ballot Access News.

Four of Kennedy’s siblings called Kennedy’s decision to run as an independent “dangerous” and “perilous” to the nation. “Bobby might share the same name as our father, but he does not share the same values, vision or judgment,” the group wrote in a joint statement.

Kennedy brushes it off when asked, saying he has a large family and some members support him.

On her podcast, Weiss asked whether Kennedy worried his position on autism and vaccines would cloud his other positions and cost him votes. His answer ignored his history.

“Show me where I got it wrong,” he said, “and I’ll change.”

In a campaign constructed by lies, that might be the biggest one.

PolitiFact researcher Caryn Baird contributed to this report.​

PolitiFact’s source list can be found here.

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

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In September 2022, Elyse Greenblatt of Queens returned home from a trip to Rwanda with a rather unwelcome-back gift: persistent congestion.

She felt a pain in her sinuses and sought a quick resolution.

Covid-19 couldn’t be ruled out, so rather than risk passing on an unknown infection to others in a waiting room, the New Yorker booked a telehealth visit through her usual health system, Mount Sinai — a perennial on best-hospitals lists.

That proved an expensive decision. She remembers the visit as taking barely any time. The doctor decided it was likely a sinus infection, not covid, and prescribed her fluticasone, a nasal spray that relieves congestion, and an antibiotic, Keflex. (The Centers for Disease Control and Prevention says antibiotics “are not needed for many sinus infections, but your doctor can decide if you need” one.)

Then the bill came.

The Patient: Elyse Greenblatt, now 38, had insurance coverage through Empire BlueCross BlueShield, a New York-based insurer.

Medical Services: A telehealth urgent care visit through Mount Sinai’s personal record app. Greenblatt was connected with an urgent care doctor through the luck of the draw. She was diagnosed with sinusitis, prescribed an antibiotic and Flonase, and told to come back if there was no improvement.

All this meant a big bill. The insurer said the telehealth visit was deemed an out-of-network service — a charge Greenblatt said the digital service didn’t do a great job of warning her about. It came as a surprise. “In my mind, if all my doctors are ‘in-insurance,’ why would they pair me with someone who was ‘out-of-insurance’?” she asked. And the hospital system tried its best to make contesting the charge difficult, she said.

Service Provider: The doctor was affiliated with Mount Sinai’s health system, though where the bill came from was unclear: Was it from one of the system’s hospitals or another unit?

Total Bill: $660 for what was billed as a 45- to 59-minute visit. The insurer paid nothing, ruling it out of network.

What Gives: The bill was puzzling on multiple levels. Most notably: How could this be an out-of-network service? Generally, urgent care visits delivered via video are a competitive part of the health care economy, and they’re not typically terribly expensive.

Mount Sinai’s telehealth booking process is at pains to assure bookers they’re getting a low price. After receiving the bill, Greenblatt went back to the app to recreate her steps — and she took a screenshot of one particular part of the app: the details. She got an estimated wait time of 10 minutes, for a cost of $60. “Cost may be less based on insurance,” the app said; this information, Mount Sinai spokesperson Lucia Lee said, is “for the patient’s benefit,” and the “cost may differ depending on the patient’s insurance.”

A $60 fee would be in line with, if not a bit cheaper than, many other telehealth services. Doctor on Demand, for example, offers visits from a clinician for $79 for a 15-minute visit, assuming the customer’s insurance doesn’t cover it. Amazon’s new clinic service, offering telehealth care for a wide range of conditions, advertises that charges start at $30 for a sinus infection.

The Health Care Cost Institute, an organization that analyzes health care claims data, told KFF Health News its data shows an urgent care telehealth visit runs, on average, $120 in total costs — but only $14 in out-of-pocket charges.

So how did this visit end up costing astronomically so much more than the average? After all, one of the selling points of telemedicine is not only convenience but cost savings.

First, there was the length of the visit. The doctor’s bill described it as moderately lengthy. But Greenblatt recalled the visit as simple and straightforward; she described her symptoms and got an antibiotic prescription — not a moderately complex visit requiring the better part of an hour to resolve.

The choice of description is a somewhat wonky part of health care billing that plays a big part in how expensive care can get. The more complex the case, and the longer it takes to diagnose and treat, the more providers can charge patients and insurers.

Greenblatt’s doctor billed her at a moderate level of care — curious, given her memory of the visit as quick, almost perfunctory. “I think it was five minutes,” she recalled. “I said it was a sinus infection; she told me I was right. ‘Take some meds, you’ll be fine.’”

Ishani Ganguli, a doctor at Brigham and Women’s Hospital in Boston who studies telehealth, said she didn’t know the exact circumstances of care but was “a bit surprised that it was not billed at a lower level” if it was indeed a quick visit.

That leaves the out-of-network aspect of the bill, allowing the insurer to pay nothing for the care. (Stephanie DuBois, a spokesperson for Empire BlueCross BlueShield, Greenblatt’s insurer, said the payer covers virtual visits through two services, or through in-network doctors. The Mount Sinai doctor fit neither criteria.) Still, why did Mount Sinai, Greenblatt’s usual health care system, assign her an out-of-network doctor?

“If one gets their care from the Mount Sinai system and the care is within network, I don’t think it is reasonable for the patients to expect or understand that one of the Mount Sinai clinicians is suddenly going to be out of network,” said Ateev Mehrotra, a hospitalist and telehealth researcher at Beth Israel Deaconess Medical Center.

It struck the doctors specializing in telehealth research whom KFF Health News consulted as an unusual situation, especially since the doctor who provided the care was employed by the prestigious health system.

The doctor in question may have been in network for no insurers whatsoever: A review of the doctor’s Mount Sinai profile page — archived in November 2022 — does not list any accepted insurance. (That’s in contrast to other doctors in the system.)

Lee, Mount Sinai’s spokesperson, said the doctor did take at least some insurance. When asked about the doctor’s webpage not showing any accepted plans, she responded the site “instructs patients to contact her office for the most up-to-date information.”

Attempting to solve this billing puzzle turned into a major league headache for Greenblatt. Deepening the mystery: After calling Mount Sinai’s billing department, she was told the case had been routed to disputes and marked as “urgent.”

But the doctor’s office would seemingly not respond. “In most other professions, you can’t just ignore a message for a year,” she observed.

The bill would disappear on her patient portal, then come back again. Another call revealed a new twist: She was told by a staffer that she’d signed a form consenting to the out-of-network charge. But “when I asked to get a copy of the form I signed, she asked if she could fax it,” Greenblatt said. Greenblatt said no. The billing department then asked whether they could put the form in her patient portal, for which Greenblatt gave permission. No form materialized.

When KFF Health News asked Mount Sinai about the case in mid-October of this year, Lee, the system’s spokesperson, forwarded a copy of the three-page form — which Greenblatt didn’t remember signing. Lee said the forms are presented as part of the flow of the check-in process and “intended to be obvious to the patient as required by law.” Lee said on average, a patient signs two to four forms before checking into the visit.

But, according to the time stamp on the forms, Greenblatt’s visit concluded before she signed. Lee said it is “not standard” to sign forms after the visit has concluded, and said that once informed, patients “may contact the office and reschedule with an ‘in-network provider.’”

“If it was provided after the service was rendered, that is an exception and situational,” she concluded.

The business with the forms — their timing and their obviousness — is potentially a vital distinction. In December 2020, Congress enacted the No Surprises Act, designed to crack down on so-called surprise medical bills that arise when patients think their care is covered by insurance but actually isn’t. Allie Shalom, a lawyer with Foley & Lardner, said the law requires notice to be given to patients, and consent obtained in advance.

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But the legislation provides an exception. It applies only to hospitals, hospital outpatient facilities, critical access hospitals, and ambulatory surgery centers. Greenblatt’s medical bill variously presents her visit as “Office/Outpatient” or “Episodic Telehealth,” making it hard to “tell the exact entity that provided the services,” Shalom said.

That, in turn, makes its status under the No Surprises Act unclear. The rules apply when an out-of-network provider charges a patient for care received at an in-network facility. But Shalom couldn’t be sure what entity charged Greenblatt, and, therefore, whether that entity was in network.

As for Mount Sinai, Lee said asking for consent post-visit does not comply with the No Surprises Act, though she said the system needed more time to research whether Greenblatt was billed by the hospital or another entity.

The Resolution: Greenblatt’s bill is unpaid and unresolved.

The Takeaway: Unfortunately, patients need to be on guard to protect their wallets.

If you want to be a smart shopper, consider timing the length of your visit. The “Bill of the Month” team regularly receives submissions from patients who were billed for a visit significantly longer than what took place. You shouldn’t, for example, be charged for time sitting in a virtual waiting room.

Most important, even when you seek care at an in-network hospital, whose doctors are typically in network, always ask if a particular physician you’ve not seen before is in your network. Many practices and hospitals offer providers in both categories (even if that logically feels unfair to patients). Providers are supposed to inform you that the care being rendered is out of network. But that “informed consent” is often buried in a pile of consent forms that you auto-sign, in rapid fire. And the language is often a blanket statement, such as “I understand that some of my care may be provided by caregivers not in my insurance network” or “I agree to pay for services not covered by my insurance.”

To a patient trying to quickly book care, that may not feel like “informed consent” at all.

“It’s problematic to expect patients to read the fine print, especially when they feel unwell,” Ganguli said.

Emily Siner reported the audio story.

Bill of the Month is a crowdsourced investigation by KFF Health News and NPR that dissects and explains medical bills. Do you have an interesting medical bill you want to share with us? Tell us about it!

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

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This story can be republished for free (details).