Tagged Courts

Must-Reads Of The Week From Brianna Labuskes

Happy Friday! As you all know, when I come across an outrageous medical mystery story I like to drag you all down with me because horrified misery loves company. This week’s offering: A man in Kentucky went into his doctor complaining of eye irritation. And what did his doctor pull out of his eyeball? That’s right! A tick. (You’re welcome.)

Quickly moving on! Here’s what you might have missed during this very hot week.

The tensions in the Democratic presidential field that have been brewing for a while erupted into verbal sparring between Sen. Bernie Sanders (I-Vt.) and former Vice President Joe Biden. The mini-war seems to be more than just your typical political posturing — both men have deep personal stakes in the issue (which, if you haven’t noticed, voters care a lot about right now). Sanders’ “Medicare for All” plan is nearly synonymous with the man himself, while Biden experienced firsthand the blood, sweat and tears it took to actually get the health law passed.

Earlier in the week, Biden dropped his own health plan, which could be summed up as the Affordable Care Act on steroids. And his promise that went along with the reveal — “If you like your plan … you can keep it” — was a blast-from-the-past that highlights all the advantages (the health law is quite popular at the moment) and pitfalls (that promise when President Barack Obama made it was ranked PolitiFact’s “Lie of the Year”) of taking this particular path.

It also nudged Biden and Sanders into a collision over their philosophical differences that played out in public at various events this week. Neither candidate pulled punches, but Sanders, in particular, had some tough words for his rival. “Unfortunately, he is sounding like Donald Trump,” he said. “He is sounding like the health care industry, in that regard.”

On that note, Sanders called on the Democratic candidates to join his pledge not to take donations from the health industry or pharma. Though he didn’t name names, it seemed to many like another jab at Biden.

Biden also took shots of his own, calling Medicare for All costly and complicated, and insinuating that those looking to get rid of the health law are no better than Republicans.

Whatever the outcome of this particular scuffle, it highlights that, in a crowded field, candidates are looking for things to set them apart. And in this particular election cycle, looks like it’s health care.

CNN: Biden Proposes Massive New Obamacare Subsidies, Public Option in Health Care Plan

The New York Times: Sanders and Biden Fight Over Health Care, and It’s Personal

Politico: Sanders Calls on Democratic Rivals to Reject Drug, Insurance Industry Donations

The New York Times: Anxious Democratic Governors Urge 2020 Field Not to Veer Too Far Left


Meanwhile, the health law faced off against an unlikely foe this week: Democrats. Lawmakers in the House delivered what is in all intents and purposes a death blow to the “Cadillac tax,” a cost-containing provision that at one point in time was looked at as crucial to the law’s success. (The Senate hasn’t voted on it yet, but Republicans are not exactly fans of the tax, so its fate seems decided.)

But as hell has not frozen over, it’s not as if the Democrats are suddenly jumping on the GOP bandwagon to dismantle the law. The tax was disliked by unions (a key constituency) and some liberal-leaning economists. Rep. Joe Courtney (D-Conn.), the author of the repeal bill, even (subtly) called it, the “Middle Class Health Benefits Tax Repeal Act.”

The New York Times: House Votes to Repeal Obamacare Tax Once Seen As Key to Health Law

As a side note, you should be following Noam Levey’s great series on the ways Americans are hurting in the wake of the high-deductible revolution.

Los Angeles Times: Rising Health Insurance Deductibles Fuel Middle-Class Anger and Resentment


The Democratic field’s fireworks over candidates’ philosophical differences weren’t the only ones on display this week. Dr. Leana Wen was ousted from her position as head of Planned Parenthood after only eight months in the role. Although there have been reports about managerial styles, Wen has hinted that the friction comes from her desire to view the organization through a public health prism. During a time when the abortion wars grow only more intense, Wen’s strategy to emphasize abortion as part of a larger part of improving women’s health felt out of step to some.

The New York Times: A Messy Exit Leaves Planned Parenthood at a Philosophical Crossroads

As if underscoring that very tension, the ousting came as the Trump administration announced that the changes to family planing funding, often called a “gag rule” by critics, would be enforced immediately, now that it has the court’s go-ahead.

The Associated Press: Trump Abortion Restrictions Effective Immediately


After a yearlong legal battle, The Washington Post and HD Media, which publishes the Charleston Gazette-Mail in West Virginia, obtained information from a Drug Enforcement Administration database that shows how 76 billion oxycodone and hydrocodone pain pills saturated the country as the opioid epidemic was gaining steam. Just six companies distributed 75% of the pills from 2006 to 2012, sending millions of pills into tiny rural towns with only a few thousand residents. The numbers reveal a trail of bright, screaming red flags that were overlooked as the country barreled toward a crisis point.

The Washington Post: Largest U.S. Drug Companies Flooded Country With 76 Billion Opioid Pills, DEA Data Shows

PBS NewsHour: The Opioid Industry Fought Hard to Keep This Database Hidden. Here’s What It Shows

There was some rare good news on the opioid front this week: For the first time since 1990, fatal drug overdoses actually fell. There are (of course!) caveats, though: Experts still see worrying trends when it comes to synthetic drugs such as fentanyl.

The Washington Post: Drug Overdoses Fell Significantly in 2018 for First Time in Decades, Provisional CDC Data Show


Everyone in Congress and the administration is really, very, extremely angry about high drug prices … and yet pharma is still racking up the wins on Capitol Hill. Stat has a great read on exactly what’s going on with the industry’s influence, and looks at a new strategy from drugmakers, who seem to be targeting a pair of vulnerable Republicans to get their way.

Stat: How Pharma, Under Attack From All Sides, Keeps Winning in Washington


In a landscape where everyone is jonesing to cut costs, why is it so breathtakingly easy to scam insurers? Some investigators estimate that fraud eats up 10% of all health care spending. Consumers’ gut reaction is that insurers would, of course, be stepping in to police these bad actors. But they don’t seem to have any desire — or, at least, not enough — to actually act. Maybe that’s because consumers are the ones getting stuck with the losses.

ProPublica: Health Insurers Make It Easy for Scammers to Steal Millions. Who Pays? You.

Speaking of, a former VA employee who was supposed to help veterans navigate insurance for their kids who had spina bifida used the position to collect millions in kickbacks, prosecutors allege.

The Daily Beast: Feds Say Former VA Employee Used Vets’ Ailing Kids to Scam Millions


A lot of very cool (or at least interesting) news came out of the Alzheimer’s Association International Conference this week. A look at highlights:

Los Angeles Times: Blood Test for Alzheimer’s Disease Moves Closer to Becoming a Reality

CNN: Lifestyle Can Still Lower Dementia Risk Even If You Have High Genetic Risk, Study Suggests

The Washington Post: Women Who Work for a Salary See Slower Memory Decline in Old Age, Reducing Their Risk of Dementia, a New Study Suggests


And in the miscellaneous file:

• What’s it like to be a Border Patrol agent? Because access to them can be tightly controlled, it’s rare to hear about their experiences. This story contains a chilling, yet fitting musing: “Somewhere down the line people just accepted what’s going on as normal.”

ProPublica: A Border Patrol Agent Reveals What It’s Really Like to Guard Migrant Children

• It’s one of health care’s biggest challenges: weaning people off the habit of going to the ER instead of a primary care doctor. Well, New York City is going to invest $100 million a year to try to do just that.

The Wall Street Journal: New York City Hopes to Ease Strain on Its Emergency Rooms

• More than 200,000 kids in Tennessee were either cut or slated to be cut from insurance because the state’s unwieldy system heavily relied on hard-copy forms.

The Tennessean: At Least 220,000 Tennessee Kids Faced Loss of Health Insurance Due to Lacking Paperwork

• Do service dogs actually help veterans with PTSD? Although there are plenty of heart-warming anecdotal stories about the benefits, doctors in the VA are hesitant to recommend them over treatment that has been shown to work because there’s little hard science on their benefits. The thing is, the VA is supposed to be doing research on it. Yet, for some reason, it’s been lagging, despite the burgeoning mental health crisis among veterans.

The New York Times: Do Service Dogs Help Treat PTSD? After Years of Research, the V.A. Still Doesn’t Know

• A look at law enforcement in Alaska, where violence against women is gaining national attention, shows that dozens of convicted criminals have been hired as cops for these communities. In one small village, every single policeman on the force, including the chief, has a criminal record of domestic violence.

ProPublica/Anchorage Daily News: The Village Where Every Cop Has Been Convicted of Domestic Violence


That’s it from me! Try to stay cool and make sure to hydrate this weekend!

KHN’s ‘What The Health?’: Biden Doubles Down On Obamacare


Can’t see the audio player? Click here to listen on SoundCloud.


Former Vice President Joe Biden has said if he’s elected president he would build on the Affordable Care Act rather than move to a whole new health care system, such as the “Medicare for All” plan supported by some of his primary opponents for the Democratic nomination. But his campaign’s new health plan would include many things Congress tried and failed to pass as part of the health law, including a government-run “public option” plan that would be widely available.

Meanwhile, the U.S. House voted to repeal one of the ACA’s key financing mechanisms, voting overwhelmingly to cancel the so-called “Cadillac tax,” which was set to take effect in 2022. It is a 40% excise tax on the most generous employer-provided health plans.

And it was not a good week for Planned Parenthood. The women’s health provider parted ways with its president of less than a year, Leana Wen. And the Trump administration announced it would begin enforcement of new rules for the federal family planning program that Planned Parenthood said will force it to stop participating.

This week’s panelists are Julie Rovner from Kaiser Health News, Joanne Kenen of Politico, Kimberly Leonard of the Washington Examiner and Margo Sanger-Katz of The New York Times.

Among the takeaways from this week’s podcast:

  • Biden’s health proposal seeks to lower out-of-pocket costs for many people in several ways. For example, it would make federal premium help available to all who buy their own insurance, not just those with low and middle incomes. It would also change how federal premium subsidies are determined. It would base the assistance on the cost of a gold plan, rather than the current practice of using the second lowest priced silver plan. Since gold plans are more generous, using that standard could lower the amount of deductibles and copayments people getting subsidies have to pay.
  • The ACA’s Cadillac tax has been strongly endorsed by health economists, who view it as a way to cut the amount of unnecessary care some people with generous plans seek. But many employers, consumers and labor unions don’t want to tinker with the current tax system of job-based insurance.
  • The administration’s decision to go forward with its new rules for the Title X family planning program — while critics are challenging those regulations in the courts — will have a significant effect on Planned Parenthood’s finances. But the group gets even more government money through the Medicaid program.
  • Despite two setbacks last week in the administration’s efforts to reduce drug prices, President Donald Trump is continuing to hint that he wants to go forward with a plan to tie some Medicare drug prices to what people in other countries pay for the medications.
  • Federal officials have announced that opioid deaths have declined, but it is not clear that opioid overdoses or addiction has declined.

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

Julie Rovner: The New York Times’s “Where Roe v Wade Matters Most,” by Quoctrung Bui, Claire Cain Miller and Margot Sanger-Katz.

Joanne Kenen:  Scientific American’s “Why Doctors Are Drowning in Medical School Debt,” by Daniel Barron.

Margot Sanger-Katz: Bloomberg News’ “Deadly Disease Is Treatable, But Newborn Screening Patchwork Leaves Many Vulnerable,” by Michelle Cortez.

Kimberly Leonard: The Washingtonian’s “DC Types Have Been Flocking to Shrinks Ever Since Trump Won. And a Lot of the Therapists Are Miserable,” by Britt Peterson.

To hear all our podcasts, click here.

And subscribe to What the Health? on iTunesStitcherGoogle PlaySpotify, or Pocket Casts.

Listen: Opioid Trial In Oklahoma Wraps Up

Did drugmaker Johnson & Johnson create a “public nuisance” that led to the opioid epidemic? That’s the question a state judge in Oklahoma is weighing after the country’s first trial against opioid manufacturers wrapped up Monday. The state is asking for $17 billion in damages. Jackie Fortier of StateImpact Oklahoma has covered the trial from start to finish for NPR and Kaiser Health News. This account of the seven-week trial’s closing arguments aired on NPR’s “Morning Edition” on Tuesday.

This story is part of a partnership that includes StateImpact Oklahoma, NPR and Kaiser Health News.

Judge Slashes Roundup Weedkiller Verdict From $80 Million To $25 Million For California Man With Cancer

U.S. District Judge Vince Chhabria in San Francisco said Monday the higher award was “constitutionally impermissible” because it was nearly 15 times the compensatory damages award. He denied Bayer’s request for a new trial. Edwin Hardeman used Roundup for many years starting in the 1980s to treat poison oak and weeds on his property. He was diagnosed with non-Hodgkin’s lymphoma in 2014. The company is fighting thousands of lawsuits.

‘Cunning, Cynical And Deceitful’: Sparks Fly In Closing Arguments Of Closely Watched Johnson & Johnson Opioid Trial

The six-week trial was the first of many lawsuits against pharmaceutical companies over what role they played in the opioid epidemic, and the outcome is expected to set the bar for the ones that follow. The judge says he anticipates taking about a month to reach a decision in the case.

Must-Reads Of The Week From Brianna Labuskes

Happy Friday! If you want a smile after this long week, be sure to check out today’s Google Doodle. I feel like this is the right crowd to appreciate it.

Now on to what you may have missed!

The courtroom was where much of the action took place this week, from Title X funding to drug prices to opioids. But the biggest spotlight of all was on the fate of the Affordable Care Act.

The latest challenge to the health law was a long-shot case, with legal experts writing off its chances of prevailing at the start. The suit can be perfectly summed up by a question from Judge Jennifer Walker Elrod, one of the three judges who heard oral arguments on the case in New Orleans: “If you no longer have the tax, why isn’t it unconstitutional?”

Judge Kurt Engelhardt also asked why the Senate hadn’t sent a lawyer along with the House counsel to convey that the congressional intent had been to keep most of the law. “They’re sort of the 800-pound gorilla that’s not in the room,” he said.

Despite some blunt questioning, though, it’s not clear where the judges will land on the final decision. The case could end up in front of the Supreme Court right in the heart of the 2020 election cycle. Considering that the “we’re the side protecting all those popular health law provisions” argument was at least partly credited for Democrats’ blue wave in the midterms, the timing of the case could have deep political ramifications for Republicans.

The Washington Post: Appeals Judges Question Whether the ACA Can Stand Without Insurance Penalty

Politico: Long-Shot Legal Challenge Could End Obamacare During the 2020 Campaign

If the law is overturned, the far-reaching ripple effects would go far beyond politics. It’s not just that 21 million people could lose health insurance, or that the protections for people with preexisting conditions would go away or that insurers would no longer have to cover young adults on their parents’ plans. So many of the Affordable Care Act’s directives have become ingrained in daily life that it’s as if many people forget they’re tied to that hot-button “Obamacare” topic.

On that list? Calorie counts on menus, lactation rooms at work, transparency for gifts from pharma companies to doctors, YMCA courses that teach diabetes maintenance, etc., etc.

The New York Times: So You Want to Overturn Obamacare. Here Are Some Things That Would Be Headaches.

Also on that list? A wonky provision that grants HHS “innovation” authority. The reason it’s important? President Donald Trump is using that very authority (that’s part of the law he’s trying to get overturned) to make big promises on revolutionizing the kidney care marketplace.

The New York Times: Trump’s Assault on Obamacare Could Undermine His Own Health Initiatives

(Pardon my detour from the courts for a minute, but that’s an impossible-not-to-utilize segue for the other big news of the week, and I’m going to jump on it.)

Trump announced an extremely ambitious plan this week to upend the kidney care world. Currently, the marketplace relies heavily on patients getting care at large dialysis clinics, even though at-home options are both safe and cost-effective. But those big chains can pull in $24 billion a year in revenue, so I somehow doubt that they’re going to go gently into that good night. Another part of the plan would incentivize kidney donations with reimbursements for lost wages and child care to try to address the country’s shortages. (And a special shoutout to Politico for the scoop on the plan.)

The New York Times: Trump Proposes Ways to Improve Care for Kidney Disease and Increase Transplants

Politico: Trump Aims to Shake Up Kidney Care Market

And now back to our court news: Trump’s strategy to curb drug prices sustained the first of two significant blows this week when a federal judge ruled that the administration can’t force companies to put prices in their TV ads. Judge Amit Mehta dodged the tricky First Amendment debate and instead focused on HHS’ authority (or lack thereof, really) to enforce such a rule. His ruling was, essentially: Hey, high drug prices are the pits and this might be an effective tool. But HHS can’t do more than Congress has authorized.

The New York Times: Judge Blocks Trump Rule Requiring Drug Companies to List Prices in TV Ads

The second punch came Friday when the administration pulled the plug on a signature proposal to eliminate drug rebates for pharmacy benefit managers (the target du jour for ire over high prices). Policy experts had worried the rule would lead to higher premiums for Medicare beneficiaries. Insurers and PBMs were popping the champagne over the announcement, while the general consensus is that pharma companies should now be braced for (an even bigger) storm headed their way.

Stat: After Trump Pulled the Plug on Rebates, His Options to Reduce Drug Prices Narrow. And He May Need Congress


The 2020 Democratic candidates were busy bees this week:

— Sen. Elizabeth Warren (D-Mass.) announced an immigration plan that would include the creation of a DOJ task force to investigate complaints of abuse and neglect from detainees.

Politico: Elizabeth Warren Takes on Trump With Immigration Overhaul

— Sen. Kamala Harris (D-Calif.) wants to take on the epidemic of outrageous rape kit backlogs. The kits can sometimes sit in police departments, which are strained for resources, for years. Harris has some bona fide experience to back up her plan. When she was California’s attorney general, her Rapid DNA Service team said it cleared all 1,300 untested rape kits in the state’s backlog in one year and earned national recognition and grants for its efforts.

USA Today: Kamala Harris: Rape Kit Backlog Can Be Cleared at Cost of Trump Golf Trips

— Sen. Amy Klobuchar (D-Minn.) released a proposal to tackle a wide range of problems that affect Americans’ seniors, from high drug costs to Alzheimer’s research to long-term care issues.

Politico: How Amy Klobuchar Would Improve Care for Seniors

— And Sen. Bernie Sanders (I-Vt.) is hopping on a bus to Canada with a group of Americans in search of cheaper insulin. This isn’t his first time embarking on such a trip. Twenty years ago, he went north with a group of breast cancer patients with a similar goal. (That two-decade gap between the trips speaks volumes, doesn’t it?)

CNN: Bernie Sanders to Join People With Type 1 Diabetes on Canada Trip for Cheaper Insulin

As we’ve seen in recent weeks, nearly all the Democratic candidates support the idea of providing health care to people who are in the country illegally. But what exactly would that entail? For one, it would place the U.S. even further left of progressive countries who already have universal health care. Most of them have at least some restrictions in place. But experts say that not only in the long run could providing care for them save money — immigrants in the country without legal permission tend to be young and relatively healthy and underuse available care.

The New York Times: What Would Giving Health Care to Undocumented Immigrants Mean?

Meanwhile, California is charging forward to become the first state in the country to offer Medicaid coverage to residents below the age of 26, regardless of their immigration status.

The Associated Press: California OKs Benefits to Immigrants In Country Illegally


Speaking of Medicaid, New Hampshire pumped the brakes on its new work requirements following reports that more than 17,000 people (yes, you read that right) would be found to be noncompliant with the rules after its first month. The state has been making the rounds with mailings, phone calls and even a door-knocking campaign, but officials still suggest the problem is that most people aren’t aware they need to report their hours. The experience mirrors Arkansas’ (almost down to the exact number of people who would be booted) and highlights the inherent obstacles states face when putting such rules in place.

Modern Healthcare: New Hampshire Delays Its Medicaid Work Requirement


A mother whose 19-month-old daughter died after being detained by ICE spoke at a House hearing this week about reports of the inhumane conditions at the facilities. “The world should know what happened,” Yazmin Juárez said during deeply emotional testimony. The name of the hearing — “Kids in Cages: Inhumane Treatment at the Border” — set the tone and reflected the state of affairs on Capitol Hill over the issue.

The Washington Post: ‘Kids in Cages’: House Hearing Examines Immigration Detention As Democrats Push for More Information


About 20% of the nation’s hospice facilities have safety lapses that are serious enough to endanger patients. What does that look like, beyond the dry terminology of an inspector general’s report? Gangrene so bad that a patient’s leg needed to be amputated; maggots burrowing near wound openings; and unnoticed sexual assault. But the report highlights another issue: There’s not much CMS can do about all of it. It would take an act of Congress to give CMS the power to fine the industry’s bad actors.

NPR: Roughly 20% of U.S. Hospice Programs Cited for Serious Deficiencies, Inspectors Say


In the miscellaneous file for the week:

• There are lots of voices in the abortion wars these days. Many of them, though, are from white leaders — on both sides of the issue — while the unique nuances and challenges that black communities face are missing from the debate. For women of color, race is tied to abortion in a way that white advocates rarely have to contend with.

The New York Times: When ‘Black Lives Matter’ Is Invoked in the Abortion Debate

•  An alleged mix-up at a fertility clinic that resulted in a woman having two babies who were not related to either her or each other highlights the real pitfalls of human error and advanced medicine.

USA Today: IVF Couple Sues California Clinic, Alleges Babies Weren’t DNA Match

• On paper, as medical aid-in-dying laws continue to pass across the country, more Americans are gaining control over how they end their lives. The reality looks a lot different, though.

The New York Times: Aid in Dying Soon Will Be Available to More Americans. Few Will Choose It.

• A Disney Channel star’s death this week highlighted the dangers of epilepsy-linked sleep deaths. Although it is rare, SUDEP is responsible for more deaths than SIDS (sudden infant death syndrome) and yet few people have heard of it.

CNN: Cameron Boyce’s Death: How Seizures Can Kill People With Epilepsy

• A new Secret Service report on mass violence incidents reveals that two-thirds of perpetrators had made threats before the attacks.

CNN: A New Report on Mass Attacks in the US Shows Common Traits Among Assailants

• A hospital in Ohio fired 23 employees in the wake of murder charges against one of its doctors in a case related to patients’ painkiller-linked deaths. There are a lot of issues here, but of particular note is how systemic such problems can become. One medical professional might be the root problem, but, at some point, that infection can spread to many interlocking parts within a health system.

The New York Times: Hospital C.E.O. Resigns and 23 Employees Are Fired After Ohio Doctor Is Charged in Murders


And, as election season kicks up, I really don’t blame any of the candidates for grabbing the Purell. Have a great weekend!

Training A Generation Of Gun Safety Advocates: Johns Hopkins Holds Intensive Course For High Schoolers From Around The Country

Inspired by the Parkland students who started a global movement after the mass shooting at their high school, Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, said he wanted to tap into that activist base and help more teenagers become advocates. Public health news focuses on childhood malnutrition, breastfeeding, a new talc trial, caregiving, stillbirths, therapy cows and healthy hearts, as well.

Despite Federal Protections, Rape Victims Still Get Billed For Forensic Exams

Six years ago, Erin was a newly minted graduate of the School of the Art Institute of Chicago, working three part-time jobs and adjusting to life as a non-student. She stopped in for a drink one night at a restaurant in Chicago’s Bucktown neighborhood, where she got into a conversation with a guy. The next thing she remembers clearly was awakening at home the next morning, aching, covered in bruises, with a swollen lip.

She believed she had been raped and went to the local police station to file a report. The police sent her to a hospital emergency room nearby, where a doctor did a medical forensic exam, checking her for injuries and taking evidence from her body and clothes to potentially use in a prosecution case. The exam took hours and made her even more miserable.

Police never made an arrest.

As time passed and Erin tried to move past the assault, she received regular, unwelcome reminders: bills from the hospital and emergency physicians group that treated her. The physicians group eventually sent her bill to a collection agency, and she started receiving nagging phone calls as well. Now 28 and living near Dallas, Erin still gets phone calls and letters a couple of times a year ordering her to pay up.

“When I get that phone call, it’s still so raw. I’m shaking,” Erin said. (Kaiser Health News does not use the full name of people reporting a rape if they request it be withheld.)

For 25 years, the federal Violence Against Women Act has required any state that wants to be eligible for certain federal grants to certify that the state covers the cost of medical forensic exams for people who have been sexually assaulted. Subsequent reauthorizations clarified that these individuals can’t be required to participate with law enforcement to get an exam, nor do they have to pay anything out-of-pocket for it, even if they would be reimbursed later.

Yet for some people who have been raped, the bills keep coming, despite this long-standing federal prohibition and laws in many states that provide additional financial protections.

“There’s often a disconnect between the emergency room personnel that take care of the person and the billing department that sends out the bills,” said Jennifer Pierce-Weeks, CEO of the International Association of Forensic Nurses, professionals who have specialized training in how to evaluate and care for victims of violent crime or abuse.

There is wide variation in how states meet their financial obligations to cover rape exams, sometimes called “rape kits,” that collect evidence of the crime. Many states tap funds they receive under the federal Victims of Crime Act. Others use money from law enforcement or prosecutors’ budgets or other designated options.

What services are covered as part of the rape exam can vary by state as well. Federal rules require that victims be interviewed and examined for physical trauma, penetration or force, and that evidence be collected and evaluated.

But many states include additional services without charging victims, including testing and treatment for pregnancy and sexually transmitted diseases. Some may cover treatment for injuries that victims receive during the assault or for counseling.

Having financial protections for rape victims on the books, however, doesn’t necessarily translate to seamless, no-cost services on the ground.

For instance, New York requires that rape victims receive some services at no charge beyond the federal requirements, including emergency contraception and treatment for STDs, said Christopher Bromson, executive director of the Crime Victims Treatment Center in New York.

Still, last November the New York attorney general’s office announced settlements with seven hospitals that had illegally charged more than 200 rape patients for medical forensic exams, with amounts ranging from $46 to $3,000. In some cases, the hospitals referred the individuals to bill collectors who dunned them for the payments.

Afterward, the Healthcare Association of New York State, a nonprofit group that advocates for better health services, teamed up with the state Department of Health and others to present four webinars for hospital personnel to explain their legal responsibilities.

Karen Roach, the association’s senior director of regulatory affairs and rural health, said the billing problem in New York doesn’t appear widespread.

“Some of these issues arose from greater automation of the billing process,” she said. “Training is needed to flag these cases, to put systems in place not to automatically generate a bill.”

Working with an advocacy group, Erin eventually got the hospital to stop billing her. But the emergency physicians group no longer exists, and her $131.68 bill has been bundled with other debts and resold to different collectors several times, she said. She contacted Kaiser Health News and NPR through the “Bill of the Month” series, which explores exorbitant or baffling medical bills.

When she tells a debt collector that the bill they’re calling about is for services related to rape, “They say, ‘Oh, we’ll fix it,’ but they don’t,” Erin said. “They just sell it again and it just becomes someone else’s problem. But it’s always my problem.”

Despite state and federal laws, many people who were raped wind up paying for some medical services out-of-pocket, even if they have insurance. An analysis of billing records from 1,355 insured female rape victims found that in 2013 they paid an average $948 out-of-pocket for prescription drugs and hospital inpatient or outpatient services during the first 30 days after the assault. That amount represented 14% of total costs, the study found.

“We just assumed that this was only a problem for women who fell through the cracks,” said Kit Simpson, a professor in the department of health care leadership and management at the Medical University of South Carolina in Charleston, who co-authored the study. “But this was a systematic problem.”

Some rape victims don’t want to use their insurance in any case, because they are worried about privacy or safety issues if family members or others find out, advocates said.

The Violence Against Women Act, often referred to as VAWA, is up for reauthorization this year. It’s not clear if a new bill would address these payment issues.

If states don’t certify that they shoulder the cost of rape exams and don’t require victims to participate in the criminal justice system, their funds can be frozen. The Department of Justice declined to comment on enforcement of those VAWA provisions.

Some advocates would like to see the federal definition of what must be included in a no-cost medical forensic exam broadened to such services as testing and medication for pregnancy and sexually transmitted infections, including HIV. Such a move would level the playing field for rape victims across the country, they say.

Janine Zweig, associate vice president of justice policy at the Urban Institute, who co-authored a study examining state payment practices for rape exams, said a federal standard should be considered. “Do we really want it to be about which state you live in?”

DOJ Lawyers Try New Tricks To Undo Obamacare. Will It Work?

Once again, the fate of the Affordable Care Act is before the courts. The health law has traveled all the way to the Supreme Court (twice!) and is highly likely to make another visit.

On that path, the law made a stop Tuesday before a three-judge panel of the 5th Circuit Court of Appeals in New Orleans. Both sides presented arguments, interrupted, at times, by sharp questions from two of the judges.

For those just tuning in, the Trump administration is not defending the nine-year-old ACA.

It instead has sided with the 18 “red” states that seek to have the law overturned.

In doing so, Department of Justice lawyers appeared to use strategies and take positions that sounded somewhat unconventional to a layperson. But are they?

KHN checked with some legal experts for their take.

For starters, this is the third time the administration has changed its position. Does this often happen?

No. It’s unusual for an administration to shift its own legal opinions during the case, say experts.

When the lawsuit was filed, the administration said only the parts of the law tied to a requirement that most Americans carry insurance, the so-called individual mandate, should be tossed. (That’s a pretty big part, which includes protections for people with preexisting conditions.)

The red-state plaintiffs, conversely, argued that the entire law should go, pointing to Congress’ 2017 vote to zero out the individual mandate’s tax penalty. The Supreme Court’s 2012 decision to preserve the ACA hinged on that penalty.

But, last December, a United States district court judge in Texas sided with the states, saying the whole law should be tossed, which would affect provisions as diverse as the preexisting condition protections, Medicaid expansion and calorie counts on restaurant menus.

That’s when the Trump administration shifted its position to agree that, indeed, the whole thing had to go.

And that’s rare.

“You don’t usually say, ‘Oh, never mind,’” said Tom Miller, resident fellow at the conservative American Enterprise Institute. “It’s unusual to do that flip.”

But that’s not the last flip. Another change came up in legal papers filed shortly before the Tuesday hearing and in oral arguments.

DOJ attorney August Flentje told the appeals court that, well, maybe only those provisions of the law that directly affect the plaintiffs — the 18 states — should be struck.

“It’s complicated,” he admitted, calling to mind a similar statement made in 2017 by President Donald Trump amid the repeal debate in Congress: “Nobody knew that health care could be so complicated.”

Even as this legal challenge works its way through the courts, the ACA remains the law of the land. The evolving legal positions, however, are fodder for professors.

“I’m teaching a class this fall and this gives me more material,” said Miller. “But if I had to consistently try to argue a position at the DOJ, I would go crazy.”

So, the government wants to skewer some provisions of the law, but not others — and have those changes apply only in some states. How would that work?  

Questions about that argument came from 5th Circuit Judge Jennifer Walker Elrod, appointed by President George W. Bush in 2007.

The government wants to have it apply “in certain states and strike it down in certain states?” Elrod asked. “The government believes that’s a possibility?”

Unasked but implicit: How would some states enforce the law and not others?

Flentje said “a lot of that would have to get sorted out” but not until after all the appeals in the case are exhausted.

Behind the argument may well be an ongoing dispute in the legal community about whether lower-court judges should make decisions that have nationwide implications, said John Malcolm, director of the conservative Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Still, it would be difficult, he said, for the ACA to be declared unconstitutional in some states, but remain in effect elsewhere.

Beyond that legal question, such a position has financial and policy implications for consumers and state regulators.

It would create a very untenable situation for the rest of the states,” said Mila Kofman, executive director of the DC Health Benefit Exchange Authority, where individuals and small businesses buy health insurance.

Some of the very sickest people in the states where the rules were dropped would likely move to states keeping the preexisting condition protections so they could maintain their insurance, she said. That could drive up costs in those areas.

Arguments Tuesday revolved around whether parts of the law were “severable” from other parts. Did it seem the government wants it both ways — to toss the entire law, but also keep parts of it?

Elrod again queried Flentje.

The government wants the health insurance provisions to go, but “you would leave in the calorie guide?” Elrod asked, referring to the ACA’s requirement that chain restaurants display calorie counts of menu items.

Flentje said the government’s “argument on scope is totally separate from argument on severability.”

She pressed him for clarification: “So, are you saying it’s entirely inseverable, or arguing that some parts can be kept?”

The government’s position remains that “the entire act is not severable,” he replied, adding, however that the judgment could be “narrowed a bit to provisions that injure and impact the plaintiffs.”

He suggested some of those details would still have to be worked out.

“They’ve gone from saying a couple of provisions have to go to the whole thing has to go, to now there are some things we might not have to get rid of,” said Miller. “But they’ve never defined how far back down the ladder to go.”

A ruling by the appeals court isn’t expected for weeks or months, and some questions may well return to the district court.

KHN’s ‘What The Health?’: Could The ACA Really Go Away?


Can’t see the audio player? Click here to listen on SoundCloud.


The Affordable Care Act was back in court again this week — this time before a three-judge panel at the 5th Circuit Court of Appeals in New Orleans.

A lower court ruled last December that the entire ACA is now unconstitutional because Congress in its 2017 tax bill eliminated the tax penalty for failing to maintain health insurance. It appeared that two of the three judges — both appointed by Republicans — seemed sympathetic to the arguments made by the plaintiffs, mostly attorneys general from Republican-led states.

Meanwhile, President Donald Trump on Wednesday signed an executive order calling for major changes in how the government pays for care for people with kidney disease, including making it financially easier for people to donate kidneys.

This week’s panelists are Julie Rovner from Kaiser Health News, Joanne Kenen of Politico, Kimberly Leonard of the Washington Examiner and Alice Miranda Ollstein of Politico.

Among the takeaways from this week’s podcast:

  • Many people who have employer-based insurance and don’t get coverage from the ACA don’t realize that key protections they now enjoy come from that law. These include provisions such as allowing adult children to stay on their parents’ plan until age 26 and barring insurers from using annual coverage caps or lifetime limits.
  • The legal challenge to the ACA by conservative states is a real threat to the law, but the case could still be resolved in a wide variety of ways. It is likely, however, to be appealed to the Supreme Court at some point.
  • The Trump administration’s plan to revamp how kidney patients get care appears to have satisfied many different stakeholders and is being widely hailed — except by the two giant firms that profit from clinic-based kidney dialysis and the status quo.
  • The administration this week had two setbacks on its efforts to slow the rise in prescription drug costs. A court, ruling on procedural grounds, set aside the government’s plan to require drugmakers to add prices to television ads. Also, the administration announced it is shelving its rule that consumers get some of the rebates from drugmakers that pharmacy benefit managers negotiate for insurers.
  • The legal challenge to the administration’s rule that would restrict doctors and other health professionals who receive Title X federal family planning grants from referring women for an abortion has created chaos among those health care providers because the rules have been on and off again. But for groups supporting the right to an abortion, time is the name of the game. They hope to run out the clock and elect a different president in 2020.

Also this week, Rovner interviews University of Michigan law professor Nicholas Bagley about the latest legal threat to the ACA.

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

Julie Rovner: The Washington Post’s “Hospices Go Unpunished for Reported Maggots and Uncontrolled Pain, Watchdog Finds,” by Christopher Rowland

Joanne Kenen: The Los Angeles Times’ “Trump Officials Tell One Court Obamacare Is Failing and Another It’s Thriving,” by Noam Levey

Alice Miranda Ollstein: CNN’s “Exclusive: Joe Biden on Obamacare and Medicare for All: ‘Starting Over Would Be, I Think a Sin,’ by Eric Bradner

Kimberly Leonard: Vox’s “Why I Gave My Kidney to a Stranger — and Why You Should Consider Doing It Too,” by Dylan Matthews

And

Fox News’ “ I’m Becoming a Liver Donor for the Sister I Love, So She Can Live a Long and Healthy Life,” by Ed Henry

To hear all our podcasts, click here.

And subscribe to What the Health? on iTunesStitcherGoogle PlaySpotify, or Pocket Casts.

Federal Appeals Court Takes Up Case That Could Upend U.S. Health System

The fate of the Affordable Care Act is again on the line Tuesday, as a federal appeals court in New Orleans takes up a case in which a lower court judge has already ruled the massive health law unconstitutional.

If the lower court ruling is ultimately upheld, the case, Texas v. United States, has the potential to shake the nation’s entire health care system to its core. Not only would such a decision immediately affect the estimated 20 million people who get their health coverage through programs created under the law, ending the ACA would also create chaos in other parts of the health care system that were directly or indirectly changed under the law’s multitude of provisions, such as calorie counts on menus, a pathway for approval of generic copies of expensive biologic drugs and, perhaps most important politically, protections for people with preexisting conditions.

“Billions of dollars of private and public investment — impacting every corner of the American health system — have been made based on the existence of the ACA,” said a friend-of-the-court brief filed by a bipartisan group of economists and other health policy experts to the 5th Circuit Court of Appeals. Upholding the lower court’s ruling, the scholars added, “would upend all of those settled expectations and throw healthcare markets, and 1/5 of the economy, into chaos.”

Here are five important things to know about the case:

It was prompted by the tax bill Republicans passed in 2017.

The big tax cut bill passed by the GOP Congress in December 2017 eliminated the penalty included in the ACA for failure to maintain health insurance coverage. The lawsuit was filed in February 2018 by a group of Republican attorneys general and two governors. They argued that since the Supreme Court had upheld the ACA in 2012 specifically because it was a valid exercise of Congress’ taxing power, taking the tax away makes the entire rest of the law unconstitutional.

Last December, Judge Reed C. O’Connor agreed with the Republicans. “In some ways the question before the court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote in his decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”

State and federal Democrats are defending the law.

Arguing that the rest of the law remains valid is a group of Democratic attorneys general, led by California’s Xavier Becerra.

“Our argument is simple,” said Becerra in a statement last Friday. “The health and wellbeing of nearly every American is at risk. Healthcare can mean the difference between life and death, financial stability and bankruptcy. Our families’ wellbeing should not be treated as a political football.”

The Democratic-led House of Representatives has also been granted “intervenor” status in the case.

The Trump administration has taken several positions on the lawsuit.

The defendant in the case is technically the Trump administration. Traditionally, an administration, even one that did not work to pass the law in question, defends existing law in court.

Not this time. And it is still unclear exactly what the administration’s position is on the lawsuit. “They have changed their position several times,” Sen. Chris Murphy (D-Conn.) told reporters on a conference call Monday.

When the administration first weighed in on the case, in June 2018, it said it believed that without the tax penalty only the provisions most closely connected to that penalty — including requiring insurers to sell policies to people with preexisting conditions — should be struck down. The rest of the law should stay, the Justice Department argued.

After O’Connor’s ruling, however, the administration changed its mind. In March, a spokeswoman for the Justice Department said it had “determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”

Now it appears the administration is shifting its opinion again. In a filing with the court late last week, Justice Department attorneys argued that perhaps the health law should be invalidated only in the GOP states that are suing, rather than all states. It is unclear how that would work.

Legal scholars — including those who oppose the ACA — consider the case dubious.

In a brief filed with the appeals court, legal scholars from both sides of the fight over the ACA agreed that the lawsuit’s underlying claim makes no sense.

In passing the tax bill that eliminated the ACA’s tax penalty but nothing else, Congress “made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable insurance mandate,” wrote law professors Jonathan Adler, Nicholas Bagley, Abbe Gluck and Ilya Somin. Bagley and Gluck are supporters of the ACA; Adler and Somin have argued against it in earlier suits. “Congress itself — not a court — eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear.”

It could end up in front of the Supreme Court right in the middle of the 2020 election.

Depending on what happens at the appeals court level, the health law could be back in front of the Supreme Court — which has upheld the health law on other grounds in 2012 and 2015 — and land there in the middle of next year’s presidential campaign.

Democrats are already sharpening their rhetoric for that possibility.

“President Trump and Republicans are playing a very dangerous game with people’s lives,” Senate Minority Leader Chuck Schumer told reporters on a conference call Monday.

Murphy said he is most concerned that if the lower court ruling is upheld and the health law struck down, Republicans “won’t be able to come up with a plan” to put the health care system back together.

“Republicans tried to come up with a replacement plan for 10 years, and they couldn’t do it,” he said.