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‘An Arm And A Leg’: Mom Vs. Texas In A Fight To Get Kids’ Hearing Aids Covered

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

When Stephanie Wittels Wachs found out that health insurance in Texas didn’t cover hearing aids for kids, she lobbied to change Texas law. And she won. But the process took more than two years.

“You’re constantly just like bugging everyone you know, like, ‘Please call! Please text! Please call! Please email!’” Wittels Wachs said. “You just become like this broken record.”

It was a grind, but along the way, Wittels Wachs found surprising allies. The bill’s sponsor in the state Senate was Lois Kolkhorst, a deep-red Republican with family members who are deaf.

“You end up getting into bed with people who, you’re like, ‘They’re the worst!’ But you find out they’re not the worst,” Wittels Wachs said.

Season 3’s Episode 1 of “An Arm And A Leg” unveils the moment when Sen. Kolkhorst made an emotional pitch to her fellow lawmakers. It worked. Texas now requires health plans to cover medically necessary hearing aids and cochlear implants for children.

Wittels Wachs has a daughter born hearing-impaired, and she was shocked to learn that the hearing aids her daughter needed would cost $6,000, and not be covered by her health insurance.

But her activism didn’t come from financial need; it came after a personal tragedy. Wittels Wachs’ brother, Harris Wittels — a comic who wrote for TV comedies like “Parks and Recreation” — died of a heroin overdose around the time Wittels Wachs’ daughter turned 1 year old.

“I just needed a place to put a lot of my inability to bring my brother back, my inability to change the fact that my daughter couldn’t hear,” Wittels Wachs said. “All of these things happened at once that I couldn’t fix.”

Wittels Wachs is the host of “Last Day,” a new podcast about the opioid crisis and the author of “Everything Is Horrible and Wonderful,” a memoir about grieving her brother.

Season 3 is a co-production of Kaiser Health News and Public Road Productions.

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

To hear all Kaiser Health News podcasts, click here.

And subscribe to “An Arm and a Leg” on iTunesPocket CastsGoogle Play or Spotify.

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More Vapers Are Making Their Own Juice, But Not Without Risks

MENLO PARK, CALIF. — Danielle Jones sits at her dining room table, studying the recipe for Nerd Lyfe (v2) vape juice. The supplies she’s ordered online are arrayed before her: a plastic jug of unflavored liquid nicotine, a baking scale and bottles of artificial flavors that, combined, promise to re-create the fruity taste of Nerds Rope candy in vapor form.

This is Jones’ first attempt to make her own e-liquid after buying it for the past five years. Jones, 32, wants to be prepared for the worst-case scenario: a ban on the sale of the e-liquids she depends on to avoid cigarettes.

“Even though I haven’t touched a cigarette in five years, the pull is always there. It’s so easy to go and buy a pack. And I don’t want to do that,” she said. “The only route I can see going forward if there is a ban is to try to create the product myself at home.”

As more states, cities and even the federal government consider banning flavored nicotine, thousands of do-it-yourself vapers like Jones are flocking to social media groups and websites to learn how to make e-liquids at home.

Users on the forums — many of whom have been mixing their own e-liquids for years — describe the process as simple, fun, cheap and, with the proper precautions, safe. But if not done carefully, making e-liquids at home may pose risks including accidental exposure to high doses of liquid nicotine, the use of dangerous oil-based flavors and possible product contamination.

“To have people mixing their own e-cigarette liquid is crazy. These are very toxic chemicals,” said Stanton Glantz, a professor of medicine and the director of the Center for Tobacco Control Research and Education at the University of California-San Francisco. “If you drop a little bit of nicotine on your skin, it can send you to the hospital.”

Jones makes her own vape juice and orders the supplies she needs — small scale, plastic containers, a funnel, nicotine mix and artificial flavors — online.(Heidi de Marco/KHN)

Jones holds an unflavored liquid nicotine mix which she ordered online.(Heidi de Marco/KHN)

But Dr. Michael Siegel, a professor of community health sciences at Boston University, said many people are able to make vaping liquids safely at home, by seeking advice from other vapers and following a few safety measures, such as wearing gloves and goggles.

Siegel worries, however, about the risk of contaminated products as some people use the bans as an opportunity to make their own concoctions cheaply and sell them on the black market.

“Who knows what they’re going to put in there?” Siegel said. “This is just what happens when you use prohibition as a regulatory approach. What’s really needed in this situation is actual regulation of these products to try to make them as safe as possible.”

Michigan, Massachusetts, New York, Utah and Rhode Island have passed emergency rules to restrict the sale of e-cigarettes in response to the recent outbreak of vaping-related illnesses, which had sickened 2,051 people and killed 39 as of Nov. 5, according to the Centers for Disease Control and Prevention. In a potentially significant breakthrough, the CDC on Friday said it had identified a link between the mysterious outbreak and vitamin E acetate, an ingredient sometimes added to marijuana-based vaping products.

An additional 220 localities, including San Francisco and Los Angeles County, have passed restrictions on the sale of flavored tobacco products, according to the Campaign for Tobacco Free Kids. Details of an expected federal ban have not been released.

Jones squeezes some of her homemade vape juice into her iridescent purple vape mod.(Heidi de Marco/KHN)

Jones says she has no plans to stop vaping, despite warnings from the Centers for Disease Control and Prevention and mounting evidence that vaping may have serious health risks.(Heidi de Marco/KHN)

Following a rush of new bans in September, a Reddit forum on DIY e-juice saw a spike in membership, the group’s moderator reported. The daily number of new subscribers had long hovered around 30; that number spiked to 336 new subscribers in a single day, followed by more than 200 the next day, and it remained high throughout the month.

The group now has over 52,500 members sharing recipes for flavors such as white chocolate chip cookie, discussing how to make a watermelon that doesn’t taste “soapy,” and asking for tips on how to store supplies safely. Thousands of recipes for e-liquids in myriad flavors can be found in such forums and elsewhere on the internet.

Mike Olson, a resident of Illinois, has stockpiled a multiyear supply of highly concentrated nicotine because he’s so worried about a ban on the sale of flavored vapes. He said he uses gloves and safety goggles while handling it and stores it high up in a closet to keep it away from his dogs.

Not everyone, however, is so scrupulous about safety. A member of the Reddit group, for example, recently posted that he had accidentally sprayed liquid nicotine into his eyes as he tried to remove it from a vial with a syringe. He said his eyes were stinging and turned bright red within a minute, but he washed them out repeatedly. Other members responded with warnings to use protective equipment.

As states, cities and even the federal government consider banning the sale of the e-liquids, vapers like Jones are preparing to make their own liquids at home using social media groups and websites that give detailed instructions.(Heidi de Marco/KHN)

Jones mixes specific artificial flavors, including sweet tart, red licorice and marshmallow to recreate the taste of a Nerds Rope candy in vapor form.(Heidi de Marco/KHN)

Jones holds up the retail version of her favorite vape juice and her homemade version. Making her own e-liquid took her about 15 minutes to make.(Heidi de Marco/KHN)

Poison control centers have received 3,583 calls about exposure to e-cigarette devices and liquid nicotine so far this year, as of Sept. 30, according to the American Association of Poison Control Centers. About 50% of the calls are for children 5 years or younger.

Many of the safety risks of DIY vaping also apply to commercial products. The safety of inhaling food flavorings, for example, has not been established, even in commercially manufactured e-liquids. The Flavor and Extract Manufacturers Association certifies flavored liquids for safety — but only when they are used in food, said John B. Hallagan, a senior adviser to the industry group.

But the U.S. Food and Drug Administration does regulate commercial vaping products to some extent. And while critics say regulation has been inadequate, the agency has nonetheless conducted thousands of inspections of e-cigarette manufacturers and retailers. DIY e-liquids made at home for personal use do not fall under FDA jurisdiction.

Alex Clark, CEO of the Consumer Advocates for Smoke-Free Alternatives Association (CASAA), said he plans to warn the nonprofit’s more than 200,000 members about the dangers of making e-liquid at home.

Clark notes that people should not use flavors found in the baking aisle of a grocery store, such as peppermint oil and lemon extract, because heating and inhaling them can cause lipoid pneumonia, which is potentially life-threatening.

Though a first-time DIY-er, Danielle Jones may have better access than many people to advice on making e-juice safely at home. She works for a company that manufactures the cotton wicking used in vaping devices, sits on the board of CASAA and hosts a YouTube Live show about vaping.

Jones wants to make the process as simple as possible.

Though a first-time DIY-er, Jones may have better access than many people to advice on making e-juice safely at home. She works for a company that manufactures the cotton wicking used in vaping devices, sits on the board of the Consumer Advocates for Smoke-Free Alternatives Association and hosts a YouTube Live show about vaping.(Heidi de Marco/KHN)

She went online to purchase unflavored nicotine that had already been mixed with additives and diluted to her desired concentration. All she needs to do is add the flavors, also purchased online.

“This is complicated,” Jones says, consulting the Nerd Lyfe recipe, which calls for a mix of five flavors: Dragonfruit, Marshmallow, Rainbow Drops, Red Licorice and Sweet and Tart. She opens each bottle and carefully squeezes out a few droplets at a time, her gray hair pulled safely out of her eyes into a loose topknot.

Next comes the nicotine, which resembles a doll-sized plastic jug of gasoline. As she peels off the seal, she gets a little of it on her fingers. But that does not worry her: “This is the same as my commercially available product, and I get that on my fingers all the time.”

The whole process takes Jones about 15 minutes, and the solution is ready to vape. She heads out into her garden, gives the bottle a final shake and squeezes some into her iridescent purple device.

She takes a deep hit, great clouds of vapor billowing out of her nose and mouth. The air smells candy sweet, like inhaling a box of Nerds.

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Medicaid Tweak Might Offer Means To Improve U.S. Maternal Health

When Madavia Johnson gave birth to Donald Ray Dowless III last year, she was hit by a case of severe postpartum anxiety.

She was scared to carry her son downstairs or drive him in a car. She couldn’t manage to continue law school ― and could hardly leave the house ― because she didn’t trust anyone to watch him. Her weight dropped from 140 to 115 pounds.

“It was very stressful for me mentally,” said Johnson, now 29, who lives in Clayton, N.C. And she found it hard to secure medical assistance because her Medicaid coverage ran out just two months after her son’s birth. Public health advocates are pushing to change that.

The difficulties Johnson faced contribute to the United States’ dismal record on maternal and child health. The U.S. is one of only three countries where maternal deaths are on the rise, joining Sudan and Afghanistan, according to the Alliance for Innovation on Maternal Health, a program of the Council on Patient Safety in Women’s Health. And data from the Centers for Disease Control and Prevention indicates that about 700 women die in the U.S. every year from pregnancy complications. Sixty percent of those deaths are deemed preventable.

Democratic presidential candidates such as Sen. Cory Booker of New Jersey and Sen. Kamala Harris of California have talked about those problems on the campaign trail, offering sweeping proposals to address disparities that lead to poor health for many new mothers.

Though maternal and child health experts appreciate the attention to the issue, they also point to what they say is a fairly minor policy option that could make a major difference: increasing access to Medicaid for postpartum women.

“Given that we know that this crisis disproportionately falls on low-income people … Medicaid is a very smart starting place to make sure these people are getting access to needed care,” said Valarie Blake, an associate professor of law at West Virginia University who focuses on health care law.

Take Johnson, for instance. At the time of her pregnancy, she was eligible for Medicaid based on a rule that provides women who otherwise might not qualify under strict income restrictions with coverage during pregnancy and for 60 days after. She gave birth Aug. 14, 2018.

But North Carolina has tight eligibility requirements. It is also one of the 14 states that have not chosen to expand Medicaid under the Affordable Care Act. So, by mid-October, Johnson was no longer “Medicaid eligible.” Because her physician was backed up on appointments, she lost her coverage before she had a “six-week” checkup.

Eventually, she reapplied for Medicaid and was able to qualify because her status had changed since she had a child. But Donald was 8 months old before she saw a doctor.

Experts point to the 60-day timeline as a sort of clock ticking on some severe postpartum medical issues: bleeding, infections, breastfeeding issues and mental health screening, among others.

“If you’re on postpartum Medicaid, you need to get those issues solved right away,” Blake said.

And that 60-day countdown? It is arbitrary, said Dr. Alison Stuebe, a professor of obstetrics and gynecology at the University of North Carolina School of Medicine. It has roots in a general idea across cultures that women need special care after giving birth, but the 60-day mark isn’t based on medicine.

“It comes from the same place as the six-week postpartum visit,” Stuebe said. “We don’t know where it comes from either.”

Stuebe chaired a task force for the American College of Obstetricians and Gynecologists that recommended a different approach. Providers should check women two weeks after giving birth, and then continue holistic care for 12 weeks, eventually transitioning the patient to primary care.

That prolonged contact is essential, she said. “Postpartum depression, if untreated, can begin to spiral,” Stuebe said. “Even if you’re in treatment, after 60 days, you’re not better.”

Johnson, though, was left to wrestle with severe postpartum anxiety on her own.

She sought support from other new moms on Facebook who were coping with anxiety. Since her son had Medicaid for the first year of his life, his pediatrician was a source of help. She also got care through her local health department’s free clinics.

At the federal level, the idea of extending postpartum Medicaid is getting more attention. At a September House hearing, representatives from the American Medical Association, the Icahn School of Medicine and the Kaiser Family Foundation called for expanding postpartum Medicaid as a possible solution to the maternal mortality crisis. The American College of Obstetricians and Gynecologists has also recommended it. (Kaiser Health News is an editorially independent program of the foundation.)

Beyond protecting women during the medically vulnerable time after they deliver, experts think increasing Medicaid could go a long way toward addressing the racial disparities that exist in maternal mortality rates. Black women are two to three times more likely to die from pregnancy-related causes than white women.

“It’s not a silver bullet,” said Jamila Taylor, the director of health care reform at The Century Foundation, a nonpartisan think tank. “There’s racism in the health care system. Coverage is a piece of that, but we need to transform the system.”

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Verma Attacks Critics Of Medicaid Work Requirement, Pushes For Tighter Eligibility

Seema Verma, the Trump administration’s top Medicaid official, Tuesday sharply attacked critics of her plan to force some Medicaid enrollees to work, a policy that led to thousands of people losing coverage in Arkansas.

“We cannot allow those who prefer the status quo to weaponize the legal system against state innovation,” the administrator of the Centers for Medicare & Medicaid Services said in a fiery speech to the nation’s 56 state and territorial Medicaid directors in Washington, D.C.

A federal judge shut down the short-lived work requirement initiative in Arkansas and stopped it from launching in Kentucky last spring. Several states including Indiana, Arizona and New Hampshire that had won federal approval have put their implementation plans on hold pending an appellate court ruling.

Advocates for the poor argue work requirement policies are illegal and unfairly add hurdles to people who qualify for coverage in the federal-state health program.

But those opponents are seeking “to manipulate Medicaid into the prototype of a single-minded, single-payer nirvana – a utopia of open-ended government run health care,” Verma said. “Part of my mission is to fight such under-handed tactics and preserve the right of states to shape your programs in ways that are consistent with the needs of your residents, your cultures and your values. Anything less stifles innovation.”

That would be “a disservice to the millions of people on Medicaid today and those who will need it in the years and decades to come,” she added.

The federal government has approved work requirement plans in 10 states and requests are pending from 10 others. Most of those initiatives are directed at the low-income adults who gained coverage through the Medicaid expansion initiated by the Affordable Care Act.

Verma first announced plans to open the door to work requirements in a speech to Medicaid directors in 2017.

Medicaid – like Medicare – is an open-ended entitlement program, which means federal funding increases as costs and enrollment rise.

In addition to doubling down on the controversial work requirements, Verma renewed her interest in letting states get Medicaid funding through a block grant system. Block grants would give states more flexibility to limit enrollment and enforce eligibility rules, she added.

Critics have said such a change would cut Medicaid funding, limit coverage, hurt beneficiaries and lead to lawsuits.

But Verma said CMS would soon publish guidance to states to allow them to get block grant funding for “certain optional adult populations.”

“Many states have expressed a willingness to be held accountable for improving outcomes in exchange for greater flexibility and budget certainty,” Verma said. “Block grants and per capita cap proposals are two such alternative financing approaches.”

Also Tuesday, CMS issued a proposed rule that would overhaul so-called supplemental payments that many states receive to help their hospitals, nursing homes and doctors get extra funding beyond those received when caring for Medicaid enrollees.

The federal government spent about $48.5 billion on such supplemental payments in 2016 for states.

The payments – as a share of total Medicaid fee-for-service expenditures for health providers – ranged from 1% in North Dakota to 65% in Tennessee, according to a Congressional Research Service report.

CMS and congressional investigators have said the payments allow states to game the system to help bring in additional revenue for these providers without showing how they spend the money.

“I recognize that these schemes often have their roots in self-interested providers, egged on by opportunistic consultants seeking to leverage regulatory loopholes or hide behind a lack of transparency,” Verma said. “I know that most state leaders want to make sure every dollar is supporting value and improving care for Medicaid beneficiaries, and those of you that are doing the right thing have nothing to worry about. We have your back.”

The supplemental Medicaid payment system has come under criticism for many years because of the lack of transparency at the state level. However, efforts to curtail the spending has faced pushback from both states and providers fearful of losing dollars.

Matt Salo, executive director of the National Association of Medicaid Directors, said state officials are open to efforts to bring more transparency but they will be cautious about anything that severely reduces their funding.

“The challenge is how do you do this in a thoughtful, real world way?” Salo said. “We have to do it in a way that is achievable, but that does not jeopardize patient care in the process.”

Verma acknowledged that the uninsured rate among children has grown in the past two years despite the strong economy. She said the solution is to lower health costs to make it easier for their parents to afford private coverage.

Patient advocates have blamed states’ efforts to tighten Medicaid eligibility as a leading factor in the drop in coverage.

Nonetheless, Verma said she would push states to further limit eligibility to make sure only those eligible are getting benefits.

“Lax eligibility practices jeopardize the sustainability of the program,” she said.

CMS will “ensure that states conduct timely redeterminations and make use of appropriate data sources to verify ongoing income eligibility.”

Salo said state Medicaid directors agree with the need for appropriate safeguards to make sure people are not getting assistance who are not eligible. But, he added, forcing enrollees to go through more steps to get and retain coverage will come at a cost of losing people who truly deserve to get help.

“You want government to work for people and want to create a system that if you are eligible it should be easy to get on,” he said. “And if you set barriers and hurdles you will lose a lot of people who are eligible but could not deal with the paperwork.”

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Some Academics Quietly Take Side Jobs Helping Tobacco Companies In Court

In 1998, major tobacco companies reached a historic legal settlement with states that had sued them over the health care costs of smoking-related illnesses. But individual smokers have continued to sue, and to this day the tobacco industry remains tied up in hundreds of court fights with sickened smokers, or with family members who lost a loved one to cancer, heart disease or other smoking-related illness.

These days, tobacco companies no longer try to claim that cigarettes aren’t harmful — in fact, in an ironic reversal, a favorite legal defense in current cases is the argument that nearly everyone was aware of the dangers, even back in the 1950s. To shore up this controversial claim, known as the “common knowledge” defense, tobacco companies often enlist academics as expert witnesses. These professors are frequently historians or political scientists who tend to keep these lucrative side gigs walled off from the rest of their academic work. And their testimony can help tobacco companies limit damages.

Professor John Geer, a political scientist and dean of Arts and Science at Vanderbilt University, has consulted on behalf of tobacco companies from 2004 to at least mid-2018, according to court documents. The fees from legal firms represent as much as a quarter of his annual income.

In a 2014 deposition videotaped just off Vanderbilt’s campus, Geer was then vice provost. He stares straight ahead with an iced coffee at his side, reading glasses perched on his nose. A court reporter swears him in, and he begins to make his case:

“I have studied a lot of polls, and I’m confident of my opinion of the public being broadly aware of the dangers of smoking by the mid-1950s. The data are rock-solid clear,” Geer says in the video.

This argument is part of the “common knowledge” defense, but most of the witnesses who make it are not experts in the history of public health. Geer, for instance, specializes in political science and directs the Vanderbilt Poll. Others who have testified on behalf of tobacco companies are presidential historians or Civil War experts; they include prominent historian and author Stephen Ambrose, who died in 2002 of smoking-related lung cancer.

Stanford University history professor Robert Proctor, who wrote a book about the tobacco industry called Golden Holocaust, says most of these academics have never published any research about cigarettes because their opinions can’t stand up to peer review.

“They erase history by acting as if the things we know today have always been known,” he said.

Proctor is among a smaller group of academics who testify in opposition to tobacco companies, on behalf of smokers dealing with cancer, chronic lung disease and heart problems.

‘Under The Radar’

In his book, Proctor lists the professors known to have worked on behalf of tobacco companies. He says most expert witnesses avoid drawing attention to themselves.

“Experts often don’t even put it down on their CVs, their resumes — it’s absent,” Proctor said. “That’s one of the problems. It’s flying under the radar.”

Geer makes no mention of his consulting work — which pays more than $300 an hour — in his 17-page curriculum vitae. That document does include a detailed account of his pursuits on and off campus, down to individual guest lectures and media appearances.

“It’s not relevant,” Geer told Nashville attorney Kenneth Byrd during one deposition. “If I published something from this, I’d list it.”

Even the most active expert witnesses for the tobacco industry have not published research on tobacco. They include the University of Tennessee’s Robert Norrell, who studies race and the American South; and Elizabeth Cobbs, a historian at Texas A&M and Michael Schaller, a professor emeritus at the University of Arizona, who both focus on foreign relations. Their names are among 50 that appear in a database kept by Ramses Delafontaine, a historian who wrote a book about his peers working for the tobacco industry.

In depositions, some claim to make more than $100,000 a year for their work on tobacco litigation. None accepted requests for interviews.

Geer did issue a statement to Vanderbilt’s student newspaper, Hustler, saying he’s not a supporter of “Big Tobacco.”

“I truly understand and deeply respect those students who disagree with me having taken on this kind of work,” Geer told Hustler. “I do see their perspective and value it. Perhaps my fondest hope is that we all appreciate that disagreement itself is often an engine for change.”

Interpreting The Polls

The tobacco industry’s professors are primarily historians. Their expert reports pull newspaper clippings and excerpts from school textbooks to show judges that the smoker in question probably ran across warnings about cigarettes. And many of the industry’s witnesses lean heavily on the same Gallup poll from 1954 that indicates 90% of Americans had heard smoking could cause lung cancer.

But in 1998, Gallup told the tobacco industry to stop using this polling out of context. First, the company sent a letter to historian Lacy Ford at the University of South Carolina. (Ford had testified on behalf of R.J. Reynolds, citing the poll.) Then Gallup officials presented a paper at a conference calling Ford’s interpretation an “egregious error” that overlooked the difference between being aware of danger and actually believing smoking can cause a deadly illness.

“A review of historical Gallup surveys suggests that there was, in fact, a high degree of public doubt and confusion about the dangers of smoking in the 1950s and 60s. There may have been widespread awareness of the controversy over smoking, but public belief that smoking was linked to lung cancer trailed far behind this general awareness of the controversy,” the Gallup officials wrote in their conference paper.

Gallup points to its other surveys during the same period that found when people said smoking was “harmful,” they were thinking of less serious risks, like coughing, not cancer.

Reached for comment about the continued reliance on the 1954 poll, Gallup general counsel Steve O’Brien — who wrote the paper from 1998 — declined to wade back into the controversy.

“The fraternity that litigates these smoking cases are all aware of the history — or if they were doing their job right, they are,” O’Brien wrote in an email.

For his part, Vanderbilt’s Geer said in a 2014 deposition that he had never seen the letter to Ford or the Gallup warning, though both are publicly available as part of the Truth Tobacco Industry Documents. That’s an archival database, well known to public health researchers, of internal tobacco company documents maintained by the University of California-San Francisco.

Geer had never used it.

“I know of it broadly, but I’ve never spent any time on [the database],” Geer said.

Occasionally, the professors who work with the tobacco industry’s lawyers will be rejected as experts. In one case from late 2011, Geer was barred from testifying over questions about his methodology.

‘A Denial Of History’

Geer’s videotaped deposition in 2014 was part of Woodruff v. R.J. Reynolds Tobacco Company, et al., and he also submitted a report summarizing his research and findings. The plaintiff in that suit, a Florida widow, argued that her husband’s bladder cancer was caused by his smoking since he was a kid — as much as three packs a day. The case was ultimately settled for an undisclosed amount as part of a larger settlement.

The suit was one of thousands in Florida stemming from a former class-action verdict that was overturned but allowed many smokers to make individual claims using the same jury findings.

Tobacco companies win some and lose some. But the “common knowledge” defense has proven effective at limiting their liabilities, says Stanford’s Proctor. It’s difficult for a judge or jurors to cast their minds back to the 1950s, suspending all they know now about the dangers of smoking, thanks to 65 years of accumulated science.

But Proctor maintains that the 1950s were “another world.”

Proctor points out that most doctors used to be smokers. Some cigarettes were even branded as “doctor recommended.” Proctor calls it “a denial of history” to gloss over how broadly smoking was accepted, and how actively tobacco companies contributed to the confusion.

Proctor, along with Middle Tennessee State University historian Louis Kyriakoudes, is among a small number of professors who work on behalf of dying smokers or their surviving spouses.

Both have published extensively on smoking and list on their CVs work as an expert witness against tobacco companies.

“I’m proud of what I do,” Kyriakoudes said.

Tobacco companies deserve the chance to defend themselves, he says. But he accuses the professors they hire of donning “intellectual blinders” in order to claim everyone knew that one day smoking would kill them.

“People tell themselves that it’s the smoker’s fault for smoking, and why should somebody be suing a tobacco company anyway?” he said. “That plays into a very strong bias that blames the victim of addiction.”

Reputational Harm

Plaintiff attorneys will often question the industry’s defense experts about what they’ve disclosed to their academic employer about the outside work. And it’s clear from their answers that the academics do not widely advertise their work, even if they disclose to their employer that they consult with law firms, which write the actual checks.

But Allan Brandt, a medical historian and former dean of the Graduate School of Arts and Sciences at Harvard University, says institutions of higher education should be concerned about this vague disclosure — since the professor’s faculty appointment is often the credential used to qualify them as an expert in a lawsuit.

“I think it can harm the reputation of our own scholarship and our universities when this isn’t really put out in the open,” he said.

Many professors are called to be expert witnesses, in multiple types of cases. But Brandt says he hasn’t found any defense experts in these tobacco cases who would also be willing to defend their claims (about the awareness of smoking’s dangers) in an academic setting.

He says scholars can’t have it one way on campus and another in court.

“This is the ultimate public forum,” Brandt said. “The ideas that are presented there really ought to be subject to the kind of scrutiny and peer scrutiny that is so characteristic and a desirable value of universities.”

This story is part of a partnership that includes Nashville Public RadioNPR and Kaiser Health News.

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Must-Reads Of The Week From Brianna Labuskes

Happy Friday! Tis the season of getting wretched colds, and I blame daylight savings as any reasonable person would. So, we’re going to make this short and sweet as I clutch my tissues and tea. Buckle up!

Election results in Kentucky (and Virginia, really) added to the ever-deepening narrative that health care can be a big political winner for Dems and an Achilles’ heel for Republicans these days. Although the GOP talking point is that Gov. Matt Bevin (who technically hasn’t conceded yet) was extremely unpopular, it’s hard to miss that Medicaid expansion was a top issue in the race. Andy Beshear, who claimed victory on Tuesday, has vowed to rescind all of Bevin’s plans for Medicaid work requirements when he takes office.

In Virginia, many lawmakers ran on health care as well (like promising to protect preexisting conditions coverage and tackling gun control regulations), helping the Dems secure the Legislature for the first time in decades.

But health care isn’t always enough to boost Dems to a win, it seems. Democrat Jim Hood failed to upset Lt. Gov. Tate Reeves, a Republican, despite Hood’s promises to expand Medicaid to about 300,000 of the state’s most needy residents.

Curiously, attacks over abortion did not seem to hurt Democrats in either Virginia or Kentucky, even though the issue loomed large in both states.

CNN: Kentucky, Virginia And Mississippi Elections: 3 Takeaways

Politico: Why Democrats Keep Winning On Health Care

In a quick sidenote on Medicaid in the Deep South: Georgia’s governor has released a long-awaited health care plan that includes a limited Medicaid expansion with work requirements. As the requirements falter elsewhere, it will be interesting to test case to watch.

The Associated Press: Georgia Governor Unveils Medicaid Plan With Work Requirement

Now over to the presidential primary race: As predicted, lots of pundits, rivals, and others have had lots of thoughts on Massachusetts Sen. Elizabeth Warren’s plan to pay for “Medicare for All,” mostly landing on: It’s just not realistic. For her numbers to add up (which they do), everything pretty much has to fall into place perfectly. Which… in a nation’s capitol known more for its bitter partisan gridlock and deference to deep-pocketed lobby interests than for its smooth roads and sunny skies, well… no one is holding their breath that this would pass.

The Washington Post Fact Checker: Warren’s Plan To Pay For Medicare-For-All: Does It Add Up?

The New York Times: Elizabeth Warren’s ‘Medicare For All’ Math

Elsewhere on the election trail, Sen. Bernie Sanders (I-Vt.) released an ambitious plan to tack the immigration crisis. Among other things, he would scrap President Donald Trump’s “public charge” rule and ensure that anyone in the country regardless of immigration status was covered by his health system.

Boston Globe: Bernie Sanders Unveils Ambitious Immigration Plan That Offer A Path For Citizenship And Dismantles ICE

Tension over patents came to a head this week as the Trump administration sued Gilead over its HIV prevention drug, the development of which relied heavily on taxpayer-funded research. This fight has been bubbling up because Gilead has been raking in billions from the drug and yet hasn’t paid the CDC any royalties.

The Washington Post: U.S. Sues Drugmaker Gilead Sciences Over Patent On Truvada For HIV Prevention

And in case you’re interested in the background of it all (you should be! It’s a fascinating case), the Post did a deep-dive back in March.

The Washington Post: An HIV Treatment Cost Taxpayers Millions. The Government Patented It. But A Pharma Giant Is Making Billions.

Speaking of news from the administration, there was so much of it this week!

Let’s start with the court decision to block its expanded “conscience rule” for health care personnel who don’t want to participate in certain care due to moral reasons. The judge denounced the rule, saying it was arbitrary and unconstitutionally coercive. He also wrote that the “stated justification for undertaking rule making in the first place — a purported ‘significant increase’ in civilian complaints relating to the conscience provisions — was factually untrue.”

The New York Times: Judge Voids Trump-Backed ‘Conscience Rule’ For Health Workers

That wasn’t the only legal blow the administration suffered: elsewhere, a judge placed a temporary restraining order on a Trump rule that would have required visa-seekers to prove they can pay for health coverage before they’re allowed to live in the country.

The Associated Press: US Judge Blocks Trump’s Health Insurance Rule For Immigrants

In a separate court decision, a federal judge ruled that the U.S. government must provide mental health services to migrant families who may have been traumatized by being separated under the zero tolerance policy. The judge referred to previous federal cases that found that governments can be held liable when with “deliberate indifference” they place people in dangerous situations. This bit from The New York Times is interesting: In the past, the “state-created danger” doctrine has been applied when a police officer ejected a person from a bar late at night in very cold weather, or when a public employer failed to address toxic mold that caused workers to fall ill.

The New York Times: U.S. Must Provide Mental Health Services To Families Separated At Border

From news outside the courts, HHS is seeking to roll back Obama-era protections that keep foster care and adoption services from discriminating against LGBTQ families.

The New York Times: Adoption Groups Could Turn Away L.G.B.T. Families Under Proposed Rule

And in the midst of several public health crises, Trump has picked his choice to head the FDA: Dr. Stephen Hahn of the MD Anderson Cancer Center in Texas. If confirmed, Hahn will almost immediately have his hands full with the vaping epidemic, as well as continued fallout from the opioid crisis, not to mention public outrage over the high cost of drugs.

The Associated Press: Trump Picks Cancer Specialist From Texas Hospital To Run FDA

In case you missed it: Stat did one of the more interesting profiles on Hahn a bit ago, if you want to read up on his background.

Stat: Frontrunner To Lead FDA, Dogged By Controversies, Has Developed Knack For Confronting Them

On the topic of FDA, a look at how a controversy over a chemical that sterilizes medical equipment became a prime example of just how wrong things can go when agencies operate as silo-ed bureaucracies.

Politico: How The FDA And EPA’s Failure To Communicate Could Put Patients In Danger

Ahead of an anticipated federal ban on e-cigarettes, Juul has announced that it will end the sale of mint flavored pods. A study came out this week that found that the mint flavored ones have become more and more popular among young vapers.

The New York Times: Juul Ends E-Cigarette Sales Of Mint-Flavored Pods

Often times, when studying a disease it can be the people who don’t get it that hold the answers. That might be true with one woman who should have gotten early onset Alzheimer’s but didn’t start showing symptoms until decades later. Researchers say a mutation that the woman had protected her from the devastating disease. Learning how it did that could help scientists replicate the process for those who don’t have the mutation.

The New York Times: Why Didn’t She Get Alzheimer’s? The Answer Could Hold A Key To Fighting The Disease

It’s not always the memory that goes first. For those with frontotemporal dementia, it’s often the areas of the brain that control personality that are affected first. The resulting behavior changes can be heartbreaking.

The New York Times: The Loneliness Of Frontotemporal Dementia

And in the miscellaneous file for the week:

  • Documents show how Walgreens was in a unique position to raise giant red flags about the opioid epidemic at its height. But the company failed to do so.

The Washington Post: At Height Of Crisis, Walgreens Handled One In Five Of The Most Addictive Opioids

  • When one woman’s baby was born three months prematurely, she’d thought she’d taken care of everything that was needed to get her daughter covered under her insurance. Turns out, that wasn’t the case, and by the time she got the $898,984 bill, it was too late to fix it.

ProPublica: How One Employer Stuck A New Mom With A $898,984 Bill For Her Premature Baby

  • We often think of breath tests as being infallible ways to prevent drunken driving. But many of the machines that are stocked in police stations across the country are calibrated incorrectly. For some, that can change the whole course of their future.

The New York Times: These Machines Can Put You In Jail. Don’t Trust Them.

That’s it from me! Everyone stay healthy and don’t forget to get your flu shot.

Related Topics

Aging Cost and Quality Elections Health Care Costs Health Industry Insurance Medicaid Public Health States The Health Law Uninsured

Leapfrog Issues Semi-Annual Hospital Safety Ratings Report

State Highlights: 911 Operators Cited As Lynchpins in NYC Medical Fraud Ring Affecting Thousands; Oregon’s ERs Reporting Striking Rise In Number Of Child Sexual Abuse Cases

Christian Pregnancy Centers Mull Contraception Options For Patients As They Vie For Newly Available Federal Funds

Red States Go Back To The Drawing Board As Roadblocks Derail Medicaid Work Requirements

Flavor Bans Multiply, But Menthol Continues to Divide

As states and communities rush to ban the sale of flavored tobacco products linked to vaping, Carol McGruder races from town to town, urging officials to include what she calls “the mother lode of all flavors”: menthol.

McGruder, co-chair of the African American Tobacco Control Leadership Council, has tried for years to warn lawmakers that menthol attracts new smokers, especially African Americans. Now that more officials are willing to listen, she wants them to prohibit menthol cigarettes and cigarillos, not just e-cigarette flavors, to reduce smoking among blacks.

McGruder and other tobacco control researchers are using the youth vaping epidemic — and the vaping-related illnesses sweeping the country — as an opportunity to take on menthol cigarettes, even though they are not related to the illnesses.

“We started to see that vaping is something that we could leverage in order to deal with this whole menthol issue,” said Valerie Yerger, an associate professor of health policy at the University of California-San Francisco.

Menthol is a substance found in mint plants that creates a cooling sensation and masks tobacco flavor in both e-cigarettes and cigarettes. Those properties make menthol more appealing to first-time smokers and vapers, even as they pose the same health threats as non-menthol products and may be harder to quit.

Nearly nine out of 10 African American smokers prefer mentholated cigarettes, according to the Centers for Disease Control and Prevention.

But even as tobacco control activists see opportunity, some African Americans, including smokers, fear discrimination. They predict that banning menthol will lead to a surge in illicit sales of cigarettes and result in additional policing in communities that already face tension with law enforcement.

Joseph Paul, director of political and civic affairs at City of Refuge Los Angeles, a church with about 17,000 members in Gardena, Calif., spoke at a board of supervisors meeting in September against a proposed flavor ban in Los Angeles County that was adopted a week later.

If officials truly wanted to end youth vaping, he later told California Healthline, the ordinance should have targeted only vape flavors and exempted adult smokers and their menthol cigarettes.

“Menthol cigarettes are very popular in the black community, my people smoke menthol cigarettes,” he said.

The Los Angeles County ban prohibits sales but not possession of flavored e-cigarette products, menthol cigarettes and chewing tobacco in the unincorporated area of the county, inhabited by about 1 million people. Shops have until April to clear their shelves of flavored tobacco products.

Paul warned that people will start selling menthol cigarettes illegally: “It’s supply and demand.” That will make the community more vulnerable to police harassment, he said.

In New York City, when officials proposed a ban on menthol cigarettes earlier this year, which has yet to be acted upon, the Rev. Al Sharpton made a similar argument against the measure: Banning menthol would lead to greater tensions with police in black communities.

“I think there is an Eric Garner concern here,” the civil right rights activist told The New York Times in July, referring to the well-known case of a 43-year old black man who died in a chokehold in 2014 while being arrested by New York City police on suspicion of selling single cigarettes.

The flavor bans that are currently sweeping the country have more to do with e-cigarettes than menthol cigarettes.

That’s because a mysterious vaping-related illness has sickened more than 2,050 people nationwide and led to at least 39 deaths. In California, at least 150 residents have fallen ill and at least three have died, according to the California Department of Public Health.

Most of those illnesses have been associated with vaping cannabis products, and yet politicians’ urge to adopt flavored tobacco bans continues.

In July 2016, Chicago became the first major U.S. city to ban menthol cigarette sales, but it limited the prohibition to within 500 feet of schools.

Of the more than 200 communities in the country that restrict or ban the sale of flavored tobacco, fewer than 60 include restrictions on menthol cigarettes, according to the Campaign for Tobacco-Free Kids.

Aspen, Colo., will ban all flavored nicotine products, including menthol cigarettes, effective Jan. 1. A few communities in Minnesota already have such bans in place. In California, close to 50 communities restrict or ban flavored tobacco products; of those, more than 30 include restrictions on menthol cigarettes. Notably, San Francisco banned menthol cigarettes along with all flavored tobacco products in 2018, before banning all vapes and e-cigarettes earlier this year.

At the national level, the Food and Drug Administration banned the sale of flavors in combustible cigarettes in 2009, but exempted menthol. Last November, the agency proposed a ban on menthol-flavored combustible cigarettes, calling their use among youths “especially troubling,” but it has not yet taken action.

Then the Trump administration said in September it would soon ban all flavored e-cigarette products, but it may now be backing away from banning mint and menthol.

Menthol, which was first added to cigarettes in the 1920s, is as old-school as it gets when it comes to flavored tobacco, yet it hasn’t prompted action in the way that vape flavors such as cotton candy and strawberry-melon have. That’s because vaping was embraced by a specific population: affluent white teens, Yerger said.

Big Tobacco aggressively pushed menthol cigarettes on black youths in the 1950s and 60s, and now some people consider Kools and Newports part of black culture, McGruder said.

McGruder and others point out that the tobacco industry has supported and funded civil rights groups and causes, forming relationships with prominent black leaders such as Sharpton. Big Tobacco acknowledged that it has contributed to Sharpton’s organization, the National Action Network, and similar groups.

McGruder said it’s difficult for the African American community to contradict respected male civil rights and religious leaders, so when they argue that menthol bans will lead to criminalization, the community listens.

But Bobby Sheffield, a pastor and vice president of the Riverside County Black Chamber of Commerce, said the criminalization argument is a scare tactic.

“We’re not trying to have anyone incarcerated because they have this product in their possession,” Sheffield said. His organization, which represents local businesses, started campaigning this year for menthol bans in California’s Inland Empire, including the cities of Riverside, San Bernardino and Perris.

Some smokers understand the need to keep tobacco out of the hands of children, but they don’t think it’s fair to include menthol cigarettes.

“It’s stupid. Now they’re trying to act like menthol cigarettes are the problem. These have been around for a long time,” said April Macklin of Sacramento, who smokes Benson & Hedges menthols. She smoked when she was younger, quit, and started again three years ago.

The city of Sacramento will ban the sale of flavored tobacco, including menthol cigarettes, effective Jan. 1.

Macklin, 53, said she might just quit because she won’t smoke anything other than menthol. But even with a ban in place, she doubts menthol cigarettes will be gone for good. “I’m sure people will figure something out,” she said.

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

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