Tag: The Health Law

Banning Noncompete Contracts for Medical Staff Riles Hospitals

Dr. Jacqui O’Kane took a job with a hospital in southern Georgia in 2020, as the lone doctor in a primary care clinic in a small town that’s a medically underserved area. She soon attracted nearly 3,000 patients.

But she said the hospital pressed her to take more new patients, so she had to work nights and weekends — not ideal for the mother of two young daughters. She thought about opening her own practice in town, which would give her more control over her schedule.

The problem was that her three-year contract included a noncompete clause barring her from practicing within 50 miles of the hospital for two years after it ended.

So, she has decided to join a practice in South Carolina. That means she and her husband will sell their house, move hundreds of miles, and enroll their children in a new school.

“It sucks,” she said. “I know my patients very well, and I feel like I’m being forced to abandon them. But I can’t stay in this job because it’s unhealthy for me to work this much.”

In January, the Federal Trade Commission proposed to end predicaments like O’Kane’s by prohibiting noncompete clauses in employment contracts. “The freedom to change jobs is core to economic liberty and to a competitive, thriving economy,” said Lina Khan, the FTC chairperson.

The proposed rule would prohibit employment contract provisions that block employees or contractors from working for a competing employer when they move on, or from starting a competing business. Such contracts typically bar people from working within a certain geographic area for a period after the job ends.

The FTC estimates that 30 million workers are bound by noncompete clauses. It says ending those provisions would boost economic competition, reduce prices, and increase workers’ earnings overall by up to $296 billion a year.

Eliminating noncompete contracts would allow doctors to practice wherever their services are needed, which would improve patients’ access to care. They say it would free them to speak out about unsafe conditions for patients, since they wouldn’t have to worry about getting fired and not being able to continue working in their community.

But the FTC’s proposal faces resistance from employers in all industries, including hospitals and private equity-backed medical groups that employ thousands of physicians, nurse practitioners, and other medical professionals.

It’s about money for them, too. They say eliminating noncompetes would drive up the cost of hospital care because hospitals would have to pay physicians more to keep them. They also say noncompete clauses are necessary to protect proprietary information and investments in employee training, and to prevent employees from taking clients and patients with them when they leave.

Business and hospital groups are likely to sue to block the rule, arguing that Congress hasn’t authorized the commission to regulate noncompete clauses. While there is bipartisan support in Congress for legislation that would restrict noncompete clauses and authorize FTC action, the bill hasn’t advanced; similar legislation stalled in past years.

Health care industry groups hope to block any change with the argument that the FTC lacks statutory authority to regulate nonprofit, or tax-exempt, hospitals, which account for nearly 60% of all U.S. community hospitals. In the proposed rule, the FTC acknowledged that entities not conducting business for profit may not be subject to the rule because they are exempt from coverage under the Federal Trade Commission Act, the law that gives the agency its authority.

“The rule would create an unlevel playing field because we compete with nonprofit and public hospitals that wouldn’t be subject to it,” said Chip Kahn, CEO of the Federation of American Hospitals, which represents for-profit hospital systems.

But other experts aren’t sure the FTC lacks authority over nonprofits. While the FTC Act exempts nonprofits, the commission has acted many times under the Sherman Act and the Clayton Act, federal antitrust laws used to block anti-competitive conduct by nonprofit hospital systems. It’s not clear whether the FTC will clarify this issue before it finalizes the rule.

“We fully support having the noncompete ban apply to all hospitals,” said Dr. Jonathan Jones, president of the American Academy of Emergency Medicine, half of whose members are bound by noncompetes.

California, North Dakota, and Oklahoma already ban enforcement of noncompete clauses for all employees, while six other states prohibit enforcement of noncompete clauses for physicians. Even in states without bans, judges have invalidated noncompetes when they found them to be overbroad or unreasonable.

But it can cost tens of thousands of dollars in legal fees to challenge a noncompete clause, and other employers may not want to take the risk of hiring a person in the middle of a legal fight, said Luke Campbell, a Seattle attorney who represents physicians.

The FTC rule also would bar the use of nondisclosure or training repayment agreements in employment contracts if they functioned as de facto noncompetes.

Hospitals often require nurses to sign training repayment agreement provisions, called TRAPs, which nursing groups say lock nurses into jobs by demanding they pay as much as $20,000, for what’s essentially job orientation, if they leave before two years. National Nurses United, a labor union, wants the FTC to explicitly prohibit TRAPs.

As of last year, nearly three-quarters of all U.S. physicians were employed by hospital systems or other companies, with many working under noncompete agreements. A 2018 survey found that nearly half of primary care physicians in California, Illinois, Georgia, Pennsylvania, and Texas were bound by noncompetes.

Private equity-owned staffing firms such as TeamHealth, Envision Healthcare, and Sound Physicians, which provide emergency physicians and other medical professionals to work in hospitals, commonly use noncompete provisions. None of those three companies agreed to talk about their employment contracts. As for-profit employers, noncompete clauses in their contracts clearly would be barred even if their employees were working in nonprofit hospitals.

Hospitals, insurers, and physician-owned medical groups also use noncompetes in employing doctors and other medical professionals.

Hospital-based doctors — emergency physicians, anesthesiologists, hospitalists, radiologists, and pathologists — refute the industry’s argument that they would take patients or proprietary information with them.

“We don’t have any trade secrets and we don’t have the capability of stealing patients because we don’t have our own patient referral base,” said Dr. Robert McNamara, the chair of emergency medicine at Temple University.

Instead, he said, noncompetes are a way for the physician staffing firms to lock in their contracts with hospitals. “The private equity group can say to the hospital, ‘You might not like what we’re doing, but if you get rid of us, every single one of your doctors must be replaced,’” McNamara said.

Dr. Vanessa Urbina, a general practice physician in central Florida, also worries about the impact on patients. She left a corporate-owned medical practice in Altamonte Springs last year because of what she said was an abusive environment. Hobbled by a noncompete agreement she signed forbidding her from practicing within 15 miles of the clinic, she opened her own primary care clinic in rural Mount Dora, 19 miles away.

She had to stay in the area because of a child custody agreement. Fighting the noncompete cost her $25,000 in legal fees and lost income. Even though she now must drive farther to transport her daughter to school and back, she’s happier in her new practice. But she’s angry she can’t take care of her former patients.

“They forced me to abandon my patients,” she said. “Now they have to wait three months for an appointment. Noncompetes should be illegal.”

Temp Nurses Cost Hospitals Big During Pandemic. Lawmakers Are Now Mulling Limits.

To crack down on price gouging, proposed legislation in Missouri calls for allowing felony charges against health care staffing agencies that substantially raise their prices during a declared emergency.

A New York bill includes a cap on the amount staffing agencies can charge health care facilities. And a Texas measure would allow civil penalties against such agencies.

These proposed regulations — and others in at least 11 more states, according to the American Staffing Association industry trade group — come after demand for travel nurses, who work temporary assignments at different facilities, surged to unprecedented levels during the worst of the covid-19 pandemic.

Hospitals have long used temporary workers, who are often employed by third-party agencies, to help fill their staffing needs. But by December 2021, the average weekly travel nurse pay in the country had soared to $3,782, up from $1,896 in January 2020, according to a Becker’s Hospital Review analysis of data from hiring platform Vivian Health. That platform alone listed over 645,000 active travel nurse jobs in the final three months of 2022.

Some traveling intensive care unit nurses commanded $10,000 a week during the worst of the pandemic, prompting burned-out nurses across the country to leave their hospital staff jobs for more lucrative temporary assignments. Desperate hospitals that could afford it offered signing bonuses as high as $40,000 for nurses willing to make multiyear commitments to join their staff instead.

The escalating costs led hospitals and their allies around the country to rally against what they saw as price gouging by staffing agencies. In February 2021, the American Hospital Association urged the Federal Trade Commission to investigate “anticompetitive pricing” by agencies, and, a year later, hundreds of lawmakers urged the White House to do the same.

No substantial federal action has occurred, so states are trying to take the next step. But the resulting regulatory patchwork could pose a different challenge to hospitals in states with rate caps or other restrictive measures, according to Hannah Neprash, a University of Minnesota health care economics professor. Such facilities could find it difficult to hire travel nurses or could face a lower-quality hiring pool during a national crisis than those in neighboring states without such measures, she said.

For example, Massachusetts and Minnesota already had rate caps for temporary nurses before the pandemic but raised and even waived their caps for some staffing agencies during the crisis.

And any new restrictions may meet stiff resistance, as proposed rate caps did in Missouri last year.

As the covid omicron variant wave began to subside, Missouri legislators considered a proposal that would have set the maximum rate staffing agencies could charge at 150% of the average wage rate of the prior three years plus necessary taxes.

The Missouri Hospital Association, a trade group that represents 140 hospitals across the state, supported the bill as a crackdown on underhanded staffing firms, not on nurses being able to command higher wages, spokesperson Dave Dillon said.

“During the pandemic there were staffing companies who were making a lot of promises and not necessarily delivering,” Dillon said. “It created an opportunity for both profiteering and for bad actors to be able to play in that space.”

Nurses, though, decried what they called government overreach and argued the bill could make the state’s existing nursing shortage worse.

Theresa Newbanks, a nurse practitioner, asked legislators to imagine the government attempting to dictate how much a lawyer, electrician, or plumber could make in Missouri. “This would never be allowed,” she testified to the committee considering the bill. “Yet, this is exactly what is happening, right now, to nurses.”

Another of the nearly 30 people who testified against the bill was Michelle Hall, a longtime nurse and hospital nursing leader who started her own staffing agency in 2021, in part, she said, because she was tired of seeing her peers leave the industry over concerns about unsafe staffing ratios and low pay.

“I felt like I had to defend my nurses,” Hall later told KHN. Her nurses usually receive about 80% of the amount she charges, she said.

Typically about 75% of the price charged by a staffing agency to a health care facility goes to costs such as salary, payroll taxes, workers’ compensation programs, unemployment insurance, recruiting, training, certification, and credential verification, said Toby Malara, a vice president at the American Staffing Association trade group.

He said hospital executives have, “without understanding how a staffing firm works,” wrongly assumed price gouging has been occurring. In fact, he said many of his trade group’s members reported decreased profits during the pandemic because of the high compensation nurses were able to command.

While Missouri lawmakers did not pass the rate cap, they did make changes to the regulations governing staffing agencies, including requiring them to report the average amounts charged per health care worker for each personnel category and the average amount paid to those workers. Those reports will not be public, although the state will use them to prepare its own aggregate reports that don’t identify individual agencies. The public comment period on the proposed regulations was scheduled to begin March 15.

Hall was not concerned about the reporting requirements but said another of the changes might prompt her to close shop or move her business out of state: Agencies will be barred from collecting compensation when their employees get recruited to work for the facility where they temp.

“It doesn’t matter all the money that I have put out prior, to onboard and train that person,” Hall said.

Dillon called that complaint “pretty rich,” noting that agencies routinely recruit hospital staff members by offering higher pay. “Considering the premium agencies charge for staff, I find it hard to believe that this risk isn’t built into their business model,” he said.

Of course, as the pandemic has waned, the demand for travel nursing has subsided. But pay has yet to drop back to pre-pandemic levels. Average weekly travel nurse pay was $3,077 in January, down 20% year over year but still 62% higher in January 2020, according to reporting on Vivian Health data by Becker’s.

With the acute challenges of the pandemic behind hospitals, Dillon said, health system leaders are eyeing proactive solutions to meet their ongoing workforce challenges, such as raising pay and investing in the nursing workforce pipeline.

A hospital in South Carolina, for example, is offering day care for staffers’ children to help retain them. California lawmakers are considering a $25-per-hour minimum wage for health care workers. And some hospitals have even created their own staffing agencies to reduce their reliance on third-party agencies.

But the momentum to directly address high travel nurse rates hasn’t gone away, as evidenced by the legislative push in Missouri this year.

The latest proposal would apply to certain agencies if a “gross disparity” exists between the prices they charge during an emergency and what they charged prior to it or what other agencies are currently charging for similar services and if their earnings are at least 15% higher than before the emergency.

Malara said he doesn’t have much of a problem with this year’s bill because it gives agencies the ability to defend their practices and pricing.

Kentucky last year applied its existing price gouging rules to health care staffing agencies. The rules, which set criteria for acceptable prices, allow increases driven by higher labor costs. Malara said if the Missouri bill gains momentum he will point its sponsor to that language and ask her to clarify what constitutes a “gross disparity” in prices.

The sponsor of the bill, Missouri state Sen. Karla Eslinger, a Republican, did not respond to requests for comment on the legislation.

Hall said she is opposed to any rate caps but is ambivalent about Missouri’s new proposal. She said she saw agencies raising their prices from $70 an hour to over $300 while she worked as a hospital nursing leader at the height of the pandemic.

“All these agencies that were price gouging,” Hall said, “all they were doing was putting that money in their own pockets. They weren’t doing anything different or special for their nurses.”

New CDC Opioid Guidelines: Too Little, Too Late for Chronic Pain Patients?

Jessica Layman estimates she has called more than 150 doctors in the past few years in her search for someone to prescribe opioids for her chronic pain.

“A lot of them are straight-up insulting,” said the 40-year-old, who lives in Dallas. “They say things like ‘We don’t treat drug addicts.’”

Layman has tried a host of non-opioid treatments to help with the intense daily pain caused by double scoliosis, a collapsed spinal disc, and facet joint arthritis. But she said nothing worked as well as methadone, an opioid she has taken since 2013.

The latest phone calls came late last year, after her previous doctor shuttered his pain medicine practice, she said. She hopes her current doctor won’t do the same. “If something should happen to him, there’s nowhere for me to go,” she said.

Layman is one of the millions in the U.S. living with chronic pain. Many have struggled to get opioid prescriptions written and filled since 2016 guidelines from the Centers for Disease Control and Prevention inspired laws cracking down on doctor and pharmacy practices. The CDC recently updated those recommendations to try to ease their impact, but doctors, patients, researchers, and advocates say the damage is done.

“We had a massive opioid problem that needed to be rectified,” said Antonio Ciaccia, president of 3 Axis Advisors, a consulting firm that analyzes prescription drug pricing. “But the federal crackdowns and guidelines have created collateral damage: patients left high and dry.”

Born of an effort to fight the nation’s overdose crisis, the guidance led to legal restrictions on doctors’ ability to prescribe painkillers. The recommendations left many patients grappling with the mental and physical health consequences of rapid dose tapering or abruptly stopping medication they’d been taking for years, which carries risks of withdrawal, depression, anxiety, and even suicide.

In November, the agency released new guidelines, encouraging physicians to focus on the individual needs of patients. While the guidelines still say opioids should not be the go-to option for pain, they ease recommendations about dose limits, which were widely viewed as hard rules in the CDC’s 2016 guidance. The new standards also warn doctors about risks associated with rapid dose changes after long-term use.

But some doctors worry the new recommendations will take a long time to make a meaningful change — and may be too little, too late for some patients. The reasons include a lack of coordination from other federal agencies, fear of legal consequences among providers, state policymakers hesitant to tweak laws, and widespread stigma surrounding opioid medication.

The 2016 guidelines for prescribing opioids to people with chronic pain filled a vacuum for state officials searching for solutions to the overdose crisis, said Dr. Pooja Lagisetty, an assistant professor of medicine at the University of Michigan Medical School.

The dozens of laws that states passed limiting how providers prescribe or dispense those medications, she said, had an effect: a decline in opioid prescriptions even as overdoses continued to climb.

The first CDC guidelines “put everybody on notice,’’ said Dr. Bobby Mukkamala, chair of the American Medical Association’s Substance Use and Pain Care Task Force. Physicians reduced the number of opioid pills they prescribe after surgeries, he said. The 2022 revisions are “a dramatic change,” he said.

The human toll of the opioid crisis is hard to overstate. Opioid overdose deaths have risen steadily in the U.S. in the past two decades, with a spike early in the covid-19 pandemic. The CDC says illicit fentanyl has fueled a recent surge in overdose deaths.

Taking into account the perspective of chronic pain patients, the latest recommendations try to scale back some of the harms to people who had benefited from opioids but were cut off, said Dr. Jeanmarie Perrone, director of the Penn Medicine Center for Addiction Medicine and Policy.

“I hope we just continue to spread caution without spreading too much fear about never using opioids,” said Perrone, who helped craft the CDC’s latest recommendations.

Christopher Jones, director of the CDC’s National Center for Injury Prevention and Control, said the updated recommendations are not a regulatory mandate but only a tool to help doctors “make informed, person-centered decisions related to pain care.”

Multiple studies question whether opioids are the most effective way to treat chronic pain in the long term. But drug tapering is associated with deaths from overdose and suicide, with risk increasing the longer a person had been taking opioids, according to research by Dr. Stefan Kertesz, a professor of medicine at the University of Alabama-Birmingham.

He said the new CDC guidance reflects “an extraordinary amount of input” from chronic pain patients and their doctors but doubts it will have much of an impact if the FDA and the Drug Enforcement Administration don’t change how they enforce federal laws.

The FDA approves new drugs and their reformulations, but the guidance it provides for how to start or wean patients could urge clinicians to do so with caution, Kertesz said. The DEA, which investigates physicians suspected of illegally prescribing opioids, declined to comment.

Smith has experienced pain in her left leg since a nerve was cut during surgery years ago. But in December her pharmacy stopped filling her prescriptions for painkillers.(Andy Miller / KHN)

The DEA’s pursuit of doctors put Danny Elliott of Warner Robins, Georgia, in a horrible predicament, said his brother, Jim.

In 1991, Danny, a pharmaceutical company rep, suffered an electric shock. He took pain medicine for the resulting brain injury for years until his doctor faced federal charges of illegally dispensing prescription opioids, Jim said.

Danny turned to doctors out of state — first in Texas and then in California. But Danny’s latest physician had his license suspended by the DEA last year, and he couldn’t find a new doctor who would prescribe those medications, Jim said.

Danny, 61, and his wife, Gretchen, 59, died by suicide in November. “I’m really frustrated and angry about pain patients being cut off,” Jim said.

Danny became an advocate against forced drug tapering before he died. Chronic pain patients who spoke with KHN pointed to his plight in calling for more access to opioid medications.

Even for people with prescriptions, it’s not always easy to get the drugs they need.

Pharmacy chains and drug wholesalers have settled lawsuits for billions of dollars over their alleged role in the opioid crisis. Some pharmacies have seen their opioid allocations limited or cut off, noted Ciaccia, with 3 Axis Advisors.

Rheba Smith, 61, of Atlanta, said that in December her pharmacy stopped filling her prescriptions for Percocet and MS Contin. She had taken those opioid medications for years to manage chronic pain after her iliac nerve was mistakenly cut during surgery, she said.

Smith said she visited nearly two dozen pharmacies in early January but could not find one that would fill her prescriptions. She finally found a local mail-order pharmacy that filled a one-month supply of Percocet. But now that drug and MS Contin are not available, the pharmacy told her.

“It has been a horrible three months. I have been in terrible pain,” Smith said.

Many patients fear a future of constant pain. Layman thinks about the lengths she’d go to in order to get medication.

“Would you be willing to buy drugs off the street? Would you be willing to go to an addiction clinic and try to get pain treatment there? What are you willing to do to stay alive?” she said. “That is what it comes down to.”

A Health-Heavy State of the Union

The Host

Health care was a recurring theme throughout President Joe Biden’s 2023 State of the Union address on Capitol Hill this week. He took a victory lap on recent accomplishments like capping prescription drug costs for seniors on Medicare. He urged Congress to do more, including making permanent the boosted insurance premium subsidies added to the Affordable Care Act during the pandemic. And he sparred with Republicans in the audience — who jeered and called him a liar — over GOP proposals that would cut Medicare and Social Security.

Meanwhile, abortion rights advocates and opponents are anxiously awaiting a federal court decision out of Texas that could result in a nationwide ban on mifepristone, one of two drugs used in medication abortion.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Sarah Karlin-Smith of the Pink Sheet.

Among the takeaways from this week’s episode:

  • President Joe Biden’s State of the Union address emphasized recent victories against high health care costs, like Medicare coverage caps on insulin and out-of-pocket caps on prescription drug spending. Biden’s lively, informal exchange with lawmakers over potential cuts to Medicare and Social Security seemed to steal the show, though the political fight over cutting costs in those entitlement programs is rooted in a key question: What constitutes a “cut”?
  • Biden’s calls for bipartisanship to extend health programs like pandemic-era subsidies for Affordable Care Act health plans are expected to clash with conservative demands to slash federal government spending. And last year’s Senate fights demonstrate that sometimes the opposition comes from within the Democratic Party.
  • While some abortion advocates praised Biden for vowing to veto a federal abortion ban, others felt he did not talk enough about the looming challenges to abortion access in the courts. A decision is expected soon in a Texas court case challenging the future use of mifepristone. The Trump-appointed judge’s decision could ban the drug nationwide, meaning it would be barred even in states where abortion continues to be legal.
  • The FDA is at the center of the abortion pill case, which challenges its approval of the drug decades ago and could set a precedent for legal challenges to the approval of other drugs. In other FDA news, the agency recently changed policy to allow gay men to donate blood; announced new food safety leadership in response to the baby formula crisis; and kicked back to Congress a question of how to regulate CBD, or cannabidiol, products.
  • In drug pricing, the top-selling pharmaceutical, Humira, will soon reach the end of its patent, which will offer a telling look at how competition influences the price of biosimilars — and the problems that remain for lawmakers to resolve.

Also this week, Rovner interviews Kate Baicker of the University of Chicago about a new paper providing a possible middle ground in the effort to establish universal health insurance coverage in the U.S.

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

Julie Rovner: The New York Times’ “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters,” by Stephen I. Vladeck

Alice Miranda Ollstein: Politico’s “Mpox Is Simmering South of the Border, Threatening a Resurgence,” by Carmen Paun

Sarah Karlin-Smith: KHN’s “Decisions by CVS and Optum Panicked Thousands of Their Sickest Patients,” by Arthur Allen

Rachel Cohrs: ProPublica’s “UnitedHealthcare Tried to Deny Coverage to a Chronically Ill Patient. He Fought Back, Exposing the Insurer’s Inner Workings,” by David Armstrong, Patrick Rucker, and Maya Miller

Also mentioned in this week’s podcast:

To hear all our podcasts, click here.

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GOP House Opens With Abortion Agenda

The Host

Having spent its entire first week choosing a speaker, the Republican-led U.S. House finally got down to legislative business, including passing two bills backed by anti-abortion groups. Neither is likely to become law, because they won’t pass the Senate nor be signed by President Joe Biden. But the move highlights how abortion is sure to remain a high-visibility issue in the nation’s capital.

Meanwhile, as open enrollment for the Affordable Care Act nears its Jan. 15 close, a record number of people have signed up, taking advantage of renewed subsidies and other help with medical costs.

This week’s panelists are Julie Rovner of KHN, Margot Sanger-Katz of The New York Times, Alice Miranda Ollstein of Politico, and Sarah Karlin-Smith of the Pink Sheet.

Among the takeaways from this week’s episode:

  • The House now has a speaker after 15 rounds of full-chamber roll call votes. That paved the way for members to be sworn in, committee assignments to be made, and new committee chairs to be named. Cathy McMorris Rodgers (R-Wash.) and Jason Smith (R-Mo.) will be taking the helm of major health committees.
  • McMorris Rodgers will lead the House Energy and Commerce Committee; Smith will be the chairman of Ways and Means. Unlike McMorris Rodgers, Smith has little background in health issues and has mostly focused on tax issues in his public talking points. But Medicare is likely to be on the agenda, which will require the input of the chairs of both committees.
  • One thing is certain: The new GOP-controlled House will do a lot of investigations. Republicans have already reconstituted a committee to investigate covid-19, although, unlike the Democrats’ panel, this one is likely to spend time trying to find the origin of the virus and track where federal dollars may have been misspent.
  • The House this week began considering a series of abortion-related bills — “statement” or “messaging” bills — that are unlikely to see the light of day in the Senate. However, some in the caucus question the wisdom of holding votes on issues like these that could make their more moderate members more vulnerable. So far, bills have had mostly unanimous support from the GOP. Divisions are more likely to emerge on topics like a national abortion ban. Meanwhile, the Title X program, which pays for things like contraception and testing for sexually transmitted infections, is becoming a hot topic at the state level and in some lawsuits. A case in Texas would restrict contraception availability for minors through this program.
  • It’s increasingly clear that abortion pills are going to become an even bigger part of the abortion debate. On one hand, the FDA has relaxed some of the risk evaluation and mitigation strategies (REMS) from the prescribing rules surrounding abortion pills. The FDA puts these extra restrictions or safeguards in place for certain drugs to add additional protection. Some advocates say these pills simply do not bring that level or risk.
  • Anti-abortion groups are planning protests in early February at large pharmacies such as CVS and Walgreens to try to get them to walk back plans to distribute abortion pills in states where they are legal.
  • A growing number of states are pressuring the Department of Health and Human Services to allow them to import cheaper prescription drugs from Canada — or, more accurately, importing Canada’s price controls. While this has long been a bipartisan issue, it has also long been controversial. Officials at the FDA remain concerned about breaking the closed supply chain between drugs being manufactured and delivered to approved U.S. buyers. The policy is popular, however, because it promises lower prices on at least some drugs.
  • Also in the news from the FDA: The agency granted accelerated approval for Leqembi for the treatment of Alzheimer’s disease. Leqembi is another expensive drug that appears to work, but also carries big risks. However, it is generally viewed as an improvement over the even more controversial Alzheimer’s drug Aduhelm. Still to be determined is whether Medicare — which provides insurance to most people with Alzheimer’s — will cover the drug.
  • As the Affordable Care Act enrolls a record number of Americans, it is notable that repealing the law has not been mentioned as a priority for the new GOP majority in the House. Rather, the top health issue is likely to be how to reduce the price of Medicare and other health “entitlement” programs.

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

Julie Rovner: The Washington Post’s “Social Security Denies Disability Benefits Based on List With Jobs From 1977,” by Lisa Rein

Margot Sanger-Katz: Roll Call’s “Providers Say Medicare Advantage Hinders New Methadone Benefit,” by Jessie Hellmann

Alice Miranda Ollstein: The New York Times’ “Grant Wahl Was a Loving Husband. I Will Always Protect His Legacy.” By Céline Gounder

Sarah Karlin-Smith: KHN’s “Hospitals’ Use of Volunteer Staff Runs Risk of Skirting Labor Laws, Experts Say,” by Lauren Sausser

Also mentioned in this week’s podcast:

To hear all our podcasts, click here.

And subscribe to KHN’s What the Health? on SpotifyApple PodcastsStitcherPocket Casts, or wherever you listen to podcasts.

KHN’s ‘What the Health?’: Medicaid Machinations

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The lame-duck Congress is back in Washington with a long list of bills it would like to pass and a short time to do it before Republicans take over the House majority in January. How many health-related items can be accomplished depends largely on how much money Congress agrees to spend overall, as it hashes out the annual federal spending bills.

Meanwhile, some of the remaining states that have not yet expanded the Medicaid program may be warming up to the idea, particularly North Carolina and Kansas, which have Democratic governors and Republican legislatures.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Rachel Cohrs of Stat, and Sarah Karlin-Smith of the Pink Sheet.

Among the takeaways from this week’s episode:

  • How much the lame-duck Congress manages to accomplish will partly hinge on whether congressional leaders opt for an omnibus spending bill — which would complete the unfinished spending bills through September 2023 — versus a continuing resolution, which would simply extend what’s already on the books into sometime in the new year. Bottom line: Health priorities are competing for a pot of money, but it’s unclear how large that pot will be. Some insiders describe it as a traffic jam.
  • At the top of that list are FDA reforms that didn’t make it into the prescription drug user-fee reauthorization bill that passed this year. Lawmakers fought to keep that measure “clean,” leaving the door open to tackle some leftover issues. What, if anything, will make the final cut is yet to be seen.
  • Other things on the lame-duck list include reversing a 4% scheduled cut to Medicare providers’ reimbursements; weighing proposals related to pandemic preparedness; addressing Medicaid funding for U.S. territories; addressing the end of the public health emergency; and scrutinizing telehealth policy.
  • Among the states that have yet to expand Medicaid under the Affordable Care Act, action is possible by those with a Democratic governor and Republican legislature — Kansas and North Carolina, in particular. Advocates are targeting such places because coverage for hundreds of thousands of people could be at risk, especially as the official end of the public health emergency looms. The financial well-being of some rural and safety-net hospitals also is in jeopardy.
  • Georgia is poised to expand Medicaid eligibility somewhat, but only to people who can prove they worked or did community service for 80 hours per month. This comes after a federal judge ruled that the Biden administration’s move to cancel a Trump administration-approved waiver was “arbitrary and capricious.” The only other Medicaid work requirement that has taken effect, in Arkansas, ended up taking coverage away from thousands of people who were eligible and working, due to its complicated reporting system.
  • Anti-abortion groups seem keen on finding creative ways to take aim at the so-called abortion pill, which recently became the most common method of ending pregnancy in the United States. Medication abortions are much more difficult for anti-abortion groups to target, because women do not have to go to a clinic to receive the drugs.
  • One lawsuit sought to force the FDA to rescind its approval of mifepristone, dating to 2000. Anti-abortion groups say the agency didn’t have the authority to approve the drug through the “expedited” pathway it chose.
  • Another strategy from anti-abortion groups claims that the use of abortion pills is contaminating wastewater and groundwater; they seek to deploy environmental laws to block the use of the drugs.
  • Despite Americans’ desire to put the covid-19 pandemic in the rearview mirror, the virus may have other plans. The Biden administration wants another $10 billion before the end of the year to pay for its anti-covid campaign, although even Democrats in Congress are not pushing hard for that funding. Meanwhile, governments and social media platforms are still struggling to address covid misinformation and disinformation.

Also this week, Rovner interviews KHN’s Fred Clasen-Kelly, who reported and wrote the latest KHN-NPR “Bill of the Month,” about a mysterious mishap during minor surgery. If you have an enormous or mystifying medical bill you’d like to share with us, you can do that here.

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

Julie Rovner: Stat’s “Resistance to FDA’s Opioid-Disposal Plan Raises Concerns About CADCA, a Powerful Advocacy Group,” by Lev Facher

Alice Miranda Ollstein: ProPublica and The New York Times’ “She Wanted an Abortion. A Judge Said She Wasn’t Mature Enough to Decide,” by Lizzie Presser

Rachel Cohrs: The New Yorker’s “How Hospice Became a For-Profit Hustle,” by Ava Kofman

Sarah Karlin-Smith: The New York Times’ “Jail Is a Death Sentence for a Growing Number of Americans,” by Shaila Dewan

Also mentioned in this week’s episode:

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KHN’s ‘What the Health?’: Finally Fixing the ‘Family Glitch’

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The Biden administration this week issued regulations aimed at fixing the Affordable Care Act’s “family glitch,” which has prevented families that can’t afford their employer insurance from getting subsidized coverage from the insurance marketplaces. The Obama administration had decided that only Congress could fix the glitch.

Meanwhile, open enrollment for Medicare begins Oct. 15, when beneficiaries can join or change private Medicare Advantage plans or stand-alone prescription drug plans. For the first time, Medicare Advantage plans are poised to enroll more than half of the Medicare population despite allegations that many of the largest insurers are getting billions of dollars in overpayments from the federal government.

This week’s panelists are Julie Rovner of KHN, Margot Sanger-Katz of The New York Times, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Rachel Cohrs of Stat.

Among the takeaways from this week’s episode:

  • The “family glitch” arose because under ACA rules, people offered insurance through their workplace generally don’t qualify for subsidies if they instead purchase a policy on the marketplace — unless their work insurance is deemed unaffordable. That determination was made based on the cost of insurance for the individual worker, not what a family policy would cost. Since family policies are considerably more expensive than individual policies, they are often unaffordable for workers. The new federal regulation will take into account the cost of the family coverage.
  • Democrats were aware of this problem even as they passed the ACA. But this is an expensive change, and they were desperate to keep the cost of the bill below $1 trillion. They had promised to fix the “family glitch” but had not done it.
  • Many health policy experts believed the fix would need to be made by Congress, but the Biden administration opted to do it through regulation. Whether the regulation will face legal challenges from critics is not clear, but opponents may have a hard time proving they are being harmed by the new rule and have standing to bring a lawsuit.
  • Many seniors are happy with their Medicare Advantage plans, which often offer more benefits than traditional Medicare at a reduced cost. Enrollees, however, generally must stay within a plan’s network of health care providers.
  • Questions have been raised about federal payments to the plans. They were initially envisioned as a way to save money because lawmakers thought they would be more efficient than the government-run plan. But the benchmark formula for the plans now gives them more than 100% of what the government would pay for an average person in traditional Medicare, and the government pays the plans bonuses for taking on sicker patients.
  • Those bonuses have been the subject of numerous government investigations, whistleblower allegations, and some fraud lawsuits that allege the plans misidentify enrollees’ medical conditions to get higher reimbursements from the government. But while some watchdog groups have raised concerns, the Centers for Medicare & Medicaid Services has not made major changes to the reimbursement formulas, partly because Medicare Advantage has high patient satisfaction and bipartisan support on Capitol Hill.
  • As lawmakers get closer to Election Day next month, Democrats have trumpeted their support for abortion rights and hit hard at Republicans who supported the Supreme Court’s decision to overturn Roe v. Wade, which had guaranteed access across the country. The Democrats, however, have not been as active in making a case for their passage of the Inflation Reduction Act, which offered several popular changes, including caps on out-of-pocket drug expenses for Medicare beneficiaries, a provision allowing Medicare to begin negotiating the price of some drugs, and an extension of enhanced subsidies for people who buy insurance on the ACA marketplaces.
  • Democrat John Fetterman’s campaign for a U.S. Senate seat from Pennsylvania has been slowed down a bit by his recovery from a stroke he had earlier this year. He is back on the trail and is making live appearances, but he uses a computer device to help him translate conversations into written language because he says his auditory processing has not healed. Critics have said he should be more transparent with his medical records. Disability advocates have hit back against the criticism of Fetterman.

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

Julie Rovner: KHN’s “If You’re Worried About the Environment, Consider Being Composted When You Die,” by Bernard J. Wolfson

Margot Sanger-Katz: KHN’s “Baby, That Bill Is High: Private Equity ‘Gambit’ Squeezes Excessive ER Charges From Routine Births,” by Rae Ellen Bichell

Joanne Kenen: The Food & Environmental Reporting Network’s “For One Historically Black California Town, a Century of Water Access Denied,” by Teresa Cotsirilos 

Rachel Cohrs: Stat’s “A Miniscule New HHS Office Has a Mammoth Goal: Tackling Environmental Justice,” by Sarah Owermohle

Also mentioned in this week’s episode:

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

KHN’s ‘What the Health?’: Judge Takes Aim at the Affordable Care Act’s Preventive Care Benefits

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The same federal judge in Texas who tried — unsuccessfully — to strike down the entire Affordable Care Act in 2018 has ruled that portions of the health law’s preventive care benefit package are unconstitutional. But it will be a long time, with many more court actions, before it becomes clear whether the decision will change how the law works.

Meanwhile, the U.S. Department of Veterans Affairs, after several weeks of deliberations, has decided to make abortions available to patients and some dependents in some circumstances. And in Michigan, a closely watched ballot measure on abortion scheduled for this fall may not get a vote after all because of a printing problem.

This week’s panelists are Julie Rovner of KHN, Alice Miranda Ollstein of Politico, Sarah Karlin-Smith of the Pink Sheet, and Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico.

Among the takeaways from this week’s episode:

  • A decision announced this week by a federal judge in Texas could have a major impact on a popular provision of the Affordable Care Act that gives consumers no-cost access to a host of preventive care tests and treatments. Judge Reed O’Connor said the group that determines which services are eligible for that coverage does not have proper authorization from Congress.
  • O’Connor also ruled that employers with deep religious beliefs should not have to provide HIV prevention medications to workers if the employers believe those drugs encourage improper sexual behavior. The judge has not yet announced how he will suggest both these issues be remedied.
  • The Biden administration announced Thursday that it is overturning a rule implemented by the Trump administration that restricted immigrants’ ability to apply for permanent status in the U.S. if they had received government subsidies.
  • The U.S. Department of Veterans Affairs said it will now provide limited abortions for veterans and their eligible dependents at VA facilities in states that have restricted access to the procedure. The care will be available to veterans and dependents if the pregnancy is a result of rape or incest or is jeopardizing the life of the woman.
  • In Michigan, a state judge ruled that a 1931 ban on abortions is unconstitutional, but that is expected to be appealed. In the meantime, abortion-rights supporters are seeking to get a ballot measure that would guarantee access approved for consideration in the November election. The supporters have enough signatures, but the measure was drafted with a typographical error that could invalidate it. A court is expected to rule on the issue soon.
  • New covid-19 booster immunizations are rolling out to health centers and pharmacies across the country. The administration is encouraging anyone 12 or older (who hasn’t had a vaccination in the past two months) to get the shot. Administration health experts suggest this is the beginning of an effort to simplify the vaccination schedule and hope that most people will need only one shot a year after this. But that goal will depend on how the virus continues to mutate.
  • The Senate is back at work on Capitol Hill, and the House will return next week. The lawmakers still must come up with funding for the fiscal year that begins Oct. 1. Most people expect that they will turn to a temporary funding measure for the short term.
  • Three senators are out with covid, and one key Republican, Sen. Richard Burr of North Carolina, is absent because of a hip replacement. His absence comes at an inopportune time because he has worked with Democrats to try to push through a bill that extends the FDA’s ability to charge user fees to drugmakers to help pay for the agency’s assessments of drugs. He has also helped pull together a bill with Sen. Patty Murray (D-Wash.) to fund more efforts for public health preparedness.

Also this week, Rovner interviews KHN’s Lauren Sausser, who reported and wrote the latest KHN-NPR “Bill of the Month” installment, about a patient in need of a biopsy who did all the right things in advance and still got stuck with a giant bill. If you have an enormous or outrageous medical bill you’d like to send us, you can do that here.

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

Julie Rovner: KHN’s “When Does Life Begin? As State Laws Define It, Science, Politics, and Religion Clash,” by Sarah Varney

Alice Miranda Ollstein: The New Yorker’s “When Private Equity Takes Over a Nursing Home,” by Yasmin Rafiei

Joanne Kenen: ProPublica’s “‘The Human Psyche Was Not Built for This,’” by Marilyn W. Thompson and Jenny Deam

Sarah Karlin-Smith: Stat’s “Study Raises Concerns About the Effectiveness of the Monkeypox Vaccine,” by Helen Branswell

Also mentioned in this week’s episode:

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KHN’s ‘What the Health?’: Manchin Makes a Deal

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The Democrats’ on-again, off-again budget bill is apparently on again, and it’s bigger than expected. In a surprise move, Senate Majority Leader Chuck Schumer announced an agreement with Sen. Joe Manchin (D-W.Va.) to expand the scope of the limited health bill that was headed to the Senate floor to also include climate change and some tax increases for corporations and certain wealthy Americans.

But the measure is still a fraction of what President Joe Biden and Democratic leaders had hoped for and does not include such high-profile health priorities as new Medicare benefits or expanded eligibility for insurance for people in states that did not opt to expand the Medicaid program.

Meanwhile, the Biden administration restored anti-discrimination protections in health care for LGBTQ+ individuals that the Trump administration had rolled back, while the Affordable Care Act returned to court in Texas, this time to hear a case challenging the health law’s requirement for preventive benefits.

This week’s panelists are Julie Rovner of KHN, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, Sarah Karlin-Smith of the Pink Sheet, and Alice Miranda Ollstein of Politico.

Among the takeaways from this week’s episode:

  • The blockbuster announcement late Wednesday that Manchin had changed his mind and was willing to support a broader party-line bill to fund some of the president’s key priorities did not unveil any major changes to the health provisions agreed to earlier. Manchin previously said he’d sign on to Senate Democrats’ plan to allow Medicare to negotiate drug prices and keep the enhancements to premium subsidies for health policies purchased on the Affordable Health Care marketplaces.
  • The outline of the new Senate legislation, however, would extend those premium enhancements for three years, a year longer than what Manchin and Senate Majority Leader Chuck Schumer had previously agreed on. That means a renewal of those subsidies will not become a 2024 campaign issue.
  • Several big-ticket health items that progressives had sought in this legislation were left off, including new funding for home health care and a popular provision to lower consumers’ out-of-pocket costs for insulin. A separate bill would do that, but it has hit roadblocks in the Senate.
  • Passage of the bill is not assured. First, the Senate parliamentarian must confirm that its provisions are allowed under complicated rules that allow the Senate to pass spending and tax measures without the threat of a filibuster. Under that process, all 50 of the senators in the Democratic caucus must support the bill and the vice president would have to cast the tie-breaking vote. It’s not yet clear whether all senators are on board or if they can all be present for a vote in the next week. Several, including Manchin and Sen. Dick Durbin (D-Ill.), have announced they have covid and are in isolation.
  • Biden has recovered from his covid infection, according to the White House physician. While recuperating, he was careful to show that he continued to work and was doing quite well. And he made a point of noting that federal efforts he helped spearhead to make more vaccine and treatment options easily available would help others beat back an infection, too.
  • Some critics, however, suggested that Biden’s message about working while recuperating sent a bad signal because patients should be encouraged to rest and recuperate.
  • A new survey by KFF found that 4 in 10 parents of children under age 5 say they will not get their kids vaccinated against covid. This appears to be a byproduct of parents assuming the disease is not as threatening to little ones, their confusion about the studies of the vaccine, and their long wait for a vaccine.
  • In a surprising twist, it appears that Congress may pass a bill enshrining the right to gay marriage but not be able to pass a bill guaranteeing a woman’s right to contraception. The contraception bill has passed the House but has hit a roadblock in the Senate. Conservatives are concerned about complaints from anti-abortion groups who think some forms of contraception cause abortion.
  • A federal judge in Texas who has ruled against portions of the ACA before is presiding over a challenge to the law’s provision that guarantees insured people have no out-of-pocket costs for preventive care. The case could make its way to the Supreme Court, which has turned aside other efforts to undermine the ACA. But the power center has shifted in the court, so it’s not clear how the justices might look at this case.

Also this week, Rovner interviews Dr. Céline Gounder, an infectious disease doctor, a KFF senior fellow, and KHN’s editor-at-large for public health, about the ongoing monkeypox outbreak in the U.S. and around the world.

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

Julie Rovner: NPR’s “Because of Texas Abortion Law, Her Wanted Pregnancy Became a Medical Nightmare,” by Carrie Feibel

Alice Miranda Ollstein: The Hill’s “Top FDA Tobacco Official Leaving for Philip Morris Job,” by Nathaniel Weixel

Joanne Kenen: Science’s “Blots on a Field? A Neuroscience Image Sleuth Finds Signs of Fabrication in Scores of Alzheimer’s Articles, Threatening a Reigning Theory of the Disease,” by Charles Piller

Sarah Karlin-Smith: NPR’s “Drugmakers Are Slow to Prove Medicines That Got a Fast Track to Market Really Work,” by Sydney Lupkin

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KHN’s ‘What the Health?’: Drug Price Bill Is a Go in the Senate

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President Joe Biden is the latest top Washington official to test positive for covid-19, following Vice President Kamala Harris, Speaker of the House Nancy Pelosi, and Senate Majority Leader Chuck Schumer. But work continues, particularly on a Senate bill that could, for the first time, allow Medicare to negotiate prescription drug prices and cap seniors’ out-of-pocket medication costs.

Meanwhile, both supporters and opponents of abortion rights are struggling to find their footing in the wake of the Supreme Court’s overturn of the federal right to abortion in Roe v. Wade.

This week’s panelists are Julie Rovner of KHN, Shefali Luthra of The 19th, Joanne Kenen of the Johns Hopkins Bloomberg School of Public Health and Politico, and Rachel Cohrs of Stat.

Among the takeaways from this week’s episode:

  • Although some Democrats and many political pundits are criticizing the Senate for scaling back the president’s Build Back Better agenda to be mostly a health care bill, the proposal in that bill to allow Medicare to negotiate prices for some drugs would be a major change that drugmakers have successfully fought for two decades.
  • The bill, which hasn’t been released in full, will include only those provisions that have been approved by Sen. Joe Manchin (D-W.Va.), because all 50 members of the Democratic caucus in the Senate will be needed to pass the bill. In addition to allowing price negotiations on 10 drugs in the first year, the legislation would penalize drugmakers that raise prices above the rate of inflation and limit Medicare beneficiaries’ out-of-pocket drug spending to $2,000 a year.
  • The bill is also expected to include provisions to extend for an additional two years the enhanced subsidies for premiums on health policies purchased through the Affordable Care Act’s marketplace. Those details have not yet been released.
  • Progressives have been dismayed at the administration’s lackluster answer to the Supreme Court’s decision overturning Roe. Even as the White House notes that there are limits to what the president can do, the administration has been more cautious than many expected in announcing how it plans to respond. For example, immediately after the Supreme Court released the decision, the administration said it would guard women’s access to medication abortions — but there has been little follow-up.
  • The Indiana doctor who treated a 10-year-old rape victim seeking an abortion is threatening a defamation lawsuit against the state’s attorney general, who incorrectly said on national television that she didn’t file the necessary paperwork.
  • The case of that 10-year-old has put anti-abortion groups on the defensive and suggested that they are split on how to handle situations like this. Some leaders suggest the child should have gone forward with the pregnancy, while other groups said people who have been raped should not have to carry a baby to term.
  • Texas Attorney General Ken Paxton is continuing his push to restrict abortion. The state basically shut down most abortions last September with a strict law that allows community members to sue doctors and others who help a woman get an abortion beyond six weeks of pregnancy. Now, Paxton is challenging the Biden administration’s statement that federal law entitles people seeking emergency care because of pregnancy problems to get an abortion. Paxton has said that federal law does not preempt the state’s restrictions.
  • Texas’ hard line on abortion could have an economic impact within the state. Some young people and companies are not in favor of the abortion policies and some are threatening to leave the state.

Also this week, Rovner interviews Dr. Jack Resneck Jr., a California dermatologist who is the new president of the American Medical Association.

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

Julie Rovner: KHN’s “Conservative Blocs Unleash Litigation to Curb Public Health Powers,” by Lauren Weber and Anna Maria Barry-Jester

Shefali Luthra: Stat’s “Health Care’s High Rollers: As the Pandemic Raged, CEOs’ Earnings Surged,” by Bob Herman, Kate Sheridan, J. Emory Parker, Adam Feuerstein, and Mohana Ravindranath

Rachel Cohrs: Politico’s “Anthony Fauci Wants to Put Covid’s Politicization Behind Him,” by Sarah Owermohle

Joanne Kenen: Inside Climate News’ “When the Power Goes Out, Who Suffers? Climate Epidemiologists Are Now Trying to Figure That Out,” by Laura Baisas

Also mentioned on this week’s podcast:

To hear all our podcasts, click here.

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