Republicans Lack Votes – and Appetite – to End ‘Obamacare’

Image result for Republicans Lack Votes – and Appetite – to End ‘Obamacare’ images

Source: New York Times

Arizona’s new senator says he’d vote to repeal the nation’s health care law. That’s one additional Republican ready to obliterate the statute because his predecessor, the late Sen. John McCain, helped derail the party’s drive with his fabled thumbs-down vote last year.

It could well be too little, too late.

After years of trying to demolish former President Barack Obama’s prized law, GOP leaders still lack the votes to succeed. Along with the law’s growing popularity and easing premium increases, that’s left top Republicans showing no appetite to quickly refight the repeal battle.

“I’m not going to be asking for another vote on that this year,” No. 2 Senate GOP leader John Cornyn of Texas said last week when asked if he favored reopening the issue in a postelection lame duck session. No. 3 House leader Steve Scalise, R-La., said, “We need to win this election and then get more seats next year.” Each is their party’s chief vote counter.

That means any serious push to annul the statute would almost certainly hinge on Republicans retaining House control and adding Senate seats in November’s elections, neither of which is assured. If either goal eludes them on Election Day, President Donald Trump’s ability to deliver on one of his top campaign promises would have to wait for a second term, if he gets one.

Republicans seemed to gain ground last week when Sen. Jon Kyl replaced McCain, who died in August from brain cancer. Kyl said in a brief interview that he would have backed the measure that McCain opposed, a pivotal vote that would have sustained the repeal drive.

“It seems to me that would have been a useful thing to do,” Kyl said.

That bill failed 51-49. A “yes” from McCain would have meant a 50-50 tie that Vice President Mike Pence could have broken by casting his own vote.

Yet the two other GOP senators who also voted no, Maine’s Susan Collins and Lisa Murkowski of Alaska, haven’t relented. With Republicans controlling the Senate 51-49, the GOP remains short of the 50 votes they’d need.

“I would still oppose outright repeal,” Collins said in a short interview last week. In a written statement, aides said Murkowski “is not interested in another rushed, partisan process in the absence of a quality, comprehensive replacement” for the law.

Republicans have one fewer seat this year because Alabama Democrat Doug Jones defeated Republican Roy Moore in a December special election. Moore had defeated incumbent GOP Sen. Luther Strange in a party primary.

Senate Majority Leader Mitch McConnell, R-Ky., has ruled out revisiting the health care fight before November’s midterm elections, citing the crush of spending and other bills facing Congress. He’s displayed little desire to revisit the issue, which many Democrats are using in their election campaigns because Obama’s law is widely accepted, especially provisions like requiring insurers to cover people with pre-existing medical conditions.

Returning to the health care fight is a decision “I don’t have to reach anytime soon and don’t have time to facilitate, even if I was so inclined,” McConnell told reporters last week. He has said he doesn’t want to resume the fight unless he can win, and his House counterpart is also showing his focus is elsewhere.

“I haven’t even thought about it,” said House Speaker Paul Ryan, R-Wis.

A lame-duck session would last barely over a month and likely be absorbed with lingering budget disputes and picking the new Congress’ leaders.

That would leave scant time for health care work, such as resolving intractable disputes about what a replacement bill would look like.

Then they would need an official cost estimate of any bill from the nonpartisan Congressional Budget Office, which could take weeks. They’d also have to take procedural steps to protect their bill from a Senate Democratic filibuster, which would otherwise essentially kill the measure by requiring Republicans to garner 60 votes to succeed.

“There’s still a process that we have to go through, and people have to be aware of it,” said Sen. Bill Cassidy, R-La., who opposes the health care program. “You don’t just drop it from heaven like manna.”

Explaining the diminished urgency, Cornyn cited Congress’ repeal last December of the tax penalty on people who don’t buy individual insurance. That requirement, aimed at prodding healthier people to buy coverage and stabilize health markets, was one of the law’s least popular provisions.

Cornyn also mentioned Trump administration rules making it easier for people to buy short-term health care policies or association plans offered by groups of small businesses or self-employed people. Such packages could offer lower premiums but cover fewer benefits, and Democrats criticize them as undermining the consumer protections Obama’s law was designed to enshrine.

Also easing pressure on Republicans to act are indications that insurance premiums, a major vexation for voters, are growing more slowly.

An analysis by the consulting firm Avalere Health and The Associated Press last week found a 3.3 percent average increase in proposed or approved premiums across 47 states and Washington, D.C., for 2019. The average increase nationally this year was about 30 percent.

Meanwhile, the House plans to vote this week on a bill easing requirements the law imposed on employers. The measure would make it easier for companies to provide health insurance for fewer workers, refund tax penalties firms paid for not covering employees and postpone a levy on expensive policies companies provide workers.

Further underscoring the effort’s lack of traction, that measure seems certain never to emerge from Congress.

The Remedy For Surprise Medical Bills May Lie In Stitching Up Federal Law

Image result for The Remedy For Surprise Medical Bills May Lie In Stitching Up Federal Law imagesSource: Kaiser Health News

When Drew Calver had a heart attack last year, his health plan paid nearly $56,000 for the 44-year-old’s four-day emergency hospital stay at St. David’s Medical Center in Austin, Texas, a hospital that was not in his insurance network. But the hospital charged Calver another $109,000. That sum — a so-called balance bill — was the difference between what the hospital and his insurer thought his care was worth.

Though in-network hospitals must accept pre-contracted rates from health plans, out-of-network hospitals can try to bill as they like.

Calver’s bill eventually was reduced to $332 after Kaiser Health News and NPR published a story about it last month. Yet his experience shines a light on an unintended consequence of a wide-ranging federal law, which potentially blindsides millions of consumers.

The federal law — called ERISA, for the Employee Retirement Income Security Act of 1974 — regulates company and union health plans that are “self-funded,” like Calver’s. That means they pay claims out of their own funds, even though they may be administered by a major insurer such as Cigna or Aetna. And while states increasingly pass laws to protect patients from balance bills as more hospitals and doctors go after patients to collect, ERISA law does not prohibit balance billing.

Although Texas is one of nearly two dozen states that provide consumers with some degree of protection against surprise balance bills, those state laws don’t apply to self-funded plans.

It’s a fairly common problem. About 60 percent of workers who get coverage through their job have self-insured plans, and 18 percent of people with coverage through a large employer who were admitted to the hospital in 2016 received at least one bill from an out-of-network provider, according to an analysis by the Kaiser Family Foundation. (Kaiser Health News is an editorially independent program of the foundation.)

Health researchers and advocates have identified a number of potential solutions that could tackle the problem at the federal or state level. The courts are another option. Yet whether these efforts are politically feasible when health care is in play as a partisan football is another matter.

Polarized views on appropriate reimbursement levels for medical services “limit stakeholders at both the federal and state level from making progress,” said Kevin Lucia, a research professor at Georgetown’s Center on Health Insurance Reforms, who has analyzed state laws that restrict balance billing.

A look at options that experts say might address the problem:

Change Federal Law

The simplest way to stop surprise bills would be through restrictions imposed by federal legislation that would apply to both state-regulated policies sold by insurers and employer-sponsored self-funded health plans, which are federally regulated.

There’s a precedent for this. The Affordable Care Act added provisions that apply to both types of plans. That law requires plans that cover dependents to allow children to stay on their parents’ plans until they turn 26, for example, and cover preventive benefits without charging patients anything out-of-pocket.

New legislation could plug a big loophole in the ACA. The health law offered some consumer protections for out-of-network emergency care, one of the biggest trouble spots for balance billing. Not only do people sometimes wind up at out-of-network hospitals when they have an emergency, but even if they visit an in-network hospital, the emergency physicians, specialists and other providers such as pathologists and labs may not be in their health plan’s network.

The ACA limited a patient’s cost sharing for emergency services to what they would face if they were at an in-network facility. It also established standards for how much health plans have to pay the hospital or doctors for that care.

But the law didn’t prohibit out-of-network emergency doctors, hospitals and other providers, such as ambulance services, from balance billing consumers for the amounts their health plan didn’t pay.

Federal legislation could close that loophole by prohibiting balance billing for emergency services, as well as hospital admissions related to that emergency care.

Analysts at the University of Southern California-Brookings Schaeffer Initiative for Health Policy, who have suggested such a remedy, say the federal law could apply to any doctors and hospitals that participate in the Medicare program, as most do, to ensure that the effect would be widespread.

They also propose prohibiting balance billing in non-emergency situations when someone visits an in-network facility but receives care from out-of-network doctors or is referred for outpatient lab or diagnostic imaging that is outside of the person’s health plan network.

Still, the deep political scars left by the health law battles would seem to preclude any bipartisan efforts in Washington to change it.

“I’d love to see any kind of federal action,” said Loren Adler, associate director at the USC center, who co-authored the proposal. “It’s just hard to be super optimistic about anything happening in the near future.”

Revise Federal Regulations

The federal executive branch could also weigh in on fixing the problem for self-insured coverage. The Department of Labor could, for example, issue a ruling that clarifies that states can regulate provider payment, or require self-funded plans to participate in state dispute-resolution programs.

But experts say relying on regulatory changes to fix surprise bills may also be a nonstarter in this political climate.

“I don’t foresee the administration taking a hard look at the limits of its powers under the ACA,” said Sara Rosenbaum, professor of health law and policy at George Washington University.

Look To The States

More than 20 states have laws protecting consumers to some degree from surprise bills from out-of-network emergency providers or in-network hospitals if they’re covered by a state-regulated insurance policy, according to an analysis by Georgetown researchers published by the Commonwealth Fund.

State laws vary. Texas, for example, requires that consumers in HMO plans be held harmless from balance billing in out-of-network emergency and in-network situations, but consumers in PPO plans can be balance-billed.

New York’s law is more comprehensive, covering both types of plans and settings. New York protects consumers from liability for out-of-network emergency and other surprise bills, requires plans to disclose how they determine a reasonable provider payment and has a binding independent dispute-resolution process.

These laws typically don’t apply to self-funded plans, however. But that could change. A New Jersey law that went into effect last month allows self-funded plans to opt in to the state’s balance billing dispute-resolution process. If a federally regulated plan decides to participate in the state program, doctors, hospitals and labs would be prohibited from balance-billing those consumers, and any disputes will be handled through a binding arbitration process.

For self-funded employers, especially those who choose to pay their employees’ surprise bills, “this provides for a more formal structure and some relief,” said Wardell Sanders, president of the New Jersey Association of Health Plans.

There are other possibilities for addressing surprise bills at the state level, policy experts say. While states can’t regulate self-funded health plans, they do regulate doctors and hospitals and other providers.

States could simply cap the amount that providers can charge for out-of-network care, for example, or prohibit practitioners like radiologists and pathologists, who don’t deal directly with patients, from billing them for services, said Adler.

“As long as providers can charge whatever they please, the problem won’t go away,” said Adler.

Will The Courts Weigh In?

These billing disputes rarely end up in court, mainly because attorneys are hesitant to take them since there are no guaranteed attorney’s fees.

A recent Colorado case was a rare success for a patient. A jury in June sided with Lisa French, a clerk at a trucking company, who was stunned by a $229,000 balance bill for spinal fusion surgery. Saying the charges were unreasonable, the jury knocked down her share of that bill to just $766.74.

The hospital was paid nearly $75,000 by her health coverage, an amount her insurer felt built in a fair profit margin, but the hospital claimed fell short.

That raises the question at the heart of many disputes over balance billing: What is a fair price?

Hospitals argue they should get whatever amount they set as charges on their master list of prices. Attorneys for patients, however, argue that a fair price should be closer to those discounted rates hospitals accept in their contracts with insurers.

Hospitals generally refuse to disclose those discounted rates, leaving patients fighting surprise bills little information about what other people pay.

Several recent court cases — including state Supreme Court rulings in Georgia and Texas — required hospitals to provide those discounted rates, although the rulings did not say those discounted prices are ultimately what patients would owe.

Trump Health Chief Meets With GOP Lawmakers On Lowering Drug Prices

Trump health chief meets with GOP lawmakers on lowering drug prices

Source: The Hill

Secretary of Health and Human Services Alex Azar on Thursday met with Republican lawmakers on the House Ways and Means Committee to discuss ways to lower drug prices.

President Trump has railed against drug prices and his administration has rolled out a series of actions seeking to lower prices, though many say the moves have been relatively modest.

House Ways and Means Chairman Kevin Brady (R-Texas) said that Azar gave lawmakers an update on steps the administration has taken on drug prices and “We talked about what steps can Congress take to help lower these prices as well.”

He did not provide specifics on where Congress might act. Most observers say action will have to mostly come from the administration, given that Congress has long struggled to address the controversial issue of drug pricing.

Asked if he expected more administrative actions to be announced in the near future, Brady said, “The answer is yes.”

Rep. Tom Reed (R-N.Y.), who was also in the meeting, said that the group did not “directly” discuss specific legislation on drug prices but there was a “conversation” about areas where the administration could need additional authority from Congress.

Democrats have criticized the administration’s steps so far as not going anywhere near far enough on drug pricing, leaving out more sweeping actions like allowing Medicare to negotiate prices.

The administration has made announcements with potential to bring changes, such as forming a working group to explore importing drugs from abroad to lower prices on old, off-patent drugs with high prices.

Officials have also floated a move to eliminate or reform discounts known as rebates that drug companies pay to negotiators, in an effort to simplify the system and lower sticker prices.

Lawmakers discussed rebates with Azar on Thursday, though Reed said there were some sensitivities that limited discussion of a proposed regulation on that subject, given the ongoing regulatory process.

Hospitals are Fed Up with Drug Companies, So They’re Starting Their Own

Hospitals are fed up with drug companies, so they're starting their ownSource: Washington Post

A group of major American hospitals, battered by price spikes on old drugs and long-lasting shortages of critical medicines, has launched a mission-driven, not-for-profit generic drug company, Civica Rx, to take some control over the drug supply.

Backed by seven large health systems and three philanthropic groups, the new venture will be led by an industry insider who refuses to draw a salary. The company will focus initially on establishing price transparency and stable supplies for 14 generic drugs used in hospitals, without pressure from shareholders to issue dividends or push a stock price higher.

“We’re trying to do the right thing — create a first-of-its-kind societal asset with one mission: to make sure essential generic medicines are affordable and available to everyone,” said Dan Liljenquist, chair of Civica Rx and chief strategy officer at Intermountain Healthcare in Utah.

The consortium, which includes health systems such as the Mayo Clinic and HCA Healthcare, collectively represents about 500 hospitals. Liljenquist said that the initial governing members have already committed $100 million to the effort. The business model will ultimately rely on the long-term contracts that member health care organizations agree to — a commitment to buy a fixed portion of their drug volume from Civica.

While Civica did not disclose which drugs it’s focusing on for competitive reasons, Elie M. Bahou, chief pharmacy officer of Providence St. Joseph Health, a 51-hospital system spread across seven states and one of the members of the consortium, said the criteria include drugs that underwent price increases of 50 percent or more between 2014 and 2016 and essential medicines that were on national shortage lists.

2016 survey commissioned by hospital lobbying groups found that a third of hospital administrators reported that higher drug prices had a “severe” effect on their ability to manage their budgets.

Several hospital leaders said shortages and price spikes on old drugs are managed on a near-daily basis. The cost isn’t just the price of a drug, but the clinical and staff time spent tracking the supply, looking for alternatives and changing protocols. For hospital systems that are in multiple states, the shortage problems are often hyperlocal, too — in one state, morphine might be available while fentanyl is in shortage, while in another, the reverse could be true. So the one solution may not even work systemwide.

“There’s a whiteboard at every one of our pharmacies, and there are 10 to 20 drugs on the whiteboard and a number — that’s the supply they have on hand. And depending on what that number is, they’ll strategize: What are we going to do,” said Bob Ripley, chief pharmacy officer of Trinity Health, one of the health systems in the consortium.

Civica Rx’s first drug could hit the market next year, and the company has committed to a transparent pricing model, without secret rebates that are common throughout the pharmaceutical industry.

Martin VanTrieste, chief executive of Civica, worked in the traditional pharmaceutical industry for decades — most recently at biotech giant Amgen — and said that he came out of retirement to take on the role with two requirements: He’d work without pay, and the company had to remain focused on patients. The question of how big the company might grow, he said, depends on how the market reacts.

“We want the marketplace to take care of itself and work, so if the entrance of Civica with 14 drugs — and the threat we can do more, pretty quickly, makes the marketplace work better, probably we don’t grow much bigger than that,” VanTrieste said. “But if the marketplace is broken and can’t be fixed by adding just 14 drugs,” the company could expand much more.

There are risks to the idea. Civica’s leaders have discussed the possibility that other companies that make the generic drugs will temporarily cut their prices in an effort to maintain market share. But Civica leaders say the model of guaranteeing a steady supply at a fair, transparent price will be attractive to hospitals. Since the effort was first outlined in January, health organizations that represent a third of the nation’s hospitals have expressed interest.

“The risk of doing nothing is that we’ll continue with the same price escalations and shortages we’ve had,” said Amy Compton-Phillips, chief clinical officer of Providence St. Joseph Health. “The risk of doing nothing to me seems higher than actually trying creative solutions to solve the problem.”

Major Health-Industry Deals Move Closer to Approval

Source: Bloomberg

Two major health-care deals that stand to reshape the insurance and pharmacy industries are moving toward winning antitrust approval, according to a person familiar with the matter, a final step as the takeovers head toward completion.

The U.S. Department of Justice is on track to soon approve the acquisition of pharmacy-benefit manager Express Scripts Holding Co. by health insurer Cigna Corp., as well as CVS Health Corp.’s takeover of insurer Aetna Inc., said the person, who asked not to be identified because the process is private.

CVS and Aetna are in talks with the Justice Department about divesting Medicare prescription drug plans to resolve the government’s concerns the deal will otherwise harm competition. The Cigna-Express Scripts deal may not require any divestitures, said the person.

“We continue to constructively work with the Department of Justice and remain confident the deal will close by the end of the year,” said Brian Henry, a spokesman for Express Scripts.

Representatives for the Justice Department, CVS and Aetna declined to comment. A Cigna spokesman didn’t return requests for comment.

Aetna shares were up 1.3 percent to $201.93 at the close in New York Wednesday, while CVS gained 1.2 percent to $74.89. Express Scripts rose 3.3 percent to $89.83, and Cigna fell 0.6 percent to $184.93.

CVS announced its $68 billion deal for Aetna late last year. The deal would combine CVS’s drugstores and pharmacy-benefits management unit with the third-biggest U.S. health insurer. Cigna announced its $54 billion deal for Express Scripts in March.

Both deals are vertical transactions, meaning they join companies that operate at different levels of the supply chain. Bloomberg reported in August that antitrust regulators didn’t find vertical-competition concerns in evaluating the CVS-Aetna deal.

The Wall Street Journal reported on the approval process earlier Wednesday.

Senate Poised to Pass Bill to Stop Flow of Opioids Through the Mail

Source: New York Times

The Senate appears poised this week to pass a bill intended to shut a window through which fentanyl and other opioids pour into the United States from China through the mail, as lawmakers search desperately for ways to combat an epidemic affecting people of all ages and income levels across the country.

The measure, part of a bipartisan package of legislation to fight the opioid crisis, requires the United States Postal Service to collect electronic information on merchandise arriving in this country, so customs inspectors can screen parcels for fentanyl and other contraband.

Commercial carriers like FedEx, United Parcel Service and DHL are already required to provide such information.

“We are being overrun with fentanyl,” said Senator Rob Portman, Republican of Ohio, who led an 18-month study of the illicit imports as chairman of the Senate Permanent Subcommittee on Investigations. “It is 50 times more powerful than heroin. It is very inexpensive. It is coming primarily from China and coming primarily through our U.S. Postal Service, if you can believe it.”

The House approved a similar measure in June and included it in a comprehensive bill intended to reduce opioid addiction and deaths. Some version of the legislation — which would also increase access to certain kinds of treatment and speed research on nonaddictive pain medications — appears likely to become law this year.

The Senate bill — the Synthetics Trafficking and Overdose Prevention Act, or STOP Act — includes an unusual provision under which the Postal Service, an independent arm of the federal government, could be subject to civil fines if it failed to meet certain targets for providing “advance electronic information” to the Customs and Border Protection agency.

President Trump promoted the legislation in a recent Twitter post.

“It is outrageous that Poisonous Synthetic Heroin Fentanyl comes pouring into the U.S. Postal System from China,” Mr. Trump wrote. “We can, and must, END THIS NOW! The Senate should pass the STOP ACT — and firmly STOP this poison from killing our children and destroying our country.”

Under the bill, the Postal Service is supposed to provide information on at least 70 percent of international mail shipments, including all of those from China, by the end of this year. And by the end of 2020, it is supposed to provide data on all such shipments. The Postal Service could block or destroy shipments for which the required information was not provided.

The required data includes the name and address of the sender and the contents of packages, as described by the senders.

Federal authorities could waive the requirements for countries that do not have the capacity to provide electronic information if they are found to pose a low risk to the United States and account for a small volume of mail shipments. But, lawmakers said, China does have the capacity to provide the required data electronically.

The Centers for Disease Control and Prevention reported last month that drug overdoses killed about 72,000 Americans in 2017, a record high. A major factor, officials said, was a continued sharp increase in deaths involving synthetic opioids like fentanyl.

Senator Amy Klobuchar, Democrat of Minnesota, is an author of the bill to curb opioid imports. It would, she said, “close loopholes in our postal system that allow foreign manufacturers to flood our markets with unsafe drugs.”

William Siemer, acting deputy inspector general of the Postal Service, told Congress this year that the agency receives limited electronic data about many parcels, and said that “the information it does receive is often incomplete or inaccurate.” Unlike private shippers, he said, the Postal Service must generally “obtain a warrant to inspect the contents of suspect parcels.”

Another provision of the Senate bill makes clear that the Food and Drug Administration can require additional safety measures for the packaging of prescription opioids. The agency could, for example, stipulate that such drugs must be sealed in plastic blister packs providing single doses or a supply limited to three days or a week.

The bill also authorizes Medicaid to pay for care provided at special treatment centers for babies who have been exposed to opioids in the womb. The babies may have tremors, seizures, breathing problems or other signs of neonatal abstinence syndrome, caused by withdrawal from the drugs.

In addition, the bill accelerates research to develop nonaddictive painkillers and other alternatives to opioids. The National Institutes of Health has devised an elaborate plan for such research.

“I see a nonaddictive painkiller as the holy grail of the opioid crisis,” said Senator Lamar Alexander, the Tennessee Republican who is chairman of the Senate health committee.

If passed in its current form, the Senate bill would need to be reconciled with the House measure, which includes a provision allowing Medicaid to cover up to 30 days of treatment in an “institution for mental diseases” for adults addicted to opioids or cocaine.

The Affordable Care Act is Under Fire Again in Federal Court

Source: The Washington Post

The long-disputed fate of the Affordable Care Act played out anew in a Fort Worth courtroom Wednesday as a score of Republican-led states sought to persuade a federal judge to halt the sprawling health-care law.

In the latest legal threat to the 2010 law, the coalition of GOP attorney’s general and a pair of governors argued that a recent change in federal tax policy has made the ACA unconstitutional. For the short-term, they asked a federal judge to grant a preliminary injunction that would suspend the law while the rest of the case unfolds — a possibility that could throw significant aspects of the U.S. health-care system into chaos.

U.S. District Judge Reed O’Connor, a conservative jurist appointed by President George W. Bush, did not immediately rule on the request or indicate when he would do so. He asked more frequent and pointed questions of the parties arguing in favor of the ACA, while asking the opponents mainly about the impact of a preliminary injunction or an outright ruling against the law.

The hearing, part of a lawsuit filed in January by the Texas attorney general and his allies, drew heightened attention for its timing, coming amidst the contentious Senate confirmation hearing for Brett Kavanaugh, Trump’s nominee to the Supreme Court. Advocates on both sides of the case widely predict that the O’Connor’s rulings will be appealed and could well become the first ACA case to reach the high court with the conservative Kavanaugh as a member.

The nearly four hours of legal sparring at Wednesday’s hearing shone a light on the partisan acrimony surrounding the statute that, several years after it extended health coverage to millions of Americans, remains a favorite Republican whipping post and is serving as a convenient rallying cry for Democratic candidates in this year’s midterm elections.

In an abnormal arrangement, attorneys for the federal government — the defendant in the case — sat on the same side of the courtroom as the plaintiff’s lawyers during Wednesday’s hearing. The odd seating pattern stems from the fact that the Trump administration is largely agreeing with the plaintiffs who are suing. In June, the Justice Department saying in a court filing it would not defend the law.

A group of Democratic attorneys general, who have won standing in the case, were left to argue Wednesday for the health law’s preservation.

The ACA has been upheld twice by the Supreme Court. In a 2012 ruling in a case challenging the law’s requirement that most Americans buy health insurance, the majority reasoned that Congress’s authority to set taxes made that mandate constitutional. The law contains a tax penalty for people who flout the requirement.

The lawsuit, filed in February by Texas Attorney General Ken Paxton (R) and his allies, contends essentially that the high court’s opinion is out of date. In an argument that a variety of legal scholars regard as weak, they argue that there is no longer a tax because the Republican Congress late last year decided to end the penalty and that the whole law is thus unconstitutional.

At the hearing, Darren McCarty, an assistant Texas attorney general, argued that once the penalty is removed, “the entire ACA falls.”

Arguing for the Trump administration, Brett Shumate, a deputy assistant attorney general, agreed that, once the penalty ends in January, the law’s insurance requirement “must be held unconstitutional.”

Justice’s position does not go as far as that of the GOP attorneys general. It agrees that, without the mandate, required benefits and consumer protections will not be valid, either. The protections include a highly popular part of the law that prevents insurers from charging more to people with preexisting medical conditions — or refusing to sell them coverage.

Unlike the plaintiffs’ argument, the administration believes that many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and consumer protections.

Shumate, however, asked the judge not to grant a preliminary injunction — at least not soon — saying that it would “cause chaos in the insurance markets.” The next yearly shopping period for health plans through ACA insurance marketplaces is scheduled to start in November. The administration would prefer that the judge simply rule on the case after giving the parties more time to present evidence, Shumate said.

Depending on how broad it was, an injunction also could stop premium subsidies on which millions of consumers rely, or even reverse a variety of Medicare payment changes built into the law.

Arguing on behalf of the Democratic states, a pair of California deputy attorneys general told the judge that the law remains constitutional even without the tax penalty and that, if there was any doubt, the proper legal path was to strike down Congress’s removal of the penalty — not to rule against the law.

One of them, Neli Palma, argued that a preliminary injunction would cause “profound harm to the public interest” and millions of Americans. Such an injunction, she said “is meant to maintain a status quo. They are seeking to blow it up.”

‘Everyone Needs it … No One Can Afford It.’ Is There Middle Ground on California Health Care?

Image result for ‘Everyone Needs it … No One Can Afford It.’ Is There Middle Ground on California Health Care? imagesSource: Sacramento Bee

When it comes to health care reform, Gavin Newsom and John Cox are from different solar systems, not just different planets.

Newsom, the Democrat who is the strong front-runner in this year’s campaign for governor, has promised to work toward a government-run universal health care system. Cox, his conservative Republican opponent, prefers a private-sector approach.

Yet in a political climate in which both candidates face pressure from base voters with similarly huge distances between them, many of The Bee’s California Influencers reject these more polarizing alternatives in favor of solutions that establish a middle ground.

“It’s important to understand that healthcare — and community health generally — is an extraordinarily complex area that eschews simple ideological solutions…Hopefully the next governor will chart a more pragmatic middle path,” said Jim Wunderman, President and CEO of the Bay Area Council. “Both Gavin Newsom and John Cox would be wise to recognize that any solution for meeting Californians’ healthcare expectations will require a mix of approaches.”

“Selling single-payer to voters is irresponsible and impractical. Private sector based health care is insufficient,” agreed Republican consultant Mike Madrid, who advised Antonio Villaraigosa in this spring’s gubernatorial campaign. “Both candidates lack the courage to fix the problem, and it’s very unlikely either will accomplish their campaign promises on health care.”

Health care costs are clearly driving the debate.

One Sacramento Bee reader used our “Your Voice” feature to ask the Influencers to address the problem this way: “What do you consider to be the single biggest barrier to making health care less costly in California, as it is in most developed nations?”

Another asked, “How much would universal health care cost and how could it be funded?”

Angie Wei, Chief of Staff for the California Labor Federation, summed up the challenge:

“Everyone needs it, everyone cares about it. No one can afford it,” Wei said.

Two of California’s longtime political leaders discussed potential ways to tackle the problem.

Former U.S. Senator Barbara Boxer suggested “a state public option plan that California could offer to those who are dissatisfied with their current healthcare. That plan could be basic and affordable and would act to keep the private insurance market competitive,” offering what appeared to be polite advice to her fellow Democrat Newsom. “I also support this public option idea at the national level, but until there is a political sea change, all eyes will be on the states, giving our next governor a wonderful opportunity for leadership in this area.”

Republican Tom Campbell, the former U.S. Congressman who now teaches law and economics at Chapman University, also offered a more measured approach from a private-sector perspective.

“There is… some role for government: for the poor, we should provide a voucher that will automatically cover a plain-vanilla health care policy, including emergency care,” he said. “That policy should be available for purchase by anyone, but be free to the poor. For those with pre-existing conditions, we should fully fund the existing California program of a high-risk pool, with vouchers based on income.”

Wei was one of several Influencers who do support a single-payer plan, though most acknowledged the challenges associated with funding such an ambitious program.

“Gavin Newsom is right in calling for continuing the conversation on how we get to a single-payer system,” said Democratic strategist Roger Salazar. “There isn’t a Democrat in California that opposes Health Care for All. The stumbling block is how to pay for it. “

“…Newsom is right, that single-payer is necessary,” agreed Erwin Chemerinsky, Dean of the UC-Berkeley School of Law. “But no one seems to have figured out how to pay for it.”

Dorothy Rothrock, President of the California Manufacturers and Technology Association, strongly questioned the value of such an approach.

“A government-run single-payer system won’t lower costs if it simply shifts costs to businesses and citizens in the form of higher taxes while taking away competitive market features that put downward pressure on costs,” argued Rothrock.

Former Fresno Bee Editor Jim Boren, now the Executive Director of Fresno State’s Institute for Media and Public Trust, used even stronger language.

“… there’s little political chance of single-payer being implemented in California in the near future,” he said. “Pushing single-payer, without specific details, suggests you really don’t have a plan to make health care affordable and accessible to all.”

But the most formidable obstacle to many Influencers was the cavernous gap between campaign trail promises and the much more difficult realities of governing.

“I would be more confident regarding solutions if the candidates (and the media covering them) would scale back on rhetoric and soundbites and peel away the many layers when addressing this issue before voters,” said Cassandra Pye, the President of California Women Lead and Founder and CEO of 3.14 Communications. “Even then, the next governor will have to contend with well-funded interests who won’t want to give away any of their portions of the health care pie.”

CMS Provides New Flexibility to Increase Prescription Drug Choices and Strengthen Negotiation for Medicare Enrollees

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The Centers for Medicare & Medicaid Services (CMS) issued a memo today to Medicare Part D plans, which cover prescription drugs that beneficiaries pick up at a pharmacy, offering plans new tools and flexibility to expand choices and lower drug prices for patients.

Currently, if a Part D plan includes a particular drug on its formulary, the plan must cover that drug for every FDA-approved indication, or patient condition, even if the plan would otherwise instead cover a different drug for a particular indication. The requirement to cover drugs in this manner can discourage Part D plans from including more drugs on their formularies and limit their power to negotiate discounts.

Today’s memo explains that starting in 2020, plans will have new flexibility to tailor their formularies so that different drugs can be included for different indications.  This policy, known as “indication-based formulary design,” is used in the private sector and will enable Part D plans to negotiate lower prices for patients.  Targeted formulary coverage based on indication will also provide Part D beneficiaries with more drug choices and will empower beneficiaries to select a plan that is designed to meet their unique health needs.

“This action delivers on President Trump’s drug pricing blueprint by offering Medicare plans new tools to negotiate lower drug prices and offer patients better choices,” said HHS Secretary Alex Azar. “This is a significant step in modernizing the successful Medicare Part D program by giving plans the tools that serve patients well in the private sector.”

“President Trump and Secretary Azar are working to get the best deal for American patients,” said CMS Administrator Seema Verma. “By allowing Medicare’s prescription drug plans to cover the best drug for each patient condition, plans will have more negotiating power with drug companies, which will result in lower prices for Medicare beneficiaries.”

Today’s policy is expected to increase both the number of drugs available on a given plan’s formulary and the diversity of plan formularies available.  Part D plan sponsors and prescription drug manufacturers begin negotiations in the fall of 2018 for formulary placement in Contract Year 2020, so CMS is making this announcement today to ensure that beneficiaries will see the benefits of this policy in 2020.

The memo emphasizes that if a Part D plan limits formulary coverage of a drug to certain indications, the plan must ensure that there are other therapeutically similar drugs on formulary for the drug’s non-covered indications.

To help ensure that Medicare enrollees understand their coverage, the agency will update the online tools that beneficiaries use when selecting a Part D plan, so that beneficiaries will see that a plan’s coverage for a drug varies by indication before they make a choice in 2019 for their 2020 plan.

CMS will also require plans that implement this tool to explain what it will mean for beneficiaries in the plan’s Annual Notice of Change (ANOC) and Evidence of Coverage (EOC) documents.  In addition, the agency will update the 2020 Medicare & You handbook to include information on this new flexibility.  CMS looks forward to working with patients and other stakeholders to ensure the successful implementation of this policy.

To view a fact sheet on today’s announcement, please visit:

To view a copy of the memo that was sent to Medicare Part D plan sponsors, please visit:

Pre-Existing Conditions Fight Takes Center Stage in Midterms

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Source: The Hill

Congress and the White House are facing a number of important issues this fall. But the clock is ticking with the November midterms looming and the end of the year fast approaching. Here’s a look at Washington’s agenda and the key stories The Hill will be watching in the months ahead.

Health care is one of the issues taking center stage in this November’s midterm elections as Democrats press Republicans on preserving protections for pre-existing conditions under ObamaCare. But there is also plenty of unfinished work for Congress and the administration this fall, from passing opioid legislation to tackling drug costs.


The latest Republican lawsuit against ObamaCare is ready for court, with arguments slated for Sept. 5.

Twenty GOP-led states are challenging the law, with the backing of the Trump administration. The lawsuit argues that the health-care law is unconstitutional after the repeal of the individual mandate last year.

That case has given midterm fodder to Democrats who have been hammering Republicans for seeking to invalidate protections for people with pre-existing conditions in court.

In a sign of Republicans’ concern over Democratic attacks, 10 GOP senators last week introduced a bill they said would prevent insurance companies from charging more or denying coverage to people with pre-existing conditions.

Also on the ObamaCare front, open enrollment begins Nov. 1 and ends Dec. 15 and the Department of Health and Human Services (HHS) is facing pressure from Democrats, who have accused them of sabotaging the health-care law.

A report from the nonpartisan Government Accountability Office released last week attributed a 5 percent enrollment drop in large part to a series of changes HHS made to the law last year. Expect Democrats to continue highlighting that this fall.

This year’s open enrollment will also bring more changes. For the second year in a row, HHS will significantly cut funding for outreach groups that help enroll people in ObamaCare plans.

Only $10 million in funding will be awarded to these groups, called navigators, compared to the $62 million they received in the last open enrollment period under the Obama administration.

This will likely also cut down on the number of navigators operating in the U.S., which means those in rural areas could find it more difficult to get in-person enrollment help.

All eyes will also be on the administration’s expansion of non-ObamaCare plans, which experts anticipate could draw healthy people from the market created by the law, further harming it.


Back in Congress, legislation addressing the opioid crisis could move as soon as the week after Labor Day. Senators have been working behind the scenes to combine a range of bills into a package that can get bipartisan agreement.

One holdup so far has simply been the fact that so many senators want to get their provisions included, according to Senate Majority Whip John Cornyn (R-Texas).

“It’s a big bill involving three standing committees and just everybody wants to make sure that they get their piece in it,” Cornyn said, adding that it “takes a lot of diplomacy.”

The House passed its package of opioid bills in June, an accomplishment that could give vulnerable GOP lawmakers something to tout on the stump. Since then, the chamber has been waiting on the Senate.

In the upper chamber, many vulnerable red-state Democrats come from states hit hard by the opioid crisis, and they could be eager to secure a legislative victory as well by pushing through the bills. 

Drug prices

Washington will be on the lookout for more moves on President Trump’s plan to lower prescription drug costs.

Administration officials have been trying to overcome skepticism that their plan will actually significantly lower consumers’ prices.

Rather than one big reveal, officials have been rolling out a series of smaller actions, with more promised to come.

One area being closely watched is a cryptic notice of regulation on the rebates that drug companies pay to the negotiators known as pharmacy benefit managers. The administration has criticized them as being secretive and driving up prices.   

Medicaid work requirements

The administration plans to move forward with Medicaid work requirements this fall even after a federal judge blocked a proposal in Kentucky from taking effect.

HHS Secretary Alex Azar has signaled that he will not back down from the work requirements, which have come to be a defining priority for the administration.

HHS reopened the comment period on a waiver to allow Kentucky to implement its Medicaid work rules in an effort to show a district court that had blocked the proposal that HHS was taking its concerns seriously.

The proposal garnered nearly 12,000 comments, most of which were negative, according to an analysis released Tuesday.

Now the administration has to review the comments and decide how to move forward, though it has not set a timeline.

There are several other work requirement proposals that the administration could approve by the end of the year in Arizona, Maine and Wisconsin. Mississippi, Ohio and Utah also have sent in requests for waivers so they too can implement Medicaid work requirements.


There are several pending regulations at HHS that lobbyists have been eagerly awaiting, and they’re all controversial. In May, HHS announced a proposed regulation that would essentially ban Planned Parenthood from the Title X program.

Title X is the only federally funded program solely dedicated to providing low-income women and men with family planning services.

But Republicans and anti-abortion groups have long criticized it for funding Planned Parenthood, which serves about 40 percent of Title X patients.

The proposal includes several changes, such as banning clinics from funding if they refer women for abortions, removing the requirement that clinics counsel women on abortion as an option and requiring a physical and financial separation between abortion providers and Title X services.

A proposed regulation issued in January would give HHS’s Office for Civil Rights more power to ensure that individuals and entities are not being discriminated against because of their religious beliefs or moral convictions.

The regulation, which was introduced in January, would allow the Office for Civil Rights to initiate compliance reviews, conduct investigations and use enforcement tools to address violations and resolve complaints.

Opponents worry the regulation would result in care being denied to LGBT people or women seeking abortions.

There’s another proposed HHS regulation that advocates worry would negatively affect the LGBT community.

Advocates think HHS will roll back a final rule issued under the Obama administration that prohibited health-care providers and insurers who receive federal funding from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy, among others.

The rollback proposal is being reviewed by the White House, one of the final stages before it is released to the public for comment.

Last Updated 09/12/2018

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