SCOTUS Adds Medicaid Exclusion of Planned Parenthood to its Docket

Add another case to my SCOTUS "roundup" (Dec. 1).

SCOTUSBlog notes that the Supreme Court has granted review of the 4th Circuit Court of Appeals's decision in Kerr v. Planned Parenthood, which involves "a dispute over whether a South Carolina woman can bring a lawsuit challenging that state’s decision to end Planned Parenthood’s participation in its Medicaid program. . . ." Amy Howe, Court adds Medicaid lawsuit to docket, SCOTUSblog (Dec. 18, 2024, 12:57 PM). It's a safe bet that the required four votes to grant the petition for review came from the 6-member conservative group of Justices, so this is an ominous development for Planned Parenthood (and the women who depend upon PP for a variety of healthcare needs). The note continues:

Under federal law, Medicaid funds cannot generally be used to provide abortions. But Planned Parenthood provides other medical services to women, including gynecological and contraceptive care but also screenings for cancer, high blood pressure, and cholesterol.

At two clinics in Charleston and Columbia, Planned Parenthood has tried to make it easier to lower-income patients, many of whom are covered by Medicaid, to use its services – by, for example, offering same-day appointments and extended clinic hours. One of those Medicaid patients is Julie Edwards, who suffers from diabetes. She went to Planned Parenthood for birth control but says she wants to return to receive other care in the future.

In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to bar abortion clinics from participating in the Medicaid program. McMaster explained that the “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.”

Edwards and Planned Parenthood went to federal court in South Carolina. They argued that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.

A federal appeals court agreed with Edwards and Planned Parenthood and blocked the state from excluding Planned Parenthood from its Medicaid program. That decision prompted the state – represented by the conservative Alliance Defending Freedom – to come to the Supreme Court this summer, asking the justices to decide whether Edwards and Planned Parenthood have a legal right to sue to enforce the Medicaid Act.

The state told the justices that five federal courts of appeals “have wrongly subjected states to private lawsuits Congress never intended.” Moreover, it added, with 70 million Americans receiving Medicaid benefits and tens of thousands of health-care providers participating in the program, the question at the center of the case is “of great national importance.”

But Planned Parenthood and Edwards countered that the question does not come up very often these days. And most of the cases in which it did arise, they continued, “were efforts by states to target Planned Parenthood in ways courts have recognized are unwarranted and politically motivated.” But in any event, they concluded, as all three judges on the court of appeals agreed in this case, the Medicaid law is “clear and unambiguous in conferring a privately enforceable right.”

The justices considered the state’s petition at nine consecutive conferences before finally granting review on Wednesday. The case will likely be slated for argument in either March or April, with a decision to follow by summer.

A number of states have removed Planned Parenthood from their Medicaid programs, including Texas. Beyond that, the Texas Attorney General has sued PP for$1.8 billion in an attempt to bankrupt the organization. Details are here.

Two New Enforcement Actions from Texas Attorney General

As easy as it is to dislike Ken Paxton for his extravagantly disruptive policies on abortion and gender-affirming care for minors, his office does a good job in its enforcement program against health fraud. Two recent examples:

Attorney General Ken Paxton’s Investigation Results In 10-Year Prison Sentence And Over $34 Million Restitution For North Texas Doctor (November 25, 2024; State of Texas) Attorney General Ken Paxton’s Medicaid Fraud Control Unit Plays Key Role In Largest Ever Criminal Enforcement Action Targeting Opioid Distributors (November 25, 2024; State of Texas)

Health Affairs: "The Impact Of The Election On Health Policy And The Courts"

The nonpartisan and highly respected journal, Health Affairs, today posted an analysis of some of the more conspicuous (and worrying) changes to the health care scene we might expect to see once Donald Trump's administration is in place. It is, as usual, well worth reading in whole.

The areas that are discussed include:

• the Affordable Care Act (ACA) (primary concern: allowing premium tax credit enhancements to expire entirely after 2025, which could result in 4 million people losing their health insurance coverage; also -- whether by statute, agency regulation, or executive order -- any number of the ACA's protections are at risk)
• Medicaid (during the campaign Trump vowed to leave Social Security and Medicare alone; "experts noted that Medicaid was conspicuously absent from the conversation")
• reproductive health care (abortion, LGBTQ nondiscrimination, reviving the Comstock Act, changing the Administration's position in state and federal lawsuits)
• nondiscrimination and health equity ("Health care is a civil rights issue. . . . Anti-discrimination protections in health are also likely to suffer major blows going forward."
• Medicare Drug Negotiation Program (hard to believe that a program that will save the government and citizens billions will be watered down, but Big Pharma has hated this law from the beginning and it has some attentive allies in the new administration)
• public health (RFK, Jr. -- need I say more? He was named as Trump's nominee for Secretary of HHS; the mind reels)
• the courts (Yup. From the Supreme Court on down, expect change)

The end. (Take that any way you want.)

Health Care Fraud: Texas Style

On Oct. 15 a federal jury in Houston convicted the owner of a firm that operated 14 pharmacies, on fifteen counts including conspiracy to commit mail fraud, conspiracy to violate the anti-kickback statute, bribery concerning programs receiving federal funds, conspiracy to commit bribery, five counts of healthcare fraud, and six counts of money laundering, resulting in $160 million in fraudulent claims that were paid by Medicare. 

As described by the Office of the U.S. Attorney for the Southern District of Texas:

From 2014 through 2021, Mohamad Mokbel led a company called 4M Pharmaceuticals which operated 14 pharmacies with straw owners. The jury heard evidence that Mokbel illegally purchased thousands of Medicare beneficiaries, including their identification number, personal health and physician information. Mokbel targeted elderly diabetic patients who are dependent on diabetic testing supplies to manage their blood sugar levels. Mokbel paid $16 to $40 per Medicare beneficiary.  

To maximize reimbursements and without regard for medical necessity, Mokbel then directed 4M employees to use the Medicare beneficiaries’ patient data to run insurance claims to determine if Medicare or other insurance plans would cover and reimburse at a high rate for the topical creams, Omega-3 pills and other medications that Mokbel intended to sell through 4M pharmacies.

At Mokbel’s direction, 4M employees would then fax pre-filled prescription requests to the patients’ doctors appearing to be for diabetic testing supplies with topical creams added at the bottom. They also included false representations that the patient was requesting a 4M Pharmacy fill their medications. In reality, Mokbel had previously purchased the patient’s personal information, the patient had not selected a 4M Pharmacy and the patient was often unaware the request was being made on their behalf. 

Many doctors apparently took the representations in the fax at face value and did sign and send back the prefilled prescription requests to 4M. Mokbel’s call center in Houston and later in Egypt then contacted the patients and made false and misleading statements about the topical cream and their doctor’s order. Mokbel’s pharmacies then shipped out numerous topical creams, often on auto-refill, and excessively billed Medicare, Medicaid and private insurance plans. 

Mokbel made over $200 million as a result of the scheme. 

The money value of the fraud is considerably less than the record for Medicare fraud, but what caught my eye was the complexity of the scheme and the lineup of law-enforcement agencies involved in the case: Homeland Security Investigations (HSI) Houston, the FBI, IRS Criminal Investigation, the U.S. Department of Health and Human Services, the U.S. Food and Drug Administration, and the Texas Attorney General’s Medicaid Fraud Control Unit. This was a big, big deal for these investigators.

Health Care Policy and the 2024 Election

The presidential campaign hasn't been much about health law, and up to two-thirds of adults are concerned about the lack of discussion. Perhaps to remedy this situation -- or to keep the candidates honest if and when they deign to discuss health care -- the nonpartisan Kaiser Family Foundation (KFF) has just posted a new tool; here's their announcement:

A new KFF tool generates data-driven fact sheets that lay out the health care landscape in every state against the backdrop of the 2024 election.

These state “snapshots” provide information on a variety of health care topics that may be the focus of campaign and policy debates. Topics include

• health costs; 
• medical debt;
•  women’s health policy, including state abortion, contraception and maternity laws and policies;
•  health coverage, including the Affordable Care Act, Medicare and prescription drug coverage, Medicaid, and employer-sponsored insurance;
•  gender affirming care; and
•  basic information on health status, population and income. 

The new tool is part of KFF’s broader collection of Election 2024-related resources, including our side-by-side comparison of the candidates’ positions and records on health policy issues. 

Other election-related features include:

• Springfield, Ohio: How Candidates Amplify Misinformation, by KFF President and CEO Drew Altman
•  How Campaign Rhetoric Harms Immigrants, by Mollyann Brodie, executive vice president and chief operating officer of KFF and executive director of the Public Opinion and Survey Research Program
• Misinformation vs. Immigrant Experiences Using Health Insurance and Other Programs, by Samantha Artiga, a vice president at KFF and director of the Racial Equity and Health Policy Program
• Protecting People with Pre-Existing Conditions, by Cynthia Cox, a vice president at KFF and director of the Program on the ACA.
• The VP Debate May Focus on the “Working Class,” But Will They Discuss Medicaid?, by Robin Rudowitz, a vice president at KFF and director of the Program on Medicaid and the Uninsured
• A Brief History of the Affordable Care Act, by Rakesh Singh, vice president of Health Policy Initiatives at KFF
• Protecting People with Pre-Existing Conditions 

Biden's State of the Union Address: 13 Health Care Take-aways

Becker's Hospital Review takes a look at "13 healthcare takeaways" from President Biden's State of the Union address last evening. They include:

1. Expanding Medicare's drug price negotiation scope
2. Limiting drug costs
3. Expanding rebate requirement
4. Closing Medicaid coverage gap [for 10 states, including Texas, that haven't expanded eligibility]
5. Capping the cost of insulin
6. Abortion access
7. COVID-19
8. Affordable Care Act
9. Women's health
10. Taxes
11. Gun violence
12. PACT Act [Resources for Veterans]
13. ARPA-H (Advanced Research Projects Agency for Health ) 

Healthiest & Unhealthiest Counties in the U.S.: Texas is Tops on One of These Lists

Market Watch's latest report (January 5) ranks 576 counties based on "14 key metrics that capture the individual, environmental and structural aspects of health for a given community. This includes measures such as life expectancy and health insurance coverage, water and air quality, and food insecurity and healthcare access." Here are the high- and low-lights:

Healthiest counties:

1. Marin County, Calif.

2. Gallatin County, Mont.

3. San Francisco County, Calif.

4. Arlington County, Va.

5. Maui County, Hawaii

6. New York County, N.Y.

7. Boulder County, Colo.

8. San Mateo County, Calif.

9. Chittenden County, Vt.

10. Bergen County, N.J. 

Unhealthiest counties: 

1. Harris County, Texas

2. Apache County, Ariz.

3. Pinal County, Ariz.

4. Webb County, Texas

5. Hidalgo County, Texas

6. Navajo County, Ariz.

7. Cameron County, Texas

8. Orange County, Texas

9. Livingston Parish, La.

10. Jefferson County, Texas 

No state appears on either list more than three times except for one: Texas. And it's the list no self-respecting government (at the state or county level) should want to be on.

If I were of a statistical bent, I'd compare these lists with three other metrics: per capita income, per capita governmental expenditures, and a map of cancer "hot spots." Interestingly, Medicaid expansion does not seem to play as great a factor as one might expect. Louisiana and Arizona share space on the "Unhealthiest" list, and both are states that expanded Medicaid eligibility. But is it a coincidence that the state with six out of ten counties on that list has not expanded Medicaid eligibility? I believe it has to be a factor. Compare the map at the top with the Kaiser Family Foundation's map of expanded-eligibility states (click to expand the images):

Maternal Mortality: New JAMA Article and Video

JAMA has published a free online article, "Maternal Mortality Crisis and Extension of Medicaid Postpartum Coverage", but before reading this valuable article, I strongly recommend the accompanying video that explores the reasons for this country's dismal record and the resulting tsunami of individual and family suffering and misery. For an investment of a mere 30 minutes, this video offers a lot of lessons, busts dangerous myths that surround maternal mortality. It's a deep and subtle dive into causes and possible solutions. For starters, JAMA's Editor-in-Chief, Kirsten Bibbins-Domingo, PhD, MD, MAS, introduces three take-aways with this comment: "A recent release from the National Center for Health Statistics in March of 2023, covered by JAMA Medical News, makes the case for the importance of this issue with the numbers in the US from 2021. There are three things that are striking in the numbers on maternal mortality in the US."

1. The first is that they're high. The US rate for 2021 was 32.9 maternal deaths per a hundred thousand live births. This is a number more than 10 times the estimated rates for other high income countries. Countries like Australia, Austria, Israel, Japan, and Spain, all hover between two to three deaths per a hundred thousand live births. 
2. The second important point is that the numbers are strikingly high in particular populations in the US, most notably Black women whose mortality rates are more than two and a half times that of white women. Hispanic women's mortality rates are at an all time high and surpassing those of white women. For other populations without appropriate data collection, we can't quantify the disparities accurately, and this is needed if we are to design interventions and allocate resources across all communities and populations. For example, data regarding American Indian women are rarely highlighted even though they have a high prevalence of poor outcomes. And in Asian populations, data disaggregation is needed to understand and interpret the true trends. 
3. The third important point, the one that really got to me in this new report, is that the trends are getting worse. More than 1200 people died of maternal causes in the US in 2021, a 40% increase from the previous year. And in every group examined in this new report across all races and ethnicities, across all ages of pregnant people, the trends are getting worse over time. 

The Q&A that follows brings together three women who are practicing physicians, researchers, or both. It's an incredibly insightful colloquy.

This is prelude to the article cited above by Eli Y. Adashi, MD, MS; Daniel P. O’Mahony, MSLS; I. Glenn Cohen, JD. The point I want to emphasize is the connection between the mortality crisis and the law, specifically Medicaid.

The video panelists all seem to agree that the post-partum period is the most lethal yet the one where our healthcare "system" fails women:

One in 3 pregnancy-associated deaths occur within 1 year of childbirth. Thus the extension of Medicaid postpartum coverage from 60 days (the duration required by federal law) to 12 months has emerged as a key strategy to address the US maternal mortality crisis.2 This Viewpoint assesses the maternal mortality crisis in the US, calls for an extension of Medicaid postpartum coverage, and discusses the residual challenges across the US related to maternal health.

States are currently free to extend post-partum coverage of their Medicaid programs, but not many have done so. Of particular interest to Texans and others who live in states whose legislatures and governors have not expanded Medicaid eligibility pursuant to Obamacare's generous federal match, the situation is even worse:

Although some individuals may qualify for extended postpartum Medicaid coverage because of their economic circumstances (ie, those with incomes ≤138% of the federal poverty level), many others are likely to no longer be eligible for Medicaid coverage, especially in the states that have not expanded Medicaid coverage.3 Postpartum individuals who reside in nonexpansion states can only qualify for Medicaid as parents.3 However, Medicaid income eligibility levels for parents are much lower than those for pregnant people.3 It follows that many individuals living in nonexpansion states become uninsured after their pregnancy-related coverage ends at 60 days’ postpartum.

How on earth can this continue?

Public Health Law Priorities to Pursue While Congress Recesses

The American Public Health Association (APHA) sent out its call to action during the current Congressional recess. In addition to providing advice on how to press your views on public-health issues while the Senators and Representatives are away, the APHA missive provides links to a wealth of policy papers, reports, and the like across a broad spectrum of public health. And its not only about Congress. As the APHA suggests, state and local officials -- traditional wielders of "police powers" -- also need to be educated about public health, about which so much misinformation and disinformation emerged during COVID. And there are op-ed opportunities. The list goes on . . . .

Congressional recess is here (July 31 – Sept. 11 for the House and July 31 – Sept. 4 for the Senate) which makes this month the perfect time to raise your public health voice and urge your members of Congress to take action. Join the Speak for Health campaign with APHA’s suggested advocacy activities:

•  Got a minute? Head over to APHA’s action alerts and send a quick message to your elected officials on a variety of topics including environmental health, reproductive rights, gun violence and public health funding.
• Schedule a meeting with your members of Congress, virtually or in person, to discuss public health priorities. You can call their local offices for details on scheduling a meeting.
• When speaking to elected officials, point to APHA’s 2023 advocacy priorities as key areas for action.
• Boost your advocacy efforts with issue fact sheets that summarize priority advocacy issues and state fact sheets that break down public health in each state.
• Write and submit an op-ed to your local paper. APHA offers op-ed writing tips and sample op-eds on gun violence, climate change, public health funding and reproductive health which you can request by emailing speakforhealth@apha.org.
• Engage elected officials on social media about their support for public health. You can include social media shareable images found on the Speak for Health page, and make sure you use the hashtag #SpeakForHealth!
• Attend a town hall and ask your elected official key questions about their commitment to supporting public health. You can contact their office to ask when the next town hall is scheduled.

Your voice helps shape how members of Congress view critical public health issues, and your community’s public health concerns deserve to be heard by our nation’s leaders. Join us and Speak for Health — for today and for future generations.

The APHA 2023 advocacy priorities cover a lot of territory and offer something for everybody:

• Increase and protect funding for vital public health agencies and programs and strengthen the nation’s public health infrastructure. 
• Uphold the Affordable Care Act and expand access to health coverage and services. 
• Address the health impacts of climate change. 
• Protect access to reproductive health care. 
• Pass a 2023 Farm Bill to protect nutrition security. 
• Protect nutrition standards for children. 
• Uphold and strengthen critical public health laws and regulations and reverse damaging rollbacks. 
• Address the nation’s gun violence epidemic.

For more information on APHA’s advocacy priorities, visit https://www.apha.org/advocacy or contact Don Hoppert at Donald.Hoppert@apha.org or Jordan Wolfe at Jordan.Wolfe@apha.org.   

Billions (and Chevron?) at Stake in SCOTUS's Medicaid Case

It's a health-law-heavy docket this year over at SCOTUS. Next up for oral argument (Nov. 29) is Becerra v. Empire Health Foundation (No. 20-1312; SCOTUSBlog summary). The case involves the somewhat mind-numbing question of how to calculate the "Medicare fraction," one of two ratios that, when combined, determine whether a hospital is entitled to supplemental Medicare reimbursement adjustments  as a Disproportionate Share Hospital (DSH) -- that is, a hospital that provides care to a large number of low-income patients. A 2004 change in the calculation of the Medicare fraction resulted in higher DSH payments to some hospitals and lower payments to others. The other fraction is the "Medicaid fraction."

This is a statutory-interpretation question: do the phrases “entitled to benefits under [Medicare] part A” [42 U.S.C. § 1395ww(d)(5)(f )(vi)(I)] and "eligible for medical assistance under [Medicaid]" [42 U.S.C. § 1395ww(d)(5)(f)(vi)(II)]. Professor Alison K. Hoffman does a nice job unpacking the issues over at the Commonwealth Fund's blog.

HHS's merits brief makes a strong pitch for Chevron deference. With the conservatives on the Court grousing about Chevron for the past decade or two, it will be interesting to see how far the government is pushed on that point during oral argument.

SCOTUS grants review in 4 health law cases

The 2021 Term will be a lively one for health lawyers in light of yesterday's grant of four petitions for review (two Medicare cases, one Medicaid case, and a PPACA case that doesn't involve a challenge to the constitutionality of the law):

• American Hospital Association v. Becerra, No. 20-1114, a challenge to a Department of Health and Human Services rule that cut Medicare reimbursement rates for prescription drugs for hospitals that participate in a program for underserved communities. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the reimbursement cut was a reasonable interpretation of the Medicare statute; the justices on Friday agreed to weigh in on whether that deference is appropriate in this case. The court also asked both sides to discuss whether the challenge is barred by a provision of federal law that limits judicial review of certain Medicare-related calculations.
• Gallardo v. Marstiller, No. 20-1263, in which the court will decide whether a state Medicaid program can get reimbursed for past medical expenses that it has paid by taking money from a settlement or jury award that is intended to compensate for future expenses.
• Becerra v. Empire Health Foundation, No. 20-1312, a dispute over how to calculate additional payments under the federal Medicare program for hospitals with a large number of low-income patients.
• CVS Pharmacy v. Doe, No. 20-1374, in which the court will consider whether the Rehabilitation Act, which bars discrimination on the basis of disability by any program or activity receiving federal funding, and the Affordable Care Act allow plaintiffs to bring claims alleging that a policy or practice disproportionately affects people with disabilities.

Texas Blows it Again on Medicaid Expansion

Health Affairs has posted a nice summary of the Biden Administration's attempt to entice the hold-out states to expand Medicaid pursuant to the ACA (though it unfortunately has absolutely no relevance to Texas -- read on):

In the newest addition to our “Eye On Health Reform” series, Katie Keith covers the American Rescue Plan Act, which was signed into law by President Joe Biden in March.

Keith explains that the legislation temporarily expands the Affordable Care Act’s premium tax credits and increases federal financial incentives for holdout states to expand their Medicaid programs. Keith also explores enrollment trends in states that use HealthCare.gov, current ACA litigation, and ACA guidance from the Biden administration.

I wrote about an earlier plan to pay hold-outs on Feb. 16, back when the prospects for expansion in Texas seemed, if not bright, at least alive. By my count there were five House bills, two Senate bills, four House Joint Resolutions, and three Senate Joint Resolutions that would have authorized (or required) Texas to take advantage of the federal dollars that would become available if Texas were to expand Medicaid eligibility to 138% of the federal poverty limit. Would it be cynical of me -- or simply realistic -- to report that every single one of these proposals died in committee? Every one! What is there to say other than it really sucks to be poor and live in Texas, where the legislature seems determined to keep a minimum level of health care out of reach for five million of its citizens.

For the record, here are the links to the bills and JRs, along with the names of co-sponsors:

HJR 9, 23, 24, 86
SJR 11, 14, 15
HB 143, 398, 513, 1730, 4406
SB 38, 119

"What Has President Biden Done in Health Care Coverage in His First 100 Days?"

There is a new Commonwealth Fund report by Tim Jost and Mark Regan looks at executive orders, legislation, and litigation in the Biden Administration's first 100 days. The focus is on strengthening and expanding the ACA and Medicaid, largely (but not entirely) by undoing the damage wreaked by the previous administration, which seemed hell-bent on increasing the sum total of human misery across the board.

Medicaid Expansion in Texas: The Time is Now

The Legislature is back in session. A bill has been introduced to authorize Texas to accept the federal government's offer to pay for 90% of the cost of expanding Medicaid eligibility to include all Texans under the age of 65 (when Medicare kicks in) and whose income does not exceed 138% of the federal poverty level: HB 1730, introduced by Republican Representative Lyle Larson. Sen. Johnson's own companion bills are SB 118 and SB 119.

The case for expansion is made in a most compelling and entertaining video (10.5 minutes) by Senator Nathan Johnson (D-Dist. 16 (which covers a big chunk of Dallas)). Please watch it. Share it with your family. Send it to your friends. Get involved. We have already waited too long, left billions of federal dollars on the table, and worst of all, we've ignored the health care needs of 1 million Texans who would benefit from expansion. Let's make this happen this year.

And thanks to DFW Hospital Council CEO Stephen Love for passing the video on to me.

Medicaid in Times of Crisis: A GAO Report (2 pp.)

It's short but sweet. The Government Accountability Office has issued GAO-21-343SP (02-17-2021), a nifty description and analysis of the role of the federal-state Medicaid program in times of crisis (e.g., epidemics and pandemics, economic recessions, natural disasters, and personal health crises). Specific examples over the past 15 years include Hurricane Katrina, the Great Recession, the opioid epidemic, and of course COVID-19. 

This is further proof, as if any were needed, that Texas's policy of not expanding Medicaid eligibility at largely federal expense isn't only hurting the indigent (and largely minority) individuals -- including millions of kids -- that legislators seem keen to punish for being, you know, indigent, nonwhite, and young. The policy is also depriving public-health officials of an important tool in times of great public need.