Monday Musings

SCOTUS

Monday Musings

David Ermer–Congress, COVID-19, Electronic health records, SCOTUS–

Here’s a musing for you. The FEHBlog expects that everyone is familiar with the spiritual titled “Sometimes I feel like a motherless child.” Well after reviewing lots of news, the FEHBlog to paraphrase this spiritual sometimes feels like the only person in America who believes that the U.S. healthcare system can pull us through this pandemic.

The House and Senate announced today that each body of Congress will be returning to Capitol Hill next Monday May 4. Welcome back.

In a decision sure to delight health insurers that took the initial plunge with the ACA marketplaces back in 2014, the U.S. Supreme Court ruled today in a virtually unanimous opinion that the U.S. owes many of those insurers a total of roughly $12.3 billion for unappropriated yet mandated risk corridor payments. The only dissenter was Justice Alito who agreed that the government owed the money but questioned whether there was a private right of action under the ACA to sue the government for the money. It’s not a crazy thought because the government is generally protected against lawsuits by a doctrine known as sovereign immunity.

The FEHBlog thought that this would be a good opportunity to update readers on the major commercial COVID-19 testing sites:

Castlight offers a COVID 19 testing directory which organizations can link to their own websites.

Verily Health, which is an affiliate of Alphabet/Google, has “launched COVID-19 Pathfinder— a new set of tools that provide on-demand access to COVID-19 information directly from a hospital or health system website.” Cool.

In a bit of good news for HHS, Fierce Healthcare reports that the EPIC, the electronic health record (“EHR”) giant, has switched from “fiercely” opposing to supporting the HHS EHR interoperability rules. “Epic controls more than a quarter of the hospital EHR market, according to KLAS Research, and, among hospitals with 500 or more beds, Epic has a 58% market share.”

Monday Musings

David Ermer–Congress, COVID-19, OPM, SCOTUS–

Becker’s Hospital Review provides a helpful update of today’s top seven COVID-19 news items.

Healthleaders Media interviews “Karen Murphy, PhD, RN, executive vice president and chief innovation officer at Geisinger, and founding director of the Steele Institute” for Health Innovation about COVID-19 and lessons for the future.

HL: Is telehealth among the initiatives that should be expanded? What else?

Murphy: Virtual care is one thing that I think will transform the healthcare industry. And, we’re looking at what we need in terms of infection control. How do we change our practices?

Federal News Network reports on legislative ideas coming from the majority leadership of the House Oversight and Reform Committee. With regard to the FEHBP, the leaders

recommended allowing federal employees to change or opt into new insurance plans during a health emergency like the current pandemic.

Currently, FEHB participants have one chance a year, usually a four-week “open season,” to make changes to their health insurance plan.

In addition, the chairmen suggested allowing employees to extend eligibility for their federal health, dental and vision benefits to qualifying dependents for an additional year. Some children, for example, may age out of their family’s current health plans during the coronavirus pandemic, they said.

The FEHBlog recalls that approximately 15% of FEHBP eligible employees decline FEHBP coverage in favor of taking coverage under his or her spouse’s employer sponsored coverage. We the rapid employment loss due to the great hunkering down, it would make sense for OPM to remind federal employees that losing other health coverage is a qualifying life event that allows them to rejoin the FEHBP for themselves and their eligible family members. OPM prominently notes that “Generally, if you choose to make a change to your enrollment, you must make the change within 60 days of the event.”

Today, the U.S. Supreme Court, which had cancelled its March and April oral arguments, rescheduled ten of those cases for telephonic oral argument in May. “The Court anticipates providing a live audio feed of these arguments to news media.” Normally the press desiring live feeds would have listen to the oral argument in person at the Court. Transcripts of the oral argument come later.

Friday Stats and More

David Ermer–COVID-19, Rx coverage, SCOTUS–

The number of COVID-19 cases continues to grow along with the COVID-19 death rate (number of deaths over number of cases per the CDC). The FEHBlog’s statistics are drawn from the CDC’s now daily Cases in United States Summary.

Cause3/203/274/3
Travel2907121388
Person to Person31013264325
Uncategorized984283318233,566
Total Cases10,44285,356239,279
Total Deaths 15012465442
Death Rate1.44%1.46%2.27%

For context, the CDC’s latest Fluview “estimates that so far this season there have been at least 39 million flu illnesses, 400,000 hospitalizations and 24,000 deaths from flu.” That represents a death rate of less than one tenth of one percent (0.06%). Fortunately this flu season appears to be subsiding. The CDC additionally “estimates that influenza has resulted in between 9 million – 45 million illnesses, between 140,000 – 810,000 hospitalizations and between 12,000 – 61,000 deaths annually since 2010.”

The FEHBlog has wondered where is the light at the end of the COVID-19 tunnel. He now appreciates the fact that we haven’t made it half way through the tunnel. Hang in there.

Not surprisingly but regrettably Govexec.com reports that thousands of federal employees have contracted COVID-19 and attempts to provide a numerical breakdown by agency.

In more upbeat news, MedCity News informs us that

The Food and Drug Administration has given an emergency use authorization to a test for Covid-19 that detects whether a person is infected through the use of antibodies. The FDA granted the authorization to Research Triangle Park, North Carolina-based Cellex, for the qSARS-CoV-2 IgG/IgM Rapid Test, according to a letter from FDA chief scientist Denise Hinton, sent Wednesday to Cellex CEO James Li. The test is designed to produce results in 15-20 minutes.

The advantage of antibody tests is that they not only are less likely to produce false-negative results, but can also be used to detect past infections, meaning that they can be used to determine if a patient without symptoms has previously had Covid-19 and could thus be immune to it. It could also be used to indicate stage of infection and estimate time since exposure. Nevertheless, according to the primer, a limitation to antibody testing is that the body’s immune response to SARS-CoV-2 is slow.

The Labor Department continues to add to its list of now 78 FAQs on the FFCRA’s COVID-19 paid sick leave law which took effect on April 1 while the U.S. Supreme Court cancelled its April oral arguments which would have occurred at the end of this month.

Monday Musings

David Ermer–CDC, Congress, SCOTUS, Uncategorized–

The FEHBlog got to work this morning around 8:30 am. Before he knew it, it was past 9:30 am, the time at which the Supreme Court releases online its orders from the latest conference of the Justices. He clicked on the Adobe Acrobat PDF link to the Court’s order list — no go. Bad PDF. He tried different browsers — same result. Twitter ho and there it was “blue State victory” the Supreme Court had agreed to review the Texas v. U.S. case holding the ACA’s individual mandate unconstitutional. The political comment did not make sense to the FEHBlog because only four Justices need to approve a petition for certiorari / review and there are four Democrat appointees on the Court. However, you need five Justices for a final victory. In any event by then the FEHBlog was able to open the Court’s order list and he found the following on page 3:

CERTIORARI GRANTED

19-840 CALIFORNIA, ET AL. V. TEXAS, ET AL.

19-1019 TEXAS, ET AL. V. CALIFORNIA, ET AL.
The motion of 33 State Hospital Associations for leave to file a brief as amici curiae in No. 19-840 is granted. The petitions for writs of certiorari are granted. The cases are consolidated, and a total of one hour is allotted for oral argument.

Case No. 19-1019??!! The FEHBlog was aware of the unmentioned Case No. 19-841 which is the House of Representative’s cert. petition. But what is Case No. 19-1019? It turns out that on Valentine’s Day the red states had filed a cross motion for review / cert with the Supreme Court. So it appears that both sides won at the first stage of the Supreme Court proceedings.

The Supreme Court will hear oral argument in the cases early in its next Term which begins on the first Monday in October 2020. There is no way the Court will decide the case before the Presidential election day on November 3. Hopefully, to avoid a political kerfuffle at the oral argument, the Court will schedule the argument for later in November.

Meanwhile the federal district court for the Northern District of Texas will hold off reconsidering the unconstitutional individual mandate’s proper degree of severance from the remainder of the massive law. The Fifth Circuit in its December order vacated the lower court’s initial decision that the remainder of the law was inseparable and therefore equally unconstitutional. The FEHBlog’s guess is that the Supreme Court took the case in order to short circuit that remand. But time will tell.

In another surprise, the FEHBlog learned along with the healthcare world today that President Trump will speak on the issue of electronic health record interoperability at the next Monday’s opening day of the monstrous HIMSS conference in Orlando, Florida. Health IT News reports that while former Presidents Clinton and Bush 43 have spoken at this conference, President Trump’s appearance will be the first by a sitting President.

Trump’s speech will touch on various aspects of interoperability, innovation and digital health. If past HIMSS conferences are any indication, his appearance may also be timed with the long-awaited final rules on information blocking and patient access from the Office of the National Coordinator for Health IT.

Another probable topic of discussion will be an update on the Trump Administration’s ongoing response to the COVID-19 coronavirus outbreak.

Again time will tell.

Medicare provides coverage for Americans under age 65 with end stage renal / kidney disease for Americans. However,

Medicare is the secondary payer to group health plans (GHPs) [including FEHB plan] for individuals entitled to Medicare based on ESRD for a coordination period of 30 months regardless of the number of employees and whether the coverage is based on current employment status.  Medicare is secondary to GHP coverage provided through the Consolidated Omnibus Budget Reconciliation Act (COBRA), or a retirement plan.

Given the FEHBP’s role in the early stages of this serious disease, the FEHBlog wanted to point out this Centers for Disease Control page on understanding chronic kidney disease. End stage renal disease is a later stage of chronic kidney disease. The CDC explains that

The two main causes of CKD are diabetes and high blood pressure. About 1 in 3 adults with diabetes and 1 in 5 adults with high blood pressure have CKD.

People may not feel sick or notice any symptoms until CKD is advanced. The only way people find out if they have CKD is through simple blood and urine tests. The blood test checks for creatinine (a waste product) in the blood to see how well the kidneys work. The urine test checks for protein in the urine (an early sign of kidney damage).

Here’s another reason why annual physical exams are important.

TGIF

David Ermer–SCOTUS–

The FEHBlog is out of town this weekend. He did check the Supreme Court’s order list this afternoon and nothing came out on the U.S. v Texas cases (Nos. 19-840 and 19-841). Next update will be 9:30 am on Monday when all of the orders from today’s conference are posted. We are waiting to learn whether or not the Supreme Court has decided to review the cases at this interim stage.

In other news —

  • PhRMA issued its own list of low value care that doctors should not prescribe / order and health plans should not cover. It’s worth a look.
  • The Employee Benefits Research Institute issued a one page graphic report on 15 years of health savings accountholder behavior.
  • Kaiser Health News posted another level headed story on the COVID-19 virus titled — “Growing Concerns Of Coronavirus Should Spur Plans – Not Panic – In The Workplace.”

Monday Musings

David Ermer–Federal employment benefits, SCOTUS, Uncategorized–

Today’s U.S. Supreme Court order list from its February 21 conference made no mention of the Texas v. U.S. cases (Nos. 19-840 and 19-841) concerning the Affordable Care Act’s constitutionality, one way or the other. This means that the Court will take up (or continue consideration of) the cases at a later conference. At this stage the Court is deciding whether to review the Fifth Circuit’s decision now or wait for further proceedings in the lower courts. The Court’s docket sheet states that the cases have been re-distributed for the February 28, 2020, conference.

The Federal Employees Dental and Vision Programs’ (“FEDVIP”) laws requires OPM to bid out all of the FEDVIP contracts every seven years. Currently OPM has contracted for 10 FEDVIP dental plans and four FEDVIP vision plans. Last week, OPM released its request for proposals for the next seven year FEDVIP contract cycle which begins on January 1, 2021. OPM states in the RFP document that it has capped the upper limit of dental plans at 12 and vision plans at 5. The deadline for submission of proposals is March 23, 2020. OPM expects to announce the successful contractors in May.

The Washington Post reports that the focal point of the national drug overdose crisis has shifted to the California and other western states. The drugs causing overdose deaths are principally two illicit drugs — fentanyl and methamphetamine.

In California, fatal drug overdoses over the previous 12 months increased 13.4 percent between July 2018 and July 2019, the last month for which the CDC has compiled provisional data — an additional 728 deaths.

Fentanyl delivers an immediate, powerful high but can also render the user unconscious and unbreathing almost instantly. * * * [San Francisco based harm reduction worker Kristen Marshall] noted that thousands of overdoses have been reversed by peers on the street who were supplied with naloxone as part of harm reduction efforts. For many years, San Francisco saw a growing population of drug users but had a strikingly low rate of fatal overdoses. But that was before fentanyl showed up.

In contrast, Illinois’ fatal drug deaths were down 8 percent, Pennsylvania’s down 10 percent, Michigan’s down 13 percent and Maine’s down 20 percent.

TGIF

David Ermer–OPM, SCOTUS–

The U.S. Supreme Court was scheduled to consider the cert petition in the Texas v. United States case (Nos. 19-840, 19-841) at today’s conference of the justices. That case of course concerns the constitutionality of the Affordable Care Act. If the Court decides to accept cert / review the lower court decision in a prominent case like this, the order frequently is announced on the same day. The Supreme Court, however, released no orders today. The Court is scheduled to issue orders at 9:30 am. The FEHBlog will be keeping watch.

The FEHBlog drove up to Long Island today to visit with family. On the way, he pondered OPM’s performance measure for its FEHB operations — “Percent of FEHB enrollees in quality affordable plans.” The FY 2017 result was 74.2% and the FY 2018 result was 70.9%. The FY 2020 result will be announced next month. Why the drop from one year to the next? Why doesn’t OPM explain how quality and affordability are measured for this purpose? By the way OPM’s target was 72% for FY 2020 and is 73% for FY 2021.

In other news –

  • The Centers for Medicare and Medicaid Services yesterday “issued a proposed rule in the Federal Register which proposes a three-year extension and changes to the episode definition and pricing in the Comprehensive Care for Joint Replacement (CJR) Model.” “This proposed rule proposes to change certain aspects of the CJR Model, including incorporating outpatient hip and knee replacements into the episode of care definition, the target price calculation, the reconciliation process, the beneficiary notice requirements, gainsharing caps, and the appeals process. Additionally, to allow time to evaluate the proposed changes, the rule proposes to extend the length of the CJR Model for an additional three years, through December 31, 2023, for certain participant hospitals. “
  • Today, the Department of Health and Human Services “released a comprehensive strategy to reduce the regulatory and administrative burden related to the use of health IT, including EHRs.” “”The taxpayers made a massive investment in EHRs with the expectation that it would solve the many issues that plagued paper-bound health records,” said CMS Administrator Seema Verma. “Unfortunately – as this report shows – in all too many cases, the cure has been worse than the disease. Twenty years into the 21st century, it’s unacceptable that the application of Health IT still struggles to provide ready access to medical records – access that might mean the difference between life and death. The report’s recommendations provide valuable guidance on how to minimize EHR burden as we seek to fulfill the promise of an interoperable health system.”

Good luck with those efforts.

Midweek update

David Ermer–ACA, Congress, Medicare, SCOTUS–

OPM and AHIP which co-sponsor the annual FEHBP Carrier Conference have posted the Conference agenda. The FEHBlog welcomes the half day of break out sessions has been added to the agenda. The conference which is held in Arlington Virginia will run from early Wednesday afternoon April 1 through late Friday morning April 3.

Earlier today, the House of Representatives, as expected, passed a bill to repeal the 2006 law obligating the Postal Service to pre-fund healthcare coverage for their annuitants. Businesses generally have to account for this type of cost as a liability, but don’t have to put the money aside as the Postal Service must (although the Postal Service has not been able to fund the cost since 2012).

The FEHBlog expects the Senate to adopt this bill which reflects reality. The FEHBlog wonders whether this action will deflate the long running effort to create a lower cost Postal Service program within the FEHBP. The next edition of a general postal reform bill will be telling on this point.

The Centers for Medicare and Medicaid Services today proposed changes to the Medicare Advantage and Part D prescription drug programs. Health Payer Intelligence explains that the proposals

will increase plans’ revenues by 0.93 percent. The proposed rule would extend Medicare Advantage eligibility to those diagnosed with end-stage renal disease (ESRD), lower cost-sharing on prescription drugs, and enforce greater transparency and comparability of out-of-pocket healthcare spending for different drugs. CMS also introduced measures to promote using generics and biosimilar

CMS explains that the agency “will accept comments on all proposals in the Advance Notice through Friday, March 6, 2020, before publishing the final Rate Announcement by April 6, 2020.”

Speaking of Medicare, Healthcare Dive discusses an intriguing Humana initiative to develop primary care centers for their Medicare Advantage members. “The new venture is likely to double the number of centers [Humana subsidiary} Partners in Primary Care operates. It currently runs 47 locations throughout Kansas, Missouri, North Carolina, South Carolina, Texas and Florida.”

The FEHBlog has been tracking the course of the Texas v. U.S. case through the U.S. Supreme Court (Consolidated Nos. 19-840, 19-841). A group of States and the House of Representatives have petitioned the Supreme Court to review a December 2019 Fifth Circuit opinion holding the ACA’s individual mandate unconstitutional and directing the lower court to reconsider the extent to which the remainder of this massive law is severable from the unconstitutional part.

The parties’ and amici (friends of the Court) briefing on the petition for review will be competed on February 12, 2020. The Court’s docket sheet revealed today that the briefs will be distributed to the Court for the February 21, 2020 conference.

The Court needs four votes to take the case for review. If the Court decides to grant review (or certiorari), the decision would be announced late afternoon on February 12. Otherwise, a decision to decline review would be announced the following Monday February 15. The Court may punt the case to later conference in which event the cases will not be referenced in the February 15 order. All of the briefs are available by searching the Court’s docket for one of the case numbers — 19-840 or 19-841.

Medcity News provides a useful list of prescription drugs that are going off patent in 2020. The list also projects the availability of generic competitors.

Midweek Update

David Ermer–Rx coverage, SCOTUS–

The FEHBlog wishes to remind his loyal readers that you may subscribe to FEHBlog emails which arrive with the full posts the morning after the post goes live. A subscription box prominently appears on the right margin of the FEHBlog page at ermersuter.com

Has any law generated more litigation in a short period of time than the Affordable Care Act??? Katie Keith in the Health Affairs blog provides a lengthy status report on the major ACA cases pending in the U.S. Supreme Court and the U.S. Court of Appeals.

In other judicial news, the U.S. District Court for the District of Columbia ruled yesterday that the Department of Health and Human Services failed to follow the Administrative Procedure Act in certain respects with respect to its 2013 and 2016 rule makings on access to medical records by patients and third parties such as lawyers and insurers. The details are explained in this Health Security IT article. Due to the importance of this issue to HHS, the FEHBlog expects the agency to take remedial administrative action quickly.

In good prescription drug news:

  • Healthcare Dive reports that pharmaceutical manufactures finally are rolling out biosimilar drugs which action will lower the cost of expensive specialty drugs over time.
  • CVS Health announced today “a new solution eliminating member out-of-pocket costs associated with all diabetes prescription medications, including insulin. Offered through the company’s pharmacy benefit manager (PBM), CVS Caremark, RxZERO enables employers and health plan sponsors to leverage formulary and plan design approaches to offer all categories of diabetes medications at zero dollar out of pocket for their members without raising costs for the plan sponsor or increasing premiums or deductibles for all plan members.”

Tuesday Tidbits

David Ermer–ACA, CDC, SCOTUS–

This morning without comment, the Supreme Court denied the motion of the petitioners defending the Affordable Care Act to expedite the Court’s review of the Fifth Circuit Court of Appeal’s decision on the ACA’s constitutionality (Nos. 19-840, 841). The FEHBlog has long given up on trying to predict Supreme Court decisions. Now. the respondents seeking to take down the law will have until shortly after the Super Bowl to submit their briefs. The petitioners will have an opportunity to reply, and then the Supreme Court can consider the petitioner in due course, perhaps late March or April. If the Court decides to review the Fifth Circuit opinion, which the FEHBlog assumes is unlikely, the case would be argued next fall. As yet, Federal District Judge Reed O’Connor has not begun the process of reconsidering his vacated decision holding the entire remainder of the ACA inseparable from the unconstitutional ACA individual mandate at least according to the docket sheet available on PACER. The stay order that the Judge Reed entered in December 2018 states in pertinent part that “The parties are directed to notify the Court upon the conclusion of the appeal of the partial judgment within 14 days of any decision.” As the Court is busy, it’s likely that the Judge will tend to other matters until the Supreme Court decides what to do at this stage at least in the FEHBlog’s view.

The Centers for Disease Control (“CDC”) announced today that the agency

is closely monitoring developments around a novel (new) coronavirus first identified in Wuhan, Hubei Province, China. Chinese authorities identified the new coronavirus, which has resulted in close to 300 confirmed cases in China, including cases outside Wuhan City, with additional cases being identified in a growing number of countries internationally. The first case in the United States was announced on January 21, 2020. There are ongoing investigations to learn more.

The Wall Street Journal reported over the weekend that

Nancy Messonnier, the CDC’s director for the National Center for Immunization and Respiratory Diseases, said that as health officials develop diagnostic tests and start testing people with symptoms who have traveled to Wuhan, more cases are likely to be identified around the world, including in the U.S. 

“As we start testing more, I expect that we’re going to see more cases,” she said. 

“I think it’s highly plausible there will be at least a case in the United States.” 

She called the spread a “serious issue,” but added that the CDC has “faced this challenge before.”

“Based on the info CDC has today, we believe the current risk from the virus to the general public is low,” Dr. Messonnier said in a telephonic press conference.

FYI, the Government Accountability Office (GAO) has issued a report on Artificial Intelligence in Healthcare: Benefits and Challenges of Machine Learning in Drug Development. Here’s a link to the GAO’s version of Cliff Notes on the report.