Breyer’s retirement sets high Senate stakes

Jan 27, 2022

Presented by Humana

With Ximena Bustillo

Editor's Note: POLITICO Pulse is a free version of POLITICO Pro Health Care's morning newsletter, which is delivered to our subscribers each morning at 6 a.m. The POLITICO Pro platform combines the news you need with tools you can use to take action on the day's biggest stories. Act on the news with POLITICO Pro.

QUICK FIX

— Reports that liberal stalwart Stephen Breyer will leave the Supreme Court fuel fears that key health care cases hang in the balance.

— The Agricultural Dept. will dispatch millions toward rural health care in a new plan to shore up health and social services in small communities.

— Boosters are beneficial even if you mix it up, the National Institutes of Health says in a report building on Biden officials' pleas to get boosted.

WELCOME TO THURSDAY PULSE — Wine is good for your health, says Wine Spectator magazine . I, for one, am convinced. Send tips to sowermohle@politico.com.

A message from Humana:

In 2022, older Americans are getting more out of Medicare Advantage. Many Americans turning 65 or who are new to Medicare have access to plans that provide supplemental benefits tailored to address key social health needs like food security, transportation, and in-home support services. Learn more about how Medicare Advantage plans are helping address members' whole health.

Driving the Day

BREYER SET TO RETIRE: WHAT IT MEANS — Supreme Court Justice Stephen Breyer plans to retire soon, potentially handing President Joe Biden a Supreme Court seat during a heated battle over abortion rights and a slew of cases with the potential to reshape health care and worker's rights.

The court's oldest justice at 83, Breyer weathered a year of pressure from liberal legal activists pressing the Clinton appointee to step aside and clear the way for Biden to appoint a younger justice, POLITICO's Josh Gerstein and Jonathan Lemire write. Biden pledged during his 2020 presidential campaign to nominate a Black woman to the Supreme Court, a promise the president "certainly stands by," White House press secretary Jen Psaki said Wednesday.

And yet: Although neither Breyer nor a spokesperson for the court confirmed the move Wednesday, Biden faces a long battle to appoint any new judge.

Democrats' razor-thin majority would make history if it confirms a successor — a 50-50 Senate has never done it before, congressional reporters Marianne Levine and Burgess Everett write. In essence, the White House needs a judge who is guaranteed to garner support from every member of the Democratic caucus.

That said, Democrats have some comfort as long as they stay unified — Republicans can't stop Breyer's successor because the GOP scrapped the 60-vote threshold on high court nominees in 2017.

In the meantime: Abortion rights hang in the balance as the conservative-leaning court — regardless of Breyer's status — prepare to hear a Mississippi case that could reshape and severely limit abortion access.

"The news of Breyer's retirement comes at a critical moment in the fight for our fundamental rights and freedoms," pro-abortion group NARAL Pro-Choice America wrote in an email. Democratic senators also issued a flurry of statements urging rapid action amid health care and voting rights' battles.

But even if Biden acted today, it's virtually impossible to believe a new justice would be in place before the key hearings this year.

USDA UNVEILS RURAL HEALTH INVESTMENTS — Agriculture deputy secretary Jewel Bronaugh announced on Wednesday a $1 billion investment out of the fiscal 2022 budget to help improve and build infrastructure in rural areas with an emphasis on healthcare facilities.

In the details: Forty-eight states and Puerto Rico and Guam are slated to receive some of the funding for more than 730 projects that range from hospital expansions and construction to medical and firefighting equipment purchases, Ximena writes.

"These loans and grants will help rural communities invest in facilities and services that are vital to all communities, such as health care facilities, schools, libraries, and first responder vehicles and equipment," Bronaugh said in a statement.

The announcement came after the deputy's visit to a Bessemer-area hospital in Alabama alongside Undersecretary for Rural Development Xochitl Torres Small. Alabama will receive more than $350 million to strengthen access to health care in rural communities in the state, according to the department.

MORE EVIDENCE FOR BOOSTERS, MIX-AND-MATCH — The data pans out for getting a booster vaccine , even if it's not your original shot, the National Institutes of Health said Wednesday as clinical trial results were published in The New England Journal of Medicine.

Those findings already formed the foundation for Food and Drug Administration and Centers for Disease Control and Prevention guidance recommending broad booster dosing, though uptake has been slow.

What they found: The study enrolled 458 adults split about evenly to receive booster doses made by Moderna, Pfizer and BioNTech, or Johnson & Johnson. Some got the vaccine they'd initially received, while others got a different shot.

All combinations of primary and booster vaccines increased antibody levels; researchers concluded that both uniform regimens and mix-and-match "will increase protective efficacy" against the virus.

Participants also kept diaries, and while more than half reported headache and muscle pains, no one had serious side effects.

A message from Humana:

Industry Intel

A NEW HEALTH WATCHDOG IN TOWN — The Institute for Health Policy Accountability launches today with a bipartisan roster forming its ranks.

Former New Mexico Gov. Susana Martinez, a Republican, is the group's first board chair. She laid out her priorities in a RealClear Policy op-ed this week, citing surprise bills, pharmacy benefit managers and supply chain transparency: "To put it simply: We need to pull back the curtain on the special interests who promote the status quo at the expense of reform."

Also on board: Former Ohio Gov. Ted Strickland, a Democrat, is a senior adviser, while Blake Harris, former chief of staff for Tennessee Republican Gov. Bill Lee, and Chris Pair, former adviser for Oregon Democratic Gov. Kate Brown, both join the board of directors.

In Congress

MONTANA LAWMAKERS URGE RURAL EXEMPTION FOR HEALTH WORKERS — The state's top Republicans are pressing the Biden administration to exempt rural Montana health workers from vaccine requirements, arguing the mandate could exacerbate staff shortages.

"Like many states across the nation, Montana is already facing labor shortages, especially in the healthcare industry, which severely threaten patient access to lifesaving medical care," Sen. Steve Daines (R-MT), Gov. Greg Gianforte and Rep. Matt Rosendale wrote in a letter to top health officials. "Given the Supreme Court's decision, we are deeply concerned that the vaccine mandate will penalize healthcare entities that simply cannot comply with the mandate due to ongoing workforce challenges."

Names in the News

Chris Middendorf has joined Hogan Lovells' global regulatory practice as a director of regulatory affairs. He comes from more than two decades at the Food and Drug Administration, where he worked in senior inspections, compliance and policy roles. Hogan Lovells says Middendorf will work with life-science clients, with a focus on quality, manufacturing and compliance issues.

Elizabeth Brown joins the Children's Hospital Association as vice president of legal affairs. Brown most recently worked as legislative director for Rep. Kathy Castor (D-FL) and advised Castor on health policy.

Kimberley Smathers is the newest managing director for ATI Advisory, where she'll focus on Medicare and Medicaid issues. Smathers previously focused on those topics at Tthe Lewin Group.

Josh Karetny has joined Graphite Health as the digital health company's first head of policy. He was most recently acting chief of staff for Sen. Sheldon Whitehouse (D-RI).

What We're Reading

The administration quietly diverted $7 billion from the Provider Relief Fund to pay for Covid-19 drugs and vaccines, according to a document obtained by Stat News' Rachel Cohrs.

Schools need to rethink masking policies for children because of questions about effectiveness and whether kids can even wear masks correctly, infectious disease scientist Margery Smelkinson, veterinarian Leslie Bienen and emergency medicine doctor Jeanne Noble write in The Atlantic.

Pharmacy workers are exhausted and overworked two years into the pandemic, straining already tenuous resources even at major pharmacy chains still key to vaccine and testing efforts, Bloomberg's Angelica Peebles writes.

A message from Humana:

Medicare Advantage plans are evolving to meet the needs of Americans turning 65 or who are new to Medicare. With food insecurity and a lack of transportation making it difficult for many older Americans to seek care, supplemental benefits like transportation support and meal assistance can make a real difference in their lives. In 2022, more Medicare Advantage plans are providing meal assistance and transportation help, and the number of Medicare Advantage plans offering in-home support services doubled from 2021. Learn more about why 40% of people eligible for Medicare choose Medicare Advantage and how Medicare Advantage plans are supporting older Americans beyond the doctor's office.