Fate of Biden's vaccine mandates rests with justices

Jan 07, 2022

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QUICK FIX

— All eyes are on the Supreme Court as the justices plan to hear arguments about vaccine requirements for workers.

— The people processing all our Covid-19 tests are out sick with – you guessed it — Omicron … all while labs expect record demand.

— About half of Americans back the CDC's shortened isolation guidelines, though there are disparities.

WELCOME TO FRIDAY PULSE — I'm Rachael Levy, a new reporter on POLITICO's powerhouse health team, filling in again for Adam and Sarah. I cover health care providers, insurers and pretty much anything related to how we pay for health care, especially via CMS programs like Obamacare, Medicare and Medicaid. Do you have a story idea, news tip or suggestion for what we should cover more of (or less)? Reach me at rlevy@politico.com or on Twitter at @rachael_levy.

A message from PhRMA:

In today's health care system, PBMs and health insurers often leave patients paying far more than they should for medicines. Unfortunately, the drug pricing plan being considered by Congress would do nothing to address the shady practices these middlemen use to overcharge patients. Our seniors deserve better. Tell Congress to make middlemen share the savings they receive with patients at the pharmacy counter. Learn more.

Driving the day

SCOTUS HEARS VAX CASES — The Supreme Court is hearing big vaccine mandate arguments this morning as Covid-19 infections surge to record highs nationwide.

The special session, scheduled to last two hours, is the culmination of months of litigation over whether the White House has the legal standing to issue the pair of emergency rules in an effort to protect Americans from contracting coronavirus while at work, POLITICO's Eleanor Mueller reports.

Justices will decide whether the Labor Department can require employers with 100 employees or more to mandate their workers get vaccinated — or agree to wear a mask and submit to weekly testing. They'll also consider a separate rule requiring employees of health care facilities that receive federal funding to get vaxxed, with no testing opt-out.

Both regulations, which would affect tens of millions of workers , have been in legal limbo since the agencies published them last year. The administration says requiring vaccinations is needed to rein in rampant infections that strain health care systems in many regions.

The mandate for health workers could boost vax rates significantly in the health sector. According to data compiled last week, about one in four hospital workers — 22.4 percent — isn't vaccinated, the CDC told me. (One caveat: Data accounts for only about 39 percent of facilities, which voluntarily reported their info to the CDC.) Vax rates for nursing home staff are similar — about one in five remain unvaccinated.

The mandate for health workers has been in flux since lower courts froze it in two dozen mostly Republican-led states, creating confusion for health care providers, I reported last month. The states opposing the requirement argued it was unlawful and would exacerbate health care staffing shortages, particularly in rural areas.

TRULY VIRAL — Testing laboratories at the center of efforts to track Covid-19's spread expect to face record demand in the coming weeks while their workforces are depleted by the very virus they're surveying, POLITICO's David Lim reports.

Public health experts and testing company executives think the surging Omicron variant could upend efforts to use Covid-19 testing to keep schools open, treat patients and ensure public life can continue.

The Biden administration is relying on testing to keep the country going and avoid a return to strict public health controls. But there may not be enough workers to process an avalanche of tests. Vault Health CEO Jason Feldman, whose company runs Covid testing programs, said about 40 percent of the staff at one of the company's Northeast labs recently got sick, stretching the time it takes to turn around results.

"I think what's going to happen is as this thing moves across the big population states like Texas and California, the s— is going to really hit the fan because there's just not enough capacity of people, lab techs to keep these labs going," Feldman said.

AMERICANS ARE SPLIT ON CDC'S ISOLATION ADVICE — About half of Americans back the CDC's new guidance on a shorter Covid-19 isolation period, according to a poll by Morning Consult. Fifty-three percent of adults support the change, 30 percent disapprove and 17 percent have no opinion. "There are gaps, though," Morning Consult notes. "Women, younger adults and those in households earning less than $50,000 per year were all less likely to say they approve of the new guidance."

More highlights:

— Fifty-one percent of adults said the move was intended to boost the economy; 25 percent said it was to protect public health and curb the spread of the virus.
— Thirty-six percent said the guidance will mostly help health care workers, and 32 percent said it will mostly hurt them.

CDC CLARIFIES ISOLATION RULES FOR NURSING HOMES — An official with the CDC's Covid-19 response said Thursday the agency's shortened isolation guidance — allowing individuals to leave Covid-19 isolation without a test after five days — doesn't apply to nursing homes.

"That guidance for the general public is not intended for the nursing home population, and it's not intended for nursing home residents, nor is it intended for individuals who work in nursing homes," said the CDC's Lauri Hicks during a call with nursing home leaders. "And even when we're talking about visitors to nursing homes, we do not want individuals who are visiting nursing homes to apply this guidance and then go see a family member who might be vulnerable."

This differs from CDC's published guidance for health care facilities, which advises on three situations involving staff shortages — at conventional, contingency and crisis levels. (Facilities determine which protocol to follow, a CDC spokeswoman told me.)

In the most severe situation — "crisis" — infected workers can continue working at a nursing home. At a "contingency" level, infected workers can return to work after five days with or without a negative test, as long as they have no or mild symptoms. At a "conventional" level, the CDC says workers can return after seven days if they test negative or after 10 days without testing, along with other criteria.

A message from PhRMA:

IN THE STATES

WV ASKS FOR BIDEN'S OK ON 4TH VAX SHOTS — West Virginia Gov. Jim Justice said Thursday he's seeking the Biden administration's permission to administer fourth doses of the Pfizer-BioNTech and Moderna Covid-19 vaccines to essential workers and residents 50 and older, POLITICO's Lauren Gardner reports.

The Republican governor is basing his request on much of the same data the FDA and CDC have used to support their recent decisions on offering booster shots to Americans. As of Wednesday night, everyone 12 and older is eligible for a booster.

"Just like West Virginia has led the nation time and again throughout this pandemic, Israel has led the world. And, right now, Israel is offering a fourth dose to an even bigger population — people who are four months out from their Pfizer or Moderna booster shots," Justice said. "What we want to do is walk hand-in-hand with Israel."

Justice said the state is asking for permission to give a second booster to "essential workers" — such as health care workers and grocery store employees — and people 50 and older and "anyone who is compromised" and are at least three months past their first booster dose.

STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president's ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today.

Inside the Humphrey Building

TIME'S UP — A slew of flexibilities and funding associated with the public health emergency declaration expires on Jan. 16, prompting advocates to urge the Biden administration to extend it, Megan R. Wilson reports.

The American Health Care Association and National Center for Assisted Living on Thursday wrote to Health Secretary Xavier Becerra, saying the rapid spread of the Omicron variant necessitates another extension.

"Now is not the time to let crucial supports and flexibilities necessary to combat the virus end," wrote Mark Parkinson, who helms the groups. "More than half of nursing homes are limiting new admissions at a time when overwhelmed hospitals need our assistance to free up precious beds due to the Omicron surge."

In addition, a hospital advocate told POLITICO they have been in contact with the White House and the Department of Health and Human Services seeking assurances that the public health emergency would be extended. Both the White House and HHS didn't respond to a request from POLITICO for comment, though multiple lobbyists said they expected the administration to issue another 90-day extension.

MEDICARE TWEAKS — The Biden administration Thursday proposed a new rule that aims to lower prescription drug prices for Medicare Part D beneficiaries by taking aim at fees paid by pharmacies to drug middlemen, POLITICO's Megan Wilson reports.

The proposal, one of several the Centers for Medicare and Medicaid Services released , includes moving any fees and rebates that Medicare Part D plan sponsors and their pharmacy benefit managers extract from drug manufacturers — collectively known as pharmacy price concessions — to the point of sale, passing on any savings to patients at the pharmacy counter.

Names in the News

Michael Felberbaum, an FDA staffer and former Associated Press reporter, has been tapped as the FDA's assistant commissioner for media affairs. He had previously been serving in an acting role.

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What We're Reading

In STAT, a radiation oncologist argues, "NRC's foot-dragging on irradiation rule suggests regulatory capture."

"Some health advisers to Biden's transition team call for a new Covid strategy in the U.S.," reports The New York Times.

"Can You Use Throat Swabs for At-Home Covid Tests? Here's What the FDA Has to Say," reports Prevention's Korin Miller.

A message from PhRMA:

Last year, brand drug companies provided $187 billion in total discounts, rebates and other payments to pharmacy benefit managers, insurers, and other entities. In fact, the net prices paid by PBMs and health plans for brand medicines declined 2.9% last year, on average. So how come payers and middlemen often don't share these savings with patients at the pharmacy counter? Policymakers should put an end to these gimmicks so patients can get a fairer deal at the pharmacy. Learn more.