SCOTUS cases could remake health policy

Presented by PhRMA: Delivered daily by 10 a.m., Pulse examines the latest news in health care politics and policy.

Oct 05, 2023 View in browser   By Chelsea Cirruzzo and Ben Leonard Presented by With Megan R. Wilson and Daniel Payne Driving The Day The Supreme Court is set to hear cases that could have wide-ranging effects on health policy. | J. Scott Applewhite/AP Photo FROM FISHING BOATS TO FRAUD — The most important health care cases headed to the Supreme Court this term seemingly have nothing to do with health care. Regulations covering small fishing boats and financial fraud are the subjects of some cases — part of a broader conservative effort to hamper the administrative state. Their outcomes could set precedents that block the FDA from expanding abortion pill access, the CDC from implementing pandemic safeguards and HHS from directing insurance companies to cover preventive care, POLITICO’s Alice Miranda Ollstein and Lauren Gardner write. Several cases that more directly target health agencies are winding through lower courts now, and their end results could hinge on how the Supreme Court rules this term. Legal experts, patient advocates and former health officials from both parties warn that should the court constrain agencies’ powers, a slew of health policy decisions would be punted to a gridlocked Congress. “This is a really key feature of effective government,” said Dr. Mark McClellan, a former FDA commissioner and CMS administrator under then-President George W. Bush, told POLITICO. “Disrupting that reliability — not having an effective mechanism to replace it with — means more uncertainty about health, probably less investment … needed to keep Americans safe.” Conservative groups behind the efforts say health policy is an area where the federal government has overstepped. “We’ve seen many recent examples where an agency may purport to have expertise in an area, but when it exceeds its statutory authority to prescribe new laws or regulations on a vast group of society or industry, then it’s the court’s obligation to rein in that unlawful activity,” said Erik Baptist, a senior counsel for Alliance Defending Freedom working on several challenges to federal agency powers. WELCOME TO THURSDAY PULSE. Does watching “Love is Blind” count as relaxing after work? Send your tips on how you relax after work, scoops and feedback to bleonard@politico.com and ccirruzzo@politico.com and follow along @_BenLeonard_ and @ChelseaCirruzzo. TODAY ON OUR PULSE CHECK PODCAST, host Alice Miranda Ollstein talks with POLITICO’s labor reporter Nick Niedzwiadek, who explains what the nearly 75,000 Kaiser Permanente health care workers on strike want and how the strike could affect the health care system.   A message from PhRMA: PBMs are siphoning money away from you.  They decide what you pay and what medicines you can get. PBMs steer you toward pharmacies they own that make them more money.  And, they’re creating new fees that pad their profits, but don’t benefit patients. Learn more.   Listen to today’s Pulse Check podcast PHARMA WATCH A retailer and supermarket pharmacies trade group is visiting Congress today to discuss several issues, including PBMs and food assistance programs. | Sean Meyers/CVS Health via AP Images SUPERMARKET SWEEP: STORE PHARMACY FLY-IN — FMI, The Food Industry Association, which represents retailers and supermarket pharmacies, is bringing 20 executives to Washington today to talk with policymakers and officials about a wide range of issues, including some health reforms moving through Congress and food assistance programs, Megan reports. Part of the effort includes pushing Senate leadership to move forward with measures targeting pharmacy benefit managers, companies that negotiate discounts on medicines with drugmakers and choose which drugs a health plan will cover. One of FMI’s priorities is prohibiting spread pricing in Medicaid, a practice in which PBMs reimburse pharmacies less than they charged the plan for the drug. In July, the Senate Finance Committee approved 26-1 legislation that includes the ban. The provision is also included in the GOP-led House health care package introduced in August. Critics like FMI say the PBM industry is anticompetitive and needs to be reined in, while PBMs argue they’re a misunderstood player in the health care system and many policies proposed by Congress — including the elimination of spread pricing — would inadvertently lead to higher costs. FMI, which handles a sprawling set of issues, also has conversations about the Farm Bill reauthorization and credit card competition policy on the docket for its Capitol Hill meetings. Executives will also visit the White House and the FDA to discuss the administration's food traceability rule and talk with officials at the USDA about the Supplemental Nutrition Assistance Program and Special Supplemental Nutrition Program for Women, Infants and Children.   DOWNLOAD THE POLITICO APP: Stay in the know with the POLITICO mobile app, featuring timely political news, insights and analysis from the best journalists in the business. The sleek and navigable design offers a convenient way to access POLITICO's scoops and groundbreaking reporting. Don’t miss out on the app you can rely on for the news you need. DOWNLOAD FOR iOS – DOWNLOAD FOR ANDROID.     Public Health NO MORE VAX CARDS — The Centers for Disease Control and Prevention is no longer printing Covid-19 vaccine cards now that the vaccines are available on the commercial market, a CDC spokesperson confirmed to Pulse. The Associated Press first reported the change. The white cards were once important proof of vaccination and, in some parts of the country, required by bars, restaurants and other public places for entry. Some states offer digital vaccination records to individuals, the AP reports, and all states hold immunization records, though rules on how to obtain them vary.   A message from PhRMA:   Providers HOSPICE PROGRAM SCRUTINIZED — A bipartisan group of lawmakers on the House Ways and Means Committee says a CMS proposal to identify poorly performing hospices lacks key data, echoing concerns by major hospice associations, Chelsea reports. In a letter sent to CMS and the Office of Management and Budget on Wednesday, Reps. Beth Van Duyne (R-Texas), Earl Blumenauer (D-Ore.), Brad Wenstrup (R-Ohio) and Jimmy Panetta (D-Calif.) say CMS’ proposal for how to identify hospices that should be in its Hospice Special Focus Program would “not adequately identify hospices that are truly struggling with performance” because it would be based on survey data that’s often incomplete. Background: The 2020 HOSPICE Act directed CMS to improve hospice oversight following a 2019 HHS Office of Inspector General report that found high rates of hospices with deficiencies. In response, CMS created the hospice program, which would require certain hospices to mend deficiencies in 18 months or be terminated from the Medicare program. In its 2024 proposed home health pay rule, CMS said it would use Medicare hospice data, including surveys and claims data, to identify hospices that should be in the program and rank hospices. Why it matters: The lawmakers who signed the letter, however, said the metrics CMS will use to make decisions, including onsite surveys and the Hospice Care Index, often have missing data — meaning hospices that provide all information requested could risk being placed in the program. They want CMS to return to expert-panel recommendations and eventually offer hospices a preview of their rankings using the metrics the agency decides on. CMS did not respond to requests for comment. STRIKE EFFECTS — The largest health worker strike, which began this week at Kaiser Permanente, could lead to patient delays and brief revenue dips, according to industry analysts, Daniel reports. “Kaiser will respond by keeping critical infrastructure open, but absent plans to backfill striking team members with temporary help, the strike will very likely result in canceled procedures, reduced volumes, and a brief but sharp decline on provider revenues this week,” Kevin Holloran, senior director at credit ratings agency Fitch Ratings, said in a statement. But Kaiser Permanente might be able to avoid those impacts in some instances if it decides to hire contract workers to fill the gaps in care, it said in a statement. The factors at play are the same ones that are among the biggest concerns for health systems across the country: controlling labor costs, sustaining and growing patient volumes and securing a sustainable workforce. How we got here: The workers are primarily asking for more investment in the workforce — especially in ways that will alleviate staffing shortages. Kaiser’s leaders argued they top the industry in compensation and have worked to overcome staff shortages that have affected the sector.   A NEW POLITICO PODCAST: POLITICO Tech is an authoritative insider briefing on the politics and policy of technology. From crypto and the metaverse to cybersecurity and AI, we explore the who, what and how of policy shaping future industries. We’re kicking off with a series exploring darknet marketplaces, the virtual platforms that enable actors from all corners of the online world to traffic illicit goods. As malware and cybercrime attacks become increasingly frequent, regulators and law enforcement agencies work different angles to shut these platforms down, but new, often more unassailable marketplaces pop up. SUBSCRIBE AND START LISTENING TODAY.     WHAT WE'RE READING POLITICO Pro’s Maya Kaufman reports on a rise in tuberculosis cases in New York. Reuters reports that Italy is hiring temporary medics from the Caribbean to address workforce shortages. POLITICO’s Daniel Han reports on New Jersey’s overhaul of troubled veterans homes following an investigation.   A message from PhRMA: Health insurers and PBMs can refuse to share savings that should go to you. Now they’ve got another trick. A new report shows  PBMs found new ways to profit off your prescriptions. They’ve doubled the amount of fees they charge on medicines in the commercial market. They tie these fees to the price of medicines. And experts warn this can lead PBMs to cover medicines with higher prices instead of lower-cost options.      Follow us on Twitter Dan Goldberg @dancgoldberg Chelsea Cirruzzo @chelseacirruzzo Katherine Ellen Foley @katherineefoley Lauren Gardner @Gardner_LM Kelly Hooper @kelhoops Robert King @rking_19 Ben Leonard @_BenLeonard_ David Lim @davidalim Megan Messerly @meganmesserly Alice Miranda Ollstein @aliceollstein Carmen Paun @carmenpaun Daniel Payne @_daniel_payne Evan Peng @thepngfile Ruth Reader @RuthReader Erin Schumaker @erinlschumaker Megan R. Wilson @misswilson   Follow us

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