Daily on Healthcare: Chief Justice John Roberts flipped on Obamacare Medicaid expansion

By | January 26, 2019

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ROBERTS FLIPPED ON OBAMACARE’S MEDICAID EXPANSION: Chief Justice John Roberts initially sided with the four liberal justices to support the part of Obamacare that obligated states to accept the Medicaid expansion or otherwise lose out on the program entirely, according an adapted excerpt from the book “Chief” out Tuesday by CNN’s Joan Biskupic.

The 2012 ruling in National Federation of Independent Business v. Sebelius to make the Medicaid provision in Obamacare optional ultimately landed at 7-2 as Roberts negotiated with Justices Elena Kagan and Stephen Breyer to side with the conservative justices in exchange for his vote to uphold the individual mandate.

The justices thought that states would go along with the Medicaid expansion because the federal government covers the majority of costs. That assumption turned out to be incorrect. More than a dozen states still haven’t expanded, and Republican state legislatures all over the country are advancing laws to scale back expansion.

Supreme Court deliberations are private, and justices don’t respond to rumors that surface or to reporting. It’s difficult to assess the claims in the book because the inner workings of the Supreme Court are closely guarded, and justices do not tend to share what goes on during their conferences where they discuss cases and cast voters. Clerks, too, are notoriously tight-lipped and take a vow of confidentiality.

Jan Crawford had previously reported for CBS that Roberts initially believed the fine on the uninsured should be struck down, but the latest details from Biskupic on Medicaid are new. Roberts did not endorse the argument that the penalty could be upheld as an exercise of Congress’s power to regulate interstate commerce, but he did uphold it as allowed under the power to tax.

In “Chief,” Biskupic reports that Roberts believed the individual mandate was only necessary to uphold Obamacare’s protections on pre-existing illnesses, but that without it the rest of the law could remain intact. His conservative colleagues disagreed and would not budge on their stance that the entire law would otherwise fall apart without it. Roberts unsuccessfully tried to convince Justice Anthony Kennedy, the notorious swing vote, not to support striking down the entire law, before instead turning to Kagan and Breyer.

Roberts “acknowledged being torn between his heart and his head, as he put it, and express some hesitancy to strike down a law intended to solve the nation’s health insurance crisis,” Biskupic writes.

The individual mandate ultimately was upheld 5-4. It was zeroed out this year as part of the tax law signed by President Trump, and is now facing additional legal challenges from Republican state officials who say it is an essential part of the law. The Trump administration believes it is only essential to the protections for people with pre-existing illnesses, as Roberts also believed, according to Biskupic’s reporting.

Good morning and welcome to the Washington Examiner’s Daily on Healthcare! This newsletter is written by senior healthcare reporter Kimberly Leonard (@LeonardKL) and healthcare reporter Cassidy Morrison (@CassMorrison94). You can reach us with tips, calendar items, or suggestions at dailyonhealthcare@washingtonexaminer.com. If someone forwarded you this email and you’d like to receive it regularly, you can subscribe here.

ALL FIVE INVITED PBMS AGREE TO TESTIFY BEFORE SENATE: Executives from CVS Caremark and CVS Health Corporation, OptumRx, Cigna Corporation, Prime Therapeutics LLC, and Humana have all agreed to testify on drug prices before the Senate Finance Committee on April 9.

SOUTHERN, LESS POPULATED AREAS HAVE LEAST ACA COMPETITION: Southern areas of the U.S. with lower populations disproportionately make up the 322 regions with the least insurer competition, according to an analysis out Thursday by the left-leaning Urban Institute and funded by the Robert Wood Johnson Foundation. In the South, only 4 percent of residents have five or more insurers, and they typically face higher premiums.

In general, the Obamacare marketplaces became more competitive for 2019. The share of people living in areas with five or more insurers increased from 18.6 to 20.1 percent, and the number of people living in the least competitive areas, of two or fewer insurers, decreased from 45.1 percent to 37.5 percent of the population.

MARYLAND SENATE APPROVES ENROLLMENT PLAN: The Maryland state Senate on Thursday unanimously approved a plan that would steer residents toward health insurance plans, either through the Obamacare exchange or by auto-enrolling them in Medicaid, if they check a box on their state tax return saying they lack insurance. Residents could alternatively check a box saying they prefer to remain uninsured. The plan passed the Maryland House of delegates last week.

MISSISSIPPI GOVERNOR SIGNS ABORTION BAN: Republican Gov. Phil Bryant has signed a bill into law that bans abortion when a heartbeat can be detected in a pregnancy, or somewhere between six and eight weeks, before many women know they are pregnant. Mississippi is one of 15 states that has introduced such bans. The state is already facing a lawsuit over a 15-week abortion ban it passed last year.

EVERS WITHDRAWS WISCONSIN FROM ACA LAWSUIT: Democratic Gov. Tony Evers is pulling Wisconsin out of a multistate lawsuit challenging the Affordable Care Act after a judge blocked lame-duck laws Republicans passed in December that prohibited him from withdrawing from lawsuits without legislative approval. Circuit Court Judge Richard Niess blocked the GOP-passed laws in a Thursday injunction, ruling that the Legislature had convened illegally when it passed them.

TEXTING-WHILE-DRIVING BANS LEAD TO FEWER ER VISITS: STUDY: In a study conducted of 16 states, those with blanket bans on texting while driving saw a 4 percent decrease in ER visits due to car accidents. The study concludes that states with distracted driving laws in place see an average of 1,632 fewer ER visits due to car accidents.

CUMMINGS, DESAULNIER WRITE TO SACKLER FAMILY ABOUT ITS ROLE IN THE OPIOID EPIDEMIC: Rep. Elijah E. Cummings, D-Md. and Rep. Mark DeSaulnier, D-Calif. asked Purdue Pharma Craig Landau CEO Thursday for information about the Sackler family’s role in marketing OxyContin and other addictive painkillers in 1996. The letter suggests that the family, which owns a controlling share of the company, knew about OxyContin’s addictive qualities immediately after its release. They also reference a report that says the FDA buckled under Big Pharma pressure to label OxyContin suitable for “daily, around-the-clock, long-term… treatment” without scientific evidence.

DRUG PRICING GROUP LASHES OUT AT PHARMA IN NEW AD: Patients For Affordable Drugs Now, which advocates for legislation to lower prescription drug prices, released a digital ad Thursday in support of the Trump administration’s proposal to adopt an International Pricing Index, which would tie the prices of drugs administered in a doctor’s office or hospital to that of other countries. Drug companies have objected to the plan, arguing that it would stifle innovation and patients’ access to healthcare. Patients For Affordable Drugs rebutted the arguments in its latest ad.

NO MATERNAL DEATHS FOUND IN PRISON STUDY: A first-of-its-kind study published in the American Journal of Public Health suggests that maternal deaths for incarcerated women may be low. The study tracked pregnant women in 22 states and federal prisons over the course of two years and reported that none died from pregnancy or childbirth-related causes. Of the 1,396 pregnancies tracked, 46 ended in miscarriages, 11 ended in abortions, four ended in stillbirth and three newborns died.

FINANCE COMMITTEE PROBES DOCTOR DISCLOSURES: Senate Finance Committee leaders wrote to the HHS Office of Inspector General and CMS Thursday for information on potential failures to disclose doctors’ ownership interests in companies that supply medical devices to their own practices. Failure to report financial kickbacks to doctors is a violation of the Physician Payment Sunshine Act.

DEMOCRATS WANT $ 100 MILLION TO HAND OUT FREE DIAPERS: Reps. Barbara Lee of California and Rosa DeLauro of Connecticut on Thursday introduced the End Diaper Need Act to supply low-income families with diapers. The bill is co-sponsored by Reps. Alexandria Ocasio-Cortez and Ilhan Omar. The money would be sent to cities, states, and non-profit groups, which would then help distribute diapers.

BALL PITS ARE PATHOGEN PLAYGROUNDS: In-patient physical therapy clinics often use ball pits as sensory therapy, but research shows that those ball pits are contaminated with infection-causing bacteria. University of North Georgia researchers identified 31 bacterial species and 1 species of yeast after investigating six ball pits in Georgia physical therapy clinics.

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FRIDAY | March 22

House and Senate in recess.

MONDAY | March 25

House and Senate in session.

TUESDAY | March 26

March 26-29. St. Louis. National Association of County and City Health Officials preparedness summit. Details.

10 a.m. 430 Dirksen. Senate Health, Education, Labor, and Pensions Committee hearing on “Implementing the 21st Century Cures Act: Making Electronic Health Information Available to Patients and Providers.” Details.

10 a.m. 210 Cannon. House Budget Committee hearing on the Department of Health and Human Services budget. Details.

11 a.m. 1225 I St. NW. Bipartisan Policy Center event on “Tracking Federal Funding to Combat the Opioid Crisis.” Details.

WEDNESDAY | March 27

March 27-28. Washington Hilton. Health Datapalooza. Agenda.

THURSDAY | March 28

8 a.m. The Willard. Politico event on “Opioid Misuse, Hepatitis C and HIV: An Emerging Crisis.” Details.