‘Everyone is focused on Lisa and Susan’: The two most powerful senators in the fight to replace Kennedy

https://www.washingtonpost.com/politics/everyone-is-focused-on-lisa-and-susan-the-two-most-powerful-senators-in-the-fight-to-replace-kennedy/2018/06/28/d7f7f72e-7ae6-11e8-93cc-6d3beccdd7a3_story.html?noredirect=on&utm_term=.191014524354

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The Democrats’ hopes of sinking President Trump’s upcoming nominee for the Supreme Court hinge on a pair of Republican women who have broken with their party over abortion and dismantling the Affordable Care Act.

With the GOP holding a 51-to-49 majority in the Senate, the votes of Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) will almost certainly be needed for Trump’s eventual nominee to be confirmed, making them the most influential senators in the battle to replace Justice Anthony M. Kennedy, who announced Wednesday that he is retiring.

Both will be the target of intense lobbying as Trump is expected to put forward a pick who would shift the court rightward, putting in play issues such as abortion, gay rights and the government’s role in health care.

The two senators are trying to play down their influence as the frenzy over the Supreme Court opening grows and the pressure on them builds.

“It’s been kind of interesting in this firestorm. Afterward, everyone is focused on Lisa and Susan,” Murkowski said in an interview Thursday. “If I were John or Jerry or Bill, I’d say, ‘Wait a minute. How come I’m not being viewed as an important voice in this process?’ ”

But Murkowski and Collins are the rare elected Republicans in Washington who support abortion rights and voted against repealing the Obama-era Affordable Care Act — issues Democrats are using to frame the battle over the Supreme Court nominee.

“A woman’s right to control her body is at stake with this next nominee,” said Sen. Dianne Feinstein (Calif.), who as the top Democrat on the Judiciary Committee will lead her party’s scrutiny of Trump’s nominee. Asked how much Collins and Murkowski should weigh abortion in their decision, Feinstein said, “That’s up to them. But for me, it’s huge. Because I know what life was like before and most young women don’t.”

Murkowski called the future of Roe v. Wade — the 1973 decision that legalized abortion nationwide — a “significant factor,” but she stressed that in no way will that landmark ruling be the sole factor for her.

“And I don’t think it should be the only factor for anybody,” Murkowski said. “It’s not as if those are the only matters that come before the Supreme Court.”

Collins said Thursday that although she wouldn’t ask Trump’s pick how he or she would rule on specific issues, she always presses judicial nominees about their views on legal precedent.

“I do get a sense from them on whether or not they respect precedent,” Collins said. “And from my perspective, Roe v. Wade is an important precedent and it is settled law.”

Republicans, well aware that Democrats will try to pin down Trump’s pick on contentious issues, are already making the case that any nominee should abide by the standard Justice Ruth Bader Ginsburg used during her 1993 hearings: To give “no hints, no forecasts, no previews” on how they might rule.

“I think the only thing that’s going to influence those two very good senators is . . . how they perform in the hearing,” said Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa). “Because Collins and Murkowski would obviously respect the Ginsburg rule.”

The scrutiny the two senators face is far from unfamiliar. Collins is one of a dwindling core of moderate Republicans who have been willing to defect from the party on contentious issues, including abortion and guns. And like Collins, Murkowski has an independent streak — one that helped her win reelection in 2010 through a write-in campaign after she lost in the GOP primary. Both senators also opposed the nomination of Betsy DeVos as education secretary, forcing Vice President Pence to cast the tie-breaking vote to confirm her.

But they have been consistent “yes” votes on Trump’s picks for federal courts.

The two senators have voted on five of the most recent Supreme Court justices, with Collins serving as a reliable “yes” while Murkowski rejected both of President Barack Obama’s nominees: Elena Kagan and Sonia Sotomayor.

Of the 25 names Trump has listed as potential justices, 17 have been confirmed by the Senate for federal judgeships, while two are pending. Murkowski has supported all of the candidates nominated during her time in the Senate while Collins voted against one: Judge William Pryor of the Court of Appeals for the 11th Circuit.

Groups that favor abortion rights have begun flooding Senate offices with phone calls and are widening the universe of targeted Republicans beyond Collins and Murkowski to Sen. Dean Heller (Nev.), the most politically vulnerable Senate Republican on the ballot this fall.

Ilyse Hogue, the president of NARAL Pro-Choice America, said calls from her group’s activists to Senate offices in the 24 hours after Kennedy’s retirement announcement Wednesday were three times the volume of the calls that resulted immediately after Neil M. Gorsuch was nominated in January 2017 to replace the late Antonin Scalia.

“Sens. Murkowski and Collins have already laid down the marker saying that they stand by Roe, they believe in legal access to abortion,” Hogue said. “It’s about upholding their word through this vote, and we’re going to make sure that the public support is there for them in their states and that there will be a lot of frustration and anger if they don’t.”

Public polling indicates a nation split over abortion. The most recent nonpartisan survey to ask whether the procedure should be legal in all or most cases is a Public Religion Research Institute poll in March, which found 54 percent of respondents saying that abortion should be legal in most or all cases vs. 43 percent saying it should be illegal in most or all cases.

Collins and Murkowski — as well as a small cadre of moderate Democratic senators — are likely to receive heavy attention from Trump administration officials as the White House tries to secure support for the president’s yet-to-be-named nominee.

The two Republicans, as well as Grassley and the three Democrats who voted in favor of Gorsuch, met with Trump on Wednesday evening at the White House to discuss the vacancy, White House press secretary Sarah Huckabee Sanders said.

Murkowski already had one suggestion for the administration: Consider people who may not be on the short­list crafted during Trump’s presidential campaign with heavy input from the Federalist Society. She said she wants a chance to weigh in on potential candidates.

“I don’t know how we got so wedded to that list. That was not created by senators here,” she said.

Marc Short, the White House’s director of legislative affairs, noted that he, Pence and White House counsel Donald McGahn had met with Collins, Murkowski and swing Democrats such as Sens. Joe Donnelly (Ind.) and Joe Manchin III (W.Va.) as they considered Gorsuch last year.

“I think that you will see continued White House outreach,” Short said. “Stay tuned on the specifics.”

 

 

‘What The Health?’ Podcast Turns 1. Justice Kennedy Retires. Now What?

https://khn.org/news/podcast-khns-what-the-health-justice-kennedy-retires-now-what/

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The retirement of Supreme Court Justice Anthony Kennedy has triggered a political earthquake in Washington, as Republicans see a chance to cement a conservative majority and Democrats fear a potential overturn of abortion rights and anti-discrimination laws, and even — possibly — challenges to the Affordable Care Act. Kennedy has been the deciding vote in dozens of cases over his long career on the high court, mostly siding with conservatives but crossing ideological lines often enough that liberals see him as the last bulwark against challenges from the right to many policies.

The Supreme Court made other health news this week, ruling that California cannot require anti-abortion “crisis pregnancy centers” to post signs informing women of their right to an abortion and telling them that financial help is available.

And this is a special week for us. It’s our first anniversary. This week’s panelists for KHN’s “What the Health?” are Julie Rovner of Kaiser Health News, Rebecca Adams of CQ Roll Call, Alice Ollstein of Talking Points Memo and Margot Sanger-Katz of The New York Times.

Among the takeaways from this week’s podcast:

  • Kennedy’s retirement will put all eyes on the Senate, where Republicans have a slim majority but have also changed the rules to allow confirmation with only 51 votes instead of the usual 60.
  • The fight over Kennedy’s replacement is likely to galvanize both Republicans and Democrats, but also put in the hot seat the two Republican female senators who have supported abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska.
  • This week’s primaries again put the spotlight on Democratic support of single-payer health proposals, as Alexandria Ocasio-Cortez upset the fourth-ranking Democrat in the House in New York and former NAACP head Ben Jealous won the Democratic nomination for governor in Maryland. But while Democrats have made clear that health is their top issue for the coming campaign, they have so far managed to paper over their intraparty differences on incremental versus wholesale change.
  • The California legislature could vote on a measure as soon as Thursday that would gut efforts by municipalities to put in place soda taxes. If it passes, it will mark a change in momentum away from the success of these measures across the country. The soda industry took a page from the tobacco companies in executing this plan.
  • The controversy surrounding the Trump administration’s immigration policy that separates children from their parents at the border continued to be a flashpoint this week. Health and Human Services Secretary Alex Azar was questioned about it on Capitol Hill during a hearing about drug pricing. Congressional Republicans find themselves in a difficult position. Many don’t want to defend the administration, but there doesn’t seem to be an avenue by which to move forward either.

 

 

Labor Unions Will Be Smaller After Supreme Court Decision, but Maybe Not Weaker

 

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With the Supreme Court striking down laws that require government workers to pay union fees, one thing is clear: Most public-sector unions in more than 20 states with such laws are going to get smaller and poorer in the coming years.

Though it is difficult to predict with precision, experts and union officials say they could lose 10 percent to one-third of their members, or more, in the states affected, as conservative groups seek to persuade workers to drop out.

The court’s decision is the latest evidence that moves to weaken unions are exacting a major toll. Beyond the dropout campaigns aimed at members, conservatives are bringing lawsuits to retroactively recover fees collected by unions from nonmembers.

In May, President Trump signed three executive orders making it easier to fire government workers and reining in the role of unions representing federal workers.

Dropping out of a union is a more attractive proposition now that workers no longer have to pay a so-called agency fee, typically about 80 percent of union dues, if they choose not to belong to a union. (Those doing so generally account for a small fraction of the workers whom public-sector unions represent.)

In the five years after Michigan passed a law ending mandatory union fees in 2012, the number of active members of the Michigan Education Association dropped by about 25 percent, according to government filings, a much faster attrition rate than before. Its annual receipts fell by more than 10 percent, adjusting for inflation.

Still, the more interesting question is whether the unions, whatever the blow to their ranks and finances, will be substantially weaker.

Union leaders insist that they won’t — that the crisis posed by the case, Janus v. American Federation of State, County and Municipal Employees, has brought more cohesion and energy to their ranks.

“No one wanted this case,” said Randi Weingarten, president of the American Federation of Teachers. “But the gestalt around the country has been to turn an existential threat into an opportunity to engage with our members like never before.”

There are reasons to believe that the claim is not merely desperate bravado.

One parallel to the current development is a 2014 Supreme Court ruling known as Harris v. Quinn, which struck down mandatory union fees for home-based workers who serve private individuals but are paid through government programs like Medicaid.

As of late 2013, the Service Employees International Union represented about 60,000 public-sector home care and child-care workers in Illinois, about 40 percent of whom were union members. (The rest paid agency fees.)

Receipts for the service employees union local representing home-based workers in Illinois dropped significantly in the four years after the decision. But an aggressive membership campaign largely offset the loss of members.

It also built and reinforced personal relationships with members, who could be summoned to make demands of politicians in nearly every legislative district.

“Our members go and meet Sam McCann,” said Keith Kelleher, who until last year was president of the local representing these home-based workers, referring to a Republican state senator. “He says yes most of time because he’s got hundreds of members in his district.”

Public home-based workers in Illinois, a state with a notably anti-union Republican governor, continue to notch victories as a result. Last summer, home care workers won a 48-cent-an-hour wage increase from the state, up from an average wage of $13, in a budget that the legislature passed by overriding the governor’s veto. This spring, home child-care workers won more than a 4 percent raise.

In anticipation of the Janus ruling, major public-sector unions have invested heavily in recent years in reaching out to current members — an effort known as internal organizing — and to prospective members to keep their numbers from dropping precipitously and to create a more activist culture. They plan to continue funding these initiatives even if it requires cutting spending elsewhere.

Mary Kay Henry, the international president of the service employees union, said the union used projections derived from its experience after the Harris decision to cut its budget by 30 percent shortly after Mr. Trump was elected. She said the union, which represents about two million workers, roughly half of them in the public sector, was focusing its spending on recruiting members and mobilizing workers to face down employers and elect pro-labor politicians.

“We intend to prioritize the political and organizing work,” she said.

Government filings show that the union has cut contributions to organizations that it had traditionally supported, including the Children’s Defense Fund, People for the American Way, and the National Immigration Law Center. (The union says it provides nonmonetary support to some of these groups.)

At the same time, the union is investing tens of millions of dollars in a door-to-door canvassing initiative for the midterm elections, intended to turn out people who don’t normally vote.

Lee Saunders, president of the American Federation of State, County and Municipal Employees, said that his union’s two highest priorities going forward would be its internal outreach and helping to organize nonunionized workplaces, and that the union would probably “have to make adjustments” to fund these programs. The union spent more than $15 million during the 2016 campaign cycle supporting political candidates, parties and committees.

Mr. Saunders said the union, which represents over 1.2 million workers, had held one-on-one conversations with nearly 900,000 members since 2013. Among the goals of these conversations, he said, is to inoculate members against campaigns by conservative groups to urge them to quit.

“If someone knocks on their door talking about how you can get out of the union — ‘it would be so easy, you don’t have to pay union dues’ — our folks are prepared to tell them to get the hell off their doorstep,” he said.

Alexander Hertel-Fernandez, a political scientist at Columbia University who studies corporate and conservative efforts to weaken labor, said organized interest groups had traditionally had the greatest impact on elections by educating members about candidates and through on-the-ground canvassing rather than large campaign contributions. “It’s doubly so for unions,” he said, adding that the focus “seems like a wise decision, but the effectiveness has to be weighed against what happens to membership and overall revenues.”

The unions enjoy certain advantages. States like California and New Jersey have tried to ease the blow from Janus pre-emptively by passing legislation that, for example, guarantees public-sector unions access to new hires and their personal contact information to help in recruiting.

There is also a substantial wind at their back: a rising energy on the left during the Trump era. Workers in particular appear more willing to take to the streets and state capitols, including tens of thousands of teachers who walked off their jobs this year in conservative states to protest the underfunding of public education.

When the Supreme Court ruled last month that employment contracts could prohibit workers from bringing class-action lawsuits, activists in states like New York, Vermont and Oregon escalated their efforts to pass so-called private attorneys general legislation, allowing workers to bring cases on the state’s behalf that could benefit all affected workers, the same way litigation by an attorney general would.

“We’ve had many, many folks calling: ‘I heard about this legislation you helped design. How do we make this happen?’” said Deborah Axt, co-executive director of Make the Road New York, an advocacy group pushing the measure. Ms. Axt said the group planned to campaign for the legislation’s enactment this summer.

That kind of energy appears to be benefiting unions. A Gallup poll last summer showed labor’s approval at its highest level since 2003, and unions in West Virginia and several other states where teachers walked off the job this year report gains in members.

“We’ve seen a 13 percent jump in membership because of the walkout,” said Ed Allen, president of the Oklahoma City American Federation of Teachers. “We have over 300 people signed up to work in political campaigns. We’ve never seen those kinds of numbers before.”

 

The ‘Biggest Health Care News of the Year’

http://www.thefiscaltimes.com/2018/06/08/Biggest-Health-Care-News-Year

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Trump Administration Says ACA Protections for Preexisting Conditions Are Unconstitutional.

The Department of Justice said Thursday that it will not defend the constitutionality of key provisions of the Affordable Care Act in a lawsuit currently underway in Texas. Here’s what you need to know:

The background: Twenty states, led by Texas, sued the federal government in February as part of an effort to overturn the Affordable Care Act, arguing that, because the GOP tax bill eliminated the penalty for individuals who don’t buy health insurance, the law as a whole was unconstitutional. The Supreme Court’s 2012 ruling that upheld the Affordable Care Act called the individual mandate penalty a tax — and therefore legal. But the lawsuit argues that since the mandate can no longer raise any revenue, the mandate itself is now unconstitutional – and so is the entire ACA.

What they did: The Department of Justice filed a brief Thursday in support of the suit, saying “this Court should hold that the ACA’s individual mandate will be unconstitutional as of January 1, 2019,” and that some other provisions of the law – including those protecting people with pre-existing conditions being denied coverage or charged higher premiums – are inseparable from the mandate and therefore should be declared unconstitutional as well.

Why they did it: Republicans have targeted the Affordable Care Act for elimination ever since it passed, and President Trump continues to promise that it will be overturned. However, the federal support for the states’ lawsuit is unusual, since the Justice Department typically defends existing law. Attorney General Jeff Sessions wrote a letter to House Speaker Paul Ryan explaining that this is a “rare case” that warrants deviating from the Justice Department’s “longstanding tradition of defending the constitutionality of duly enacted statutes.” Tom Miller of the American Enterprise Institute told Politico that the refusal to defend key parts of the ACA shows that the Trump administration is going even further in its battle against the health care law.

What it means: If successful, the states’ lawsuit would allow insurers to charge much higher rates to people with pre-existing conditions, or deny them coverage altogether, effectively ending the ACA’s promise of providing health care for all Americans. If the Justice Department’s analysis is ultimately persuasive, however, other parts of the law, including Medicaid expansion, could stay in place. Some legal experts say the suit is weak, since it turns on the idea that if one part of a law is invalid, the whole thing is invalid, without recognizing that the Congress passed the law and is free to alter it while leaving the rest in place. But the lawsuit has been filed in a conservative court in Texas, and the Trump administration’s refusal to defend key parts of the law has likely boosted the plaintiffs’ chances.

Supporters of the health care law expressed considerable alarm on Friday. Andy Slavitt, who ran the Centers for Medicare and Medicaid Services under President Obama, tweeted that the Justice Department’s decision is the “biggest health care news of the year” and a blow to public health. Slavitt and others criticized the move as an unprecedented decision by the Justice Department to not defend the rule of law. Ultimately, the case may be heading for the Supreme Court.

 

HHS Secretary Alex Azar to Supreme Court: Time to rule on Medicare case that affects $4 billion

http://www.healthcarefinancenews.com/news/hs-secretary-alex-azar-supreme-court-time-rule-medicare-case-affects-4-billion?mkt_tok=eyJpIjoiTXpGak1qTmhNbVUxWVRsaSIsInQiOiJwQlwvU1ZxcTU2bExreng4NXpEZ0Q2WkRYeldUbzlNM3kwWlJFeER5WlwvS3NqQ0lvMFwveHVNRExjdmVkdkRNMTBOb3FlZlwvOUJIMTYzR0tVWlNlcDJWMlRkMVM4TzZCK1I3XC9NSkFkc1U5QjhYaTZXKzhaUnY0M2RKNGNubTR5dk84In0%3D

HHS Secretary Alex Azar Credit: Chris Kleponis-Pool, Getty Images

HHS Secretary Alex Azar

Lower court’s decision about disproportionate share hospital payments undermines the ability HHS has to administer Medicare reimbursement, Azar says.

Health and Human Services Secretary Alex Azar asked the U.S. Supreme Court to review an appeals court case won by numerous hospitals over disproportionate share hospital payments.

Azar said the decision affects between $3 and $4 billion in Medicare funding and therefore, the Supreme Court’s review is warranted.

At issue is whether the Centers for Medicare and Medicaid Services needed to go through a notice and comment rulemaking to get stakeholder feedback before deciding on its own to include Medicare Advantage beneficiaries in its calculations for DSH payments.

Medicare pays hospitals for providing inpatient care and gives an additional payment known as disproportionate share hospital adjustment to hospitals that serve a significantly disproportionate number of low-income patients.

The payment is based on two percentages. The first is a Medicare fraction, which is calculated using the number of patient days for patients who are entitled to benefits under Medicare Part A and for supplemental Social Security income benefits.

The second percent includes patient days attributable to patients who are not entitled to benefits under Medicare Part A.

Medicare Advantage, or Medicare Part C, established in 1997, allows individuals to receive benefits under Parts A and B through enrollment in a private MA plan.

Prior to 2004, CMS did not count a hospital’s Medicare Part C patient days when calculating the Medicare fraction used to determine DSH payments. Starting in 2004, CMS made a decision on its own interpretation of a rule and determined Part C patients were entitled to benefits under Medicare Part A within the meaning of Medicare-fraction provisions.

Hospitals challenged CMS’ interpretation done without notice and comment rulemaking. A district court sided with the government, but in 2017 the U.S. Court of Appeals in the District of Columbia ruled with the hospitals.

The appeals court said HHS needed notice and comment rulemaking before providing Medicare Administrative Contractors the payment calculation that is passed on to hospitals.

The decision undermines its ability to administer the annual Medicare reimbursement process in a workable manner, HHS said.

“The D.C. Circuit’s contrary decision would significantly impair HHS’s ability to administer annual Medicare reimbursements through the MACs that act on its behalf,” the Supreme Court filing said. “It would also impose significant costs on the government. Just with respect to the Medicare-fraction issue in this case, the decision below affects between $3 and $4 billion in Medicare funding.”

Solicitor General Noel Francisco filed the petition in April on behalf of Azar, against health systems Allina Health Services, doing business as United Hospital, Unity Hospital and Abbott Northwestern Hospital; Florida Health Sciences Center dba Tampa General Hospital; Montefiore Medical Center; Mount Sinai Medical Center of Florida dba Mount Sinai Medical Center; New York Hospital Medical Center of Queens; New York Methodist Hospital; and New York Presbyterian Hospital and New York Presbyterian Hospital Weill Cornell Medical Center.

 

A Supreme Court victory for lowering drug prices

http://thehill.com/opinion/judiciary/385326-why-scotus-ruling-in-oil-states-v-greenes-energy-group-is-a-win-for-working

A Supreme Court victory for lowering drug prices

A recent Supreme Court decision on patents — Oil States v. Greene’s Energy Group — marks an understated victory, with far-reaching consequences that will positively impact families and communities across America. This case has deep implications for basic economic fairness, with the judiciary recognizing the importance of keeping critical checks in systems that have become far too imbalanced.

In the national media, this case is being held up as a victory for Silicon Valley and the wealthy tech elites. Perhaps this makes sense: The decision handed down April 24 preserves a process for disputing and overturning unmerited patents, helping curb the glut of patent trolls polluting the industry. But this is not just a victory for the ensconced Palo Alto bubble — working families are silent winners of this week’s Supreme Court decision.

In 2011, Congress created within the U.S Patent Office a body called the Patent Trial and Appeal Board (PTAB). While the patent office examines and grants patents, which are akin to giving a monopoly power for a period of time for an invention, the PTAB serves as an appeal body when such rights are disputed. This week’s SCOTUS decision affirmed that the PTAB can continue its role in ensuring that monopoly rights given through a patent can be reversed.P

Why is this important for ordinary Americans? Abuse of the patent system is directly tied to skyrocketing drug prices.

Americans of all political stripes are united on one thing: Drug prices have spiraled out of control. One in 4 Americans cannot fill their prescriptions because they can’t afford them. Nineteen million Americans are forced to go overseas to buy their drugs because companies don’t price fairly. And pharmaceutical companies get away with their exorbitant pricing by abusing our patent system.

In order to maintain monopolies on life-saving treatments, pharmaceutical companies often file dozens of unmerited patents on their drugs, blocking the generic competition that lowers prices. For example, Celgene has applied for over 100 patents on just one cancer drug, Revlimid. As a result, Celgene will likely make an extra $45 billion while Americans should have been able to access cheaper alternative generic options years ago.

The PTAB can curb that abuse and help restore integrity to our patent system, stopping drug companies from holding a wrongly issued monopoly for years or even decades more. In fact, roughly half of the pharmaceutical patents challenged through the new PTAB reviews are found to be unmerited. This includes patents on expensive drugs: The blockbuster multiple sclerosis drug Copaxone, for example, is one drug the PTAB found to have been wrongly granted patents, thus allowing cheaper versions of the medicine to enter the market.

But more broadly, this Supreme Court decision offers a bit of respite and a rare moment of bipartisan consensus in an increasingly fractured America. The decision strikes at the heart of basic economic unfairness and the ways in which power has become concentrated in the hands of industries — like the pharmaceutical industry which works hard to lobby and advocate and influence to ensure that no checks and balances exist to curb their unfettered power. The Supreme Court upheld a basic mechanism to curb that power.

There is more work to be done. Congress must continue to improve upon the system it built in 2011. We must work to ensure our patent system rewards true invention and allows healthy competition, rather than encouraging frivolous patenting that rewards corporations at the expense of everyday Americans.

But the Oil States decision offers a glimmer of hope for patients and communities who are struggling to get medical treatment. This week’s Supreme Court decision makes it possible to believe that those families may have a shot at affording the medicines they so desperately need.

 

 

AHIP Sees SCOTUS Ruling as a Win for Generic Drugs

http://www.healthleadersmedia.com/health-plans/ahip-sees-scotus-ruling-win-generic-drugs?utm_source=edit&utm_medium=ENL&utm_campaign=HLM-Daily-SilverPop_04262018&spMailingID=13391393&spUserID=MTY3ODg4NTg1MzQ4S0&spJobID=1382296115&spReportId=MTM4MjI5NjExNQS2

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The high court upholds the constitutionality of a patent appeals process that the health insurance industry says will help to negate stall tactics used by brand name drug makers.

A U.S. Supreme Court ruling this week that upholds the constitutionality of a patent review process is being hailed as a win for consumers by the health insurance industry.

America’s Health Insurance Plans says the high court’s 7-2 decision in Oil States v. Greene’s Energy Group upheld the inter partes review process as a way to prevent drug manufacturers from inappropriately prolonging patent monopolies past the time intended by Congress.

“Patients had a lot at stake in the Supreme Court’s determination. Congress designed inter partes review as a quick and cost-effective way to weed out weak patents – including patents for branded prescription drugs,” AHIP said in prepared remarks.

Nicole S. Longo, senior manager of public affairs at Pharmaceutical Research and Manufacturers of America (PhRMA), said the ruling “was narrowly tailored, finding only that IPR is constitutional, not that it is efficient or fair.”

Longo pointed to another Supreme Court ruling this week, SAS Institute v Iancu, that raises concerns about the patent review process.

“SAS Institute v Iancu makes clear there are problems with the IPR process that need to be addressed. This decision points toward reforms to IPR, something stakeholders have raised time and again to the Patent and Trademark Office and members of Congress,” she said.

“Given this narrow decision, we call on Congress and the PTO to take steps to address the Supreme Court’s ruling in SAS Institutes v Iancu and concerns raised by stakeholders, and we stand ready to work with policymakers to make the IPR process more fair for all.”

According to Reuters, Congress created the reviews in 2011 to handle the perceived high number of flimsy patents issued by the patent office in prior years. Since then, the agency’s Patent Trial and Appeal Board has canceled all or part of a patent in about 80% of its final decisions.

The health insurance lobby said that the ruling ensures that millions of people will have faster access to affordable medicine.

“By upholding a faster and less costly patent review process, the Supreme Court has protected an important pathway that allows generic prescription drugs to get to patients faster. Generic drugs increase competition and choice in the market, which helps to lower drug prices,” AHIP said.

Longo said PhRMA has raised significant concerns with the IPR process because it requires drug makers to defend patents in multiple venues under different standards and with procedural rules that are less fair to patent owners than a federal court.

“This creates significant business uncertainty for biopharmaceutical companies that rely on predictable intellectual property protections to justify long-term investments needed to discover new treatments and cures,” Longo said.

Mainers voted to expand Medicaid last year. Could these states be next?

https://www.pbs.org/newshour/politics/mainers-voted-to-expand-medicaid-last-year-could-these-states-be-next

Jennie Pirkl campaign manager for "Yes on 2" announces victory on 2017 Election Day in Portland, Maine. Photo by Shawn Patrick Ouellette/Portland Press Herald via Getty Images

Republicans in Congress may have relented on their attempts to repeal the entire Affordable Care Act, but the battle has shifted to states. Citizens in Idaho, Utah, Missouri and Nebraska have taken Medicaid expansion under the Affordable Care Act into their own hands via ballot initiative campaigns, hoping to force statewide votes to either adopt or reject expansion this coming November.

Medicaid provides health coverage for more than 68 million Americans with low incomes or disabilities through federal and state programs. The far-reaching 2010 Affordable Care Act law, which expanded Medicaid coverage, was lambasted by conservatives as federal overreach. A 2012 Supreme Court ruling said that rather than being forced, states had to opt into Medicaid expansion.

Since then, 32 states have done so. But 18 states have not.

It’s been politically challenging for governors and legislators “who spent years railing against the federal overreach or the assaults on individual liberty in the ACA” to now back Medicaid expansion, said Matt Salo, executive director of the National Association of Medicaid Directors.

But for many states “expanding Medicaid makes a lot of sense” since more people get coverage and the federal government pays nearly the full cost, said Ben Ippolito, a research fellow at the American Enterprise Institute who focuses on health economics.

The campaigns to expand Medicaid via ballot have varied in scope and success. After Maine voters petitioned for and passed a first-of-its-kind expansion last November, campaigns in Idaho and Utah have gained momentum to expand Medicaid coverage. In Missouri, there was a longshot effort to gather 100,000 signatures to put expansion on the state ballot. The head of the campaign, Gary Peterson, couldn’t get the state Democratic party on board, only mustering support from local church groups. He told the PBS NewsHour that he suspended his campaign in February. And in Nebraska, residents launched a petition drive to appeal to voters this November after six consecutive years of failed legislation.

Where is the fight over Medicaid expansion now, and where will it go next? Here’s what we know.

Who exactly does Medicaid affect?

In 24 states, at least 50 percent of births are financed by Medicaid, according to data compiled by the Kaiser Family Foundation. Medicaid also covers costs for about 62 percent of seniors living in nursing homes.

The ACA’s Medicaid expansion raised the income limit on the program, allowing more people to qualify, and also allowed adults without children to enroll.

In a 2016 study, the Urban Institute reported that expanding Medicaid in the 19 states who had not yet done so would make more than 13 million people newly eligible. (Maine didn’t expand until 2017.)

Maine

The issue: In November, Medicaid expansion made the ballot in Maine — the first time this had occurred in any state since Congress passed the ACA in 2010. Fifty-nine percent of Mainers who voted supported expanding Medicaid, rebuking Republican Gov. Paul LePage, who had previously vetoed five expansion bills.

On July 2, people will become eligible under the law.

What’s happening now: LePage, who called expansion “fiscally irresponsible,” had to submit by April 3 a state plan to the federal government on how it would fund the expansion. In December, LePage sent a letter to the Maine Legislature outlining demands for how to fund the expansion, stating, for example, that raising taxes or drawing money from Maine’s Budget Stabilization (or, rainy day) Fund was “not an option.”

When asked whether the administration submitted the state plan by the deadline, LePage spokeswoman Julie Rabinowitz said that “we should not make a down payment without a plan to pay for the ongoing cost” and that LePage “laid out four simple principles to guide how to pay for expansion without jeopardizing the state’s long-term fiscal health,” referring to the December letter.

What’s next: In an interview, Maine’s Democratic Speaker of the House Sara Gideon called LePage’s December correspondence “his imaginary if-I-were-king letter,” and said that it was “not really going to impact what we’re doing here.”

If the administration shirks funding duties, Gideon said the state’s existing Medicaid funds “are enough to start getting people [from the expansion] online” until January.

Idaho and the “Medicaid mobile”

The campaign: In summer 2017, Luke Mayville drove his forest green 1977 Dodge Tioga RV, dubbed the “Medicaid mobile,” across Idaho to campaign for expanded health care access.

His RV had been the rolling trademark of Reclaim Idaho, the organization coordinating the Medicaid expansion ballot initiative. The “Medicaid for Idaho” campaign began as “an awareness raising tour” with the founders touring the Medicaid mobile across Idaho to gauge and build support, Mayville said.

An estimated 78,000 Idahoans fall into the Medicaid coverage gap — people with incomes too high to qualify for Medicaid, but too low to be eligible for the ACA subsidies that help buy coverage.

By the end of the summer, the RV “was covered with signatures.”

What’s happening now: For Medicaid expansion to reach the ballot, the campaign must gather signatures from a total of 56,192 voters (six percent of the state’s 936,529 registered voters in the 2016 general election). They must also meet separate signature thresholds in just more than half of the state’s 35 legislative districts by May 1.

What lawmakers say: Most of the state’s registered voters are Republican and the GOP-led Legislature stalled on expansion in the past. Republican Gov. Butch Otter presented his own plan, but it was pulled from the House floor in February.

What’s next: So far, the campaign has accumulated about 40,000 signatures, leaving about three weeks to gather the remaining 16,000. Mayville said he believes Medicaid is a nonpartisan issue that people on either side of the aisle can sympathize with. “It really cuts across party lines,” he said.

Utah

The campaign: Advocates have been pushing for Medicaid expansion in Utah for years. In 2016, drawn-out battles in the Legislature and governor’s office led to a limited expansion. But advocates like Utah Democratic Sen. Jim Dabakis called it “less than crumbs,” according to The Salt Lake Tribune.

RyLee Curtis, campaign manager of Utah Decides Healthcare, the organization coordinating Utah’s Medicaid expansion ballot initiative, said early efforts she was involved with attracted the attention of The Fairness Project, a nonprofit organization that supports ballot initiatives on issues such as raising the minimum wage and expanding Medicaid. The organization has provided more than 90 percent of Utah Decides’ roughly $900,000 in contributions, much of which has been spent on signature gathering, according to public records.

What’s happening now: Paid canvassers and volunteers have racked up more than 130,000 signatures to date.

What lawmakers say: At the same time, the state Legislature passed a new partial expansion last month that is estimated to cover about 70,000 low-income Utahns in the Medicaid gap, The Salt Lake Tribune reported. For states that undergo full ACA Medicaid expansion, the federal government funds 90 percent of its costs while the state finances the rest. But this partial expansion, which includes a work requirement, must get federal approval for that same 90 percent federal funding.

Matt Salo, executive director of the National Association of Medicaid Directors, said that the Trump administration did not approve a similar request from Arkansas and says it’s unclear whether the administration will approve Utah’s request. Still, it could be “an attractive political compromise.”

What’s next: The campaign for a ballot initiative has exceeded the required 113,143 signatures statewide, but still has to get at least 10 percent of voters from the time of the 2016 election in 26 of the state’s 29 senate districts by April 15. All considered, Curtis said, “we are confident that we can get there.”

Nebraska

The campaign: Proposals have been introduced into the Nebraska Legislature for six consecutive years — all have failed. So one state senator and a group of Nebraskans are trying different approaches.

A petition drive kicked off last month to put Medicaid expansion on the ballot.

Insure the Good Life, the organization leading the charge, and local media outlets have said that expanding Medicaid would provide coverage for about 90,000 additional Nebraskans.

What’s happening now: Amanda Gershon, a sponsor of the petition, told Live Well Nebraska that “the governor and the legislature haven’t solved this problem, so it’s now time for the people to decide.”

Gershon, 35, has been battling chronic health problems since college and around that time lost her health coverage. She said she “went so long without [health] care” that she became gravely ill, but was eventually able to get Medicaid through disability. Even after being approved for disability it took another nine months of paperwork to qualify for Medicaid, Gershon said.

“I really don’t want to see anybody else have to go down that same road to get the health care they need,” Gershon added.

What lawmakers say: Nebraska’s governors have staunchly opposed Medicaid expansion. Republican Gov. Pete Ricketts has a slew of lengthy statements outlining his objections to Medicaid expansion and decrying attempts by the Legislature to expand coverage.

But 32-year-old state Sen. Adam Morfeld, a Democrat, proposed a state constitutional amendment that would also put expansion on the ballot. “Every year that we have tried on Medicaid expansion in this state, the people that are opposed to it have never come up with alternative solutions — the governor included,” Morfeld told the NewsHour.

“[F]or thousands of people in my district who are low-income, working-class folks, it’s [current Nebraska health care] not only making them go bankrupt, they’re starting to die,” Morfeld said. His bill was referred to a committee.

What’s next: Organizers will have until July 5 to collect about 85,000 valid signatures and meet thresholds in 38 of 93 Nebraska counties.

https://www.pbs.org/newshour/health/why-maine-voted-to-expand-medicaid-and-whats-next

 

 

California’s anti-abortion pregnancy centers want the Supreme Court to overturn state notice law

http://www.latimes.com/local/lanow/la-me-ln-pregnancy-court-20180318-story.html

California's anti-abortion pregnancy centers want the Supreme Court to overturn state notice law

At a faith-based pregnancy center here, rooms are crammed with baby supplies, both new and used, for expectant mothers, and a medical office contains equipment to allow pregnant women to view their fetuses.

“Life is not about waiting for the storm to pass,” reads a saying on a wall, “but learning to dance in the rain.”

The Alpha Pregnancy Center, located in a storefront on a busy street in the Mission District, is one of about 200 centers in California and thousands across the country pushing the U.S. Supreme Court to spare them from government regulation.

The California centers are challenging a state law that requires them to inform clients that contraception, prenatal care and abortion may be obtained free or at low cost from the state, along with a state phone number for information about Medi-Cal. The law also requires clinics to disclose if they are not licensed.

The case, which will be argued on Tuesday, pits the free speech rights of the anti-abortion centers against government consumer regulations. The decision is likely to affect abortion laws in other states.

The U.S. 9th Circuit Court of Appeals upheld California’s law, but similar requirements passed by cities and counties elsewhere in the nation have fared poorly in the courts.

Mark L. Rienzi, a religious liberties lawyer who represents pregnancy clinics, frames the debate as a question of whether the government can force anti-abortion activists to give clients phone numbers of abortion providers.

“Can the government make you say something you don’t want to say?” Rienzi asked. “They are pro-lifers. They exist to tell people you shouldn’t get an abortion.”

Rienzi said 11 states and local governments have passed laws to regulate what the pregnancy centers must tell clients — rules he argues amount to discrimination against abortion opponents.

Other analysts view California’s law as mere consumer protection. It was passed in response to reports that the centers were luring pregnant women without clearly identifying themselves as anti-abortion.

“The law is so clearly constitutional,” said UC Berkeley Law School Dean Erwin Chemerinsky. “It is one thing to compel somebody to speak. It is another thing to say you have to post on your wall information that is completely accurate.”

Rienzi, though, said California has plenty of resources to let low-income women know that they may be eligible for government-assisted contraception and abortion.

“I don’t think the government gets to turn private speakers into government billboards,” he said.

At the Alpha Pregnancy Center, nothing on the outside of the storefront indicates the group opposes abortion, but it states on its website that it does not provide abortion referrals.

The government-required notice is posted not on a wall, but is included near the end of three pages of a handout that deals primarily with privacy rights. Clients are required to sign that they have been given the form.

During a recent visit, only the executive director and a receptionist were working. A woman walked out pushing a baby carriage.

Most of the center’s clients are unmarried and about 80% decide to give birth, said the executive director, who declined to give her name. The center tries to help the women financially with donated goods and offers classes in money management, life skills, time management, child behavior and potty training, she said.

Brochures in the center are designed to steer women away from abortion.

One contains information on fetal development. At eight weeks, “the elbows and fingers can be seen,” it reads. There are photographs of fetuses at various stages.

Another pamphlet describes all that could go wrong with an abortion and links the procedure to breast cancer, mental illness and relationship problems, claims that those on the other side of the debate say are either false or misleading.

Elizabeth Nash, a policy analyst for the Guttmacher Institute, a research organization that favors abortions rights, said some pregnancy centers use deception to lure pregnant women who may be seeking abortions, while others are straightforward and even help women obtain government-funded healthcare.

The Supreme Court’s decision to review California’s 2015 law delighted crisis pregnancy centers, but it doesn’t mean they will win the case. Votes of only four of the nine justices are needed to take a case, and the court does not disclose those votes.

Justice Anthony M. Kennedy, often a swing vote, is likely to be the decisive vote in the case, National Institute of Family and Life Advocates v. Becerra, analysts said.

“It’s really hard to know what the Supreme Court is going to do here, ” said Stanford University Law School professor Pamela S. Karlan. “They have two competing impulses.

“On one hand the Supreme Court is extraordinarily receptive to a wide variety of 1st Amendment claims. On the other hand, this is a consumer protection statute, and the Supreme Court has at least so far not shown much interest in telling government they can’t regulate the information” that must be given to medical patients, Karlan said.

Some legal analysts said a ruling against California could hurt the anti-abortion movement by imperiling dozens of state laws that require providers to counsel patients that abortion may harm them.

The Supreme Court’s 1992 decision in Planned Parenthood v. Casey said that “counseling requirements are OK in the sense that the state is allowed to prefer childbirth over abortion,” Nash said.

Of 29 states with abortion counseling requirements, 20 require providers to give patients “misleading or inaccurate information” on such topics as fetal pain, fetal personhood, and links between abortion and breast cancer, future fertility and mental illness, she said.

The National Academy of Sciences released a major study Friday that found abortion was safe and debunked claims it increased the risk of infertility, breast cancer and mental illness.

Many of the state laws that require providers to make such claims have not been challenged because of the high costs of litigation, Nash said. But if the Supreme Court rules that California’s law violates free speech, these laws might become stronger targets, she and other analysts said.

“If the state can’t require that pregnant women be able to read a sign that gives them accurate information,” Chemerinsky said, “it seems an even stronger argument that healthcare professionals cannot be forced to utter falsehoods.”

 

20 states sue over Obamacare mandate — again

https://www.politico.com/story/2018/02/26/20-state-sue-over-obamacare-again-425825

A man is pictured entering health insurance exchange center. | Getty

Twenty states are suing the Trump administration over Obamacare’s individual mandate — again.

Wisconsin, Texas and several other red states said in a lawsuit filed today that since Congress repealed the individual mandate’s tax penalty for not having coverage, that means the mandate itself — and the whole health care law — is invalid.

The GOP tax law “eliminated the tax penalty of the ACA, without eliminating the mandate itself,” the states argue in a complaint filed today in U.S. District Court in the Northern District of Texas. “What remains, then, is the individual mandate, without any accompanying exercise of Congress’s taxing power, which the Supreme Court already held that Congress has no authority to enact.”

The Supreme Court in 2012 upheld Obamacare’s individual mandate in one of the highest-profile court cases in years. The justices did not agree then with the Obama administration’s main argument that the mandate penalty was valid under the Commerce Clause. But the justices did say that the mandate was a constitutional tax. The ruling riled conservatives who felt that Chief Justice John Roberts bent legal reasoning to preserve Obamacare.

Now, the states want to use that same Supreme Court ruling to take down the Affordable Care Act — which has withstood numerous legal challenges but which over the past year has been undermined by executive and regulatory actions the Trump administration has taken.

The states also argue that since the mandate is unconstitutional, the whole law should go. They note that Obamacare did not have a “severability clause” — a provision that says if one part of the law is struck by the courts, the rest would stand — so that once part of it is struck down, the rest in invalid.