The Host Julie Rovner KFF Health News @jrovner Read Julie's stories. Julie Rovner is chief Washington correspondent and host of KFF Health News weekly health policy news podcast, What the Health? A noted expert on health policy issues, Julie is the author of the critically praised reference book Health Care Politics and Policy A to Z, now in its third edition.
Some justices suggested the Supreme Court had said its piece on abortion law when it overturned Roe v. Wade in 2022. This term, however, the court has agreed to review another abortion case. At issue is whether a federal law requiring emergency care in hospitals overrides Idahos near-total abortion ban. A decision is expected by summer.
Meanwhile, the Centers for Medicare & Medicaid finalized the first-ever minimum staffing requirements for nursing homes participating in the programs. But the industry argues that there are not enough workers to hire to meet the standards.
This weeks panelists are Julie Rovner of KFF Health News, Joanne Kenen of the Johns Hopkins University’s nursing and public health schools and Politico Magazine, Tami Luhby of CNN, and Alice Miranda Ollstein of Politico. Panelists Joanne Kenen Johns Hopkins University and Politico @JoanneKenen Read Joanne's articles. Tami Luhby CNN @Luhby Read Tami's stories. Alice Miranda Ollstein Politico @AliceOllstein Read Alice's stories.
Among the takeaways from this weeks episode: This weeks Supreme Court hearing on emergency abortion care in Idaho was the first challenge to a states abortion ban since the overturn of the constitutional right to an abortion. Unlike previous abortion cases, this one focused on the everyday impacts of bans on abortion care cases in which pregnant patients experienced medical emergencies. Establishment medical groups and doctors themselves are getting more vocal and active as states set laws on abortion access. In a departure from earlier political moments, some major medical groups are campaigning on state ballot measures. Medicaid officials this week finalized new rules intended to more closely regulate managed-care plans that enroll Medicaid patients. The rules are intended to ensure, among other things, that patients have prompt access to needed primary care doctors and specialists. Also this week, the Federal Trade Commission voted to ban most noncompete clauses in employment contracts. Such language has become common in health care and prevents not just doctors but other health workers from changing jobs often forcing those workers to move or commute to leave a position. Business interests are already suing to block the new rules, claiming they would be too expensive and risk the loss of proprietary information to competitors. The fallout from the cyberattack of Change Healthcare continues, as yet another group is demanding ransom from UnitedHealth Group, Changes owner. UnitedHealth said in a statement this week that the records of a substantial portion of America may be involved in the breach.
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Plus for extra credit the panelists suggest health policy stories they read this week that they think you should read, too:
Julie Rovner: NBC News Women Are Less Likely To Die When Treated by Female Doctors, Study Suggests, by Liz Szabo.
Alice Miranda Ollstein: States Newsrooms Loss of Federal Protection in Idaho Spurs Pregnant Patients To Plan for Emergency Air Transport, by Kelcie Moseley-Morris.
Tami Luhby: The Associated Press Mississippi Lawmakers Haggle Over Possible Medicaid Expansion as Their Legislative Session Nears End, by Emily Wagster Pettus.
Joanne Kenen: States Newsrooms Missouri Prison Agency To Pay $60K for Sunshine Law Violations Over Inmate Death Records, by Rudi Keller.
Also mentioned on this weeks podcast: American Economic Reviews Is There Too Little Antitrust Enforcement in the U.S. Hospital Sector? by Zarek Brot-Goldberg, Zack Cooper, Stuart Craig, and Lev Klarnet. KFF Health News Medical Providers Still Grappling With UnitedHealth Cyberattack: More Devastating Than Covid, by Samantha Liss. CLICK TO OPEN THE TRANSCRIPT Transcript: Abortion Again At the Supreme Court [Editors note: This transcript was generated using both transcription software and a humans light touch. It has been edited for style and clarity.]
Julie Rovner: Hello, and welcome back to What the Health? Im Julie Rovner, chief Washington correspondent for KFF Health News, and Im joined by some of the best and smartest health reporters in Washington. Were taping this week on Thursday, April 25, at 10 a.m. As always, news happens fast and things might have changed by the time you hear this, so here we go.
We are joined today via video conference by Alice Miranda Ollstein of Politico.
Alice Miranda Ollstein: Hello.
Rovner: Tami Luhby of CNN.
Tami Luhby: Hello.
Rovner: And Joanne Kenen of the Johns Hopkins University schools of public health and nursing and Politico Magazine.
Joanne Kenen: Hi, everybody.
Rovner: No interview this week, but wow, tons of news, so we are going to get right to it. We will start at the Supreme Court, which yesterday heard oral arguments in a case out of Idaho over whether the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, trumps Idahos almost complete abortion ban. This is the second abortion case the high court has heard in as many months and the first to actively challenge a states abortion ban since the overturn of Roe v. Wade in 2022. Last months case, for those who have forgotten already, was about the FDA approval of the abortion pill mifepristone. Alice, you and I both listened to these arguments. Did you hear any hints on which way the court might be leaning here?
Ollstein: The usual caveat that you cant always tell by the questions they ask. Sometimes they play devils advocate or its not indicative of how they will rule on the case, but it did seem that at least a couple of the courts conservatives were interested in really taking a tough look at Idahos argument. Obviously, some of the other conservatives were very much in support of Idahos argument that its doctors should not be compelled to perform abortions for patients experiencing a medical emergency. It really struck me from the arguments how much it focused on whats actually going on on the ground.
That was a huge departure from a lot of other Supreme Court arguments and a lot of Supreme Court arguments on abortion where its a lot of hypotheticals and getting into the legal weeds. This was just like they were reading these concrete, reported stories of whats been happening in Idaho and other states because of these abortion bans. People turned away while they were actively miscarrying, people being flown across state lines to receive timely care. I think whether that will make a difference that the justices are sort of being confronted with the concrete ramifications of the Dobbs [v. Jackson Womens Health Organization] decision or not remains to be seen.
Rovner: I thought one of the things that it looked like very much like last months argument is that the women justices were very much about real details and talking about medical conditions, about ectopic pregnancies and premature rupture of membranes and things that none of the men mentioned at all. The men were sort of very legalistic and the women, including Amy Coney Barrett, who voted to overturn Roe v. Wade, were very much all about, as you said, whats going on on the ground and what this distinction means. I mean, where we are is that Idaho has an excption in its abortion ban, but only for the life of the woman. Whereas EMTALA says you have to stabilize someone in an emergency situation and its been interpreted by the federal government to say sometimes that stabilization means terminating a pregnancy, as in the case of premature rupture of membranes or an ectopic pregnancy or a case where the woman is going to hemorrhage and is actively hemorrhaging.
That question of where that line is, between whats an immediate threat to life and whats just a threat to health or a threat to life soon, was the crux of this case. And it really does feel uncomfortably like we have nine Supreme Court justices making, really, medical decisions.
Ollstein: Yeah, it struck me how Amy Coney Barrett seemed to get pretty frustrated with Idahos attorney at a couple points. Idahos attorney was saying kind of, Nothing to see here. Theres no problem. Since we allow lifesaving abortions and thats what is required under EMTALA, theres no conflict. So Amy Coney Barrett was like, Well, why are you here then? Why are you before us? The reason is that theyre trying to get this lower-court injunction lifted even though its not in effect right now. The other point she got kinda testy was when Idaho was saying that their law is clear, doctors know what to do, and Amy Coney Barrett asked, Well, couldnt a prosecutor come in later and disagree and said, Oh, you performed an abortion you said was to save someones life, but I dont think it was necessary to save her life and Im going to charge you criminally? And the Idaho attorney conceded that that could happen.
So I think her vote could potentially be in play, but I dont know if its going to be enough to overcome the courts conservatives who are very skeptical that EMTALA should compel states to do anything.
Rovner: So the medical community has been quite outspoken in this case. The American Medical Association, American College of Obstetricians and Gynecologists and the American College of Emergency Physicians have all filed briefs saying the Idaho ban could require them to violate professional ethics, wrote the immediate president of the AMA, Jack Resnick, in an op-ed. It is reckless for Idaho to tell emergency physicians that they must ignore their moral and ethical standards and stand by while a septic patient begins to lose kidney function or when a hemorrhaging patient faces only a 30% chance of death. But I feel like the medical profession has long since lost control of the abortion issue. I mean, is there any chance here that they might prevail? I have to say this week Ive gotten so many emails from so many doctor groups saying, Oh my goodness, look whats happening. Theyre going to put us in this impossible situation. To which I want my response to be, Where have you been for the last 20 years?
Ollstein: I mean, I think it is notable that these establishment medical groups are becoming more vocal. I mean, some might say better late than never, and I think in some instances they are having an impact at the state level. They have pushed some state legislatures to add or expand exemptions to abortion bans. But a lot of times Republican lawmakers have rejected calls from state medical associations to do that, and so I think filing amicus briefs is a way to have your say, lobbying at the state level is a way to have your say. Some doctors are even running for office specifically on this issue. And also, medical groups are campaigning hard on these state abortion referendums. I reported on doctor groups door-knocking in Ohio, for instance, before that referendum won big.
I think its really interesting to see the medical community get a lot more vocal on something theyve either tried to stay out of or been vocal on the other side on in the past, but well have to see how much impact that actually has.
Rovner: Well, one thing this case highlights is how pregnant women who experience complications that can threaten their health or future fertility, but are not immediately life-threatening, can end up in really terrible circumstances, as we heard in a number of anecdotes at the oral arguments. The Associated Press FOIAd[requested Freedom of Information Act] EMTALA pregnancy complaint records from several states with abortion bans and found some pretty horrific examples, including one woman who miscarried in the emergency room lobby restroom after she was turned away from the registration desk. Another who was turned away and ended up giving birth in a car on the way to another hospital. That baby died. These are not people who go to the emergency room in search of abortions. Theyre women who are trying to maintain pregnancies. Is the concept that people ending up in the most horrific situations are often those who most want children, is that finally getting through here?
Ollstein: What struck me most about that reporting is that the documents they got were just from the first few months after Roe v. Wade was overturned, so we have no idea whats happening now. It could be better, it could be much worse, it could be the same. I think that lack of transparency makes this really hard to report on accurately. And the fact that it took The AP a year to even get those few heavily redacted documents speaks to the challenge here. We want an accurate picture of how these bans are impacting the provision of health care around the country, and its really hard to get.
Rovner: I know the Biden administration has been kind of trying to keep this quiet. I mean, not out there sort of blaring whats happening. Theyve been sort of leaving that to the politics side and this is obviously the policy side. Obviously on the politics side, the Biden administration is getting bolder about using abortion as a campaign issue. The president himself gave a speech in Florida where a six-week ban is set to take effect next week and pinned all the abortion restrictions directly on former President Trump, who he pointed out has taken credit for them. Biden actually said the word abortion twice in that speech. I was listening very closely and went back and counted. I think thats a first. Theyre definitely stepping up the pressure politically, right?
Ollstein: Yes. The Biden campaign is leaning very hard on this. Even in states where its debatable whether they have a chance, like Florida, I think that theres an interest, especially after seeing all of these referendums and ballot measures win big. Its really shown Democrats that this is a very popular issue to run on, that they shouldnt be afraid of it, that they should lean into it. I think you are seeing attempts to do that. Its not always the language that the abortion rights advocacy community wants to hear, but its definitely more than weve heard from the Biden administration in the past.
I think youre also seeing an attempt to sort of take the air out of Trumps Lets leave it to states. I am reasonable and moderate sort-of pitch. By highlighting whats happening on the ground in certain states, its an attempt to say, OK, you want to leave it to states? Then you own all of this. You own every woman being turned away from a hospital while shes miscarrying. You own every instance of a ban going into effect and people having to travel across state lines, et cetera. But whether just blaming Trump and arguing that he would be worse is enough versus saying what Biden would actually do and continue to do, I think thats what weve heard people want to hear more of. Although there has been some action from the Biden administration recently.
Rovner: That was just going to be my next question. The one policy change the Biden administration did do this week was finalized a rule expanding the health records protections under HIPAA to abortion information. Why was this important? It sounds pretty nerdy.
Ollstein: This has been in the works for more than a year. A lot of people have been wondering why its been taking so long and worried that if it took even longer, it would be easier to get rid of it if a new administration takes over. But essentially this is to mak it harder for states to reach across state lines to try to obtain information and use it to prosecute for having an abortion. Its an attempt to better protect that data and so we heard a lot of praise after the announcement came out from abortion rights groups and some medical groups, and I would anticipate some groups on the right would sue. Ive seen some complaints saying this will prevent law enforcement from investigating actual crimes against people, and so I expect to see some legal challenges soon.
Kenen: There are all sorts of efforts to stop both travel for abortion. There are also laws on books already, there have been for a number of years, about helping a minor cross state lines for abortion. Theres the attempts to stop the shipment of abortion pills from a legal state into a state that has a ban. Theres all sorts of things where, whether the intent is to actually prosecute a woman or a pregnant person, versus collecting evidence for some kind of larger crackdown or prosecution, this is potentially a piece … patient records are potentially a piece of that. Weve talked a few weeks ago, maybe a month or two ago by now, about some Texas communities that wanted to say, If you drive on the road in our town on the way to an abortion, were going to arrest you. How they figure out logistically and practically What are you going to do? Stop everybody on the road and give them a pregnancy test?
I mean, I dont know how you enforce that, but just that these ideas are out there and on the books through this privacy shield. We have privacy under HIPAA, all of us, so to interpret it this way, or reinforce it depending on your political point of view, undermine excessively, whatever, but this is sort of pivotal because theres so many ways these records could be used in various kinds of legislative and prosecutorial ways.
Rovner: As you point out, its not theoretical. Weve seen attorneys general Indiana and Kansas and some other states, actually, and Texas say that they want to go after these records, so its not
Kenen: Right and weve seen cases of the child rape victim and the prosecutor, what happened with the doctor, and so its not theoretical. Its not widespread right now, but its not theoretical. Whether the pregnancy was planned and wanted or it was unplanned and ended up being wanted, going through a pregnancy loss is not just medically difficult, depending on when in pregnancy it occurs and under what circumstances. It can be medically quite complicated and its emotionally devastating. So to just get pulled into these political legal fights when youve already been bleeding in the parking lot or whatever, or having lost a pregnancy, its like you forget these are human beings. These are people going through medical crises.
Rovner: Indeed. Well, abortion is far from the only big health news this week. On Monday, the Biden administration finalized more long-awaited rules regarding staffing in nursing homes that participate in Medicare or Medicaid. Tami, whats in these rules and why is the concept that nursing homes should have nurses on duty so controversial?
Luhby: It is very controversial and its also very consequential. So on Monday, as you said, the Biden administration finalized the first-ever minimum staffing rules at nursing homes involved in Medicare and Medicaid, and they say its crucial for patient safety and quality of care. It requires that all nursing homes provide a total of at least 3.48 hours of nursing care per resident per day, including defined periods of care from registered nurses and from nurses aides. Plus, nursing homes must have a registered nurse on-site at all times, which is different than the rules now. Now, CMS [Centers for Medicare & Medicaid Services] is giving the nursing homes some time to staff up. The mandate will be phased in over three years with rural communities having up to five years and theyre also giving temporary exemptions for facilities in areas with workforce shortages that demonstrate a good faith effort to hire. When I spoke to [Department of Health and Human Services] Secretary [Xavier] Becerra about the nursing home industrys vocal concerns that this could cause a lot of nursing homes to close or limit admissions, he said, Well, a business model that is based on understaffing is not a very good business model and is dangerous for patients.
So, its going to be a heavy lift for nursing homes. According to HHS, 75% of them will have to hire staff, including 12,000 registered nurses and 77,000 aides. And also, 22% of them will need to hire registered nurses to meet the around-the-clock mandate. The nursing home operators, not surprisingly, have strongly pushed back on this rule even back when it was first proposed in September, saying that theyre already having staffing problems amid a nationwide shortage of nurses. The American Health Care Association called the mandate an unreasonable standard that only threatens to shut down more nursing homes, displace hundreds of thousands of residents, and restrict seniors access to care.
Rovner: We should point out the American Health Care Association is the lobbying group for nursing homes.
Luhby: Yes. Whats interesting also, though, is that on the other side, you have advocacy groups that are saying that it doesnt go far enough and theyre citing a 2001 CMS study that found that nursing home residents need at least 4.1 hours of daily care. To add to all of this, if its not complicated and controversial enough, Congress is getting involved and is also split over the rules. Some lawmakers, like Sens. Elizabeth Warren and Bob Casey, generally support it, but nearly a hundred House members from both parties wrote to HHS Secretary Becerra expressing their concern that the mandate could lead to nursing home closures. And theres a bipartisan Senate bill and a House Republican bill that would prohibit HHS from finalizing the rule. So we have time before this goes into effect. It goes into effect in phases, and well see if lawmakers move to block the mandate or if the courts do, but its going to be interesting to watch how this plays out.
Rovner: Joanne wanted to add something.
Kenen: Well, first of all, as we say frequently, theres always lawsuits. We have a health care/lawsuit system, so its not over. But I think the other thing is I think families who put a loved one in a nursing home dont understand how little nursing, let alone doctoring, goes on. The name is nursing home and people expect there to be a nurse there, meaning a registered nurse. I think people often think theres a doctor there, where the doctors are not there very much. Thats one reason the lack of medical care on-site, not only could there be emergencies, but I mean even things that could be treated in place if there is a physician. I mean, its just dial 911 and put them in an ambulance and send them to the hospital. And we do have this problem with hospital readmission, which is not just a cost problem and a regulatory problem, its really bad for patients to … the continuity of care is good and lack of continuity and handoffs and change, sending people back-and-forth is not good for them.
Obviously, there are times theres an emergency and you need to send someone to a hospital, but not always. If there was a doctor or nurse, theres some things that you dont have to call 911 for. Because you dont know or dont learn about nursing homes until you have a relative there or until youre a reporter who has to write about them. You dont realize that theyre very custodial and theres not a lot of taken care of in terms of getting assistance in bathing and walking and things like that. Theres less medical care, including nursing care, than people realize until your loved one is there. I mean, when I covered them the first time, I was really shocked. I mean, its 20 years ago the first time I wrote about it, but my assumption of what was there and what is actually there was a big gap.
Rovner: Tami.
Luhby: One thing also, though is … I mean, yes, that is definitely trueabout the medical care, but were also talking about just the care, not only the nursing. But thats why so many aides need to be hired because you also have situations in nursing homes where people arent getting help to go to the bathroom, arent getting showered regularly, arent being watched. Maybe theyre trying to go to the bathroom themselves and theyre falling because they have to go. I mean, unfortunately, Ive had experience with nursing homes with my family and Ive seen this. But also I think its been pretty well reported in a lot of publications and studies and such. But there are a lot of problems in nursing homes, in general, and staffing.
Rovner: Well, just to talk about how long this is going on, former Sen. David Pryor died this week. When he was a House member, he rather famously went undercover at a nursing home to try and spotlight. That was when we first started to hear about some of the conditions in nursing homes. He was instrumental in doing the work that got the original federal nursing home standards passed in 1987, which was the first time I covered this issue, and even then there was a big fight in 1987 about should there be a staffing mandate? Its like, hello, if were going to improve care in nursing homes, maybe we should make sure there are enough people to provide care. Even then the nursing home industry was saying, But we have a shortage. We cant hire enough people to actually do this if you give us a staffing mandate. So literally, this has gone back-and-forth since 1987. And, as Joanne points out, its still in all likelihood not over, but one could sort of think, gee, theyve had two generations now to come up with enough people to work in these nursing homes. Maybe Becerra is right. Maybe theres something wrong with the business model?
Luhby: I was going to say, we know the business model is also moving more towards private equity, which is not necessarily going to be as concerned with the staffing levels. We know that the staffing levels … I think thereve been studies that show that staffing levels are generally lower in investor-owned nursing homes. So theres that.
Kenen: Thereve been a lot of demographic changes. I mean, you live longer, but you dont always live healthier. We have families that are spread out. Not everybodys living in the same town anymore. I mean, they havent for a number of decades now, but your daughter-in-law is 3,000 miles away. She cant come to your house every day. At the same time, we do have a push and its not brand-new, its a number of years now, to do more home- and community-based care, but there are shortages and waiting lists and problems there, too. So there are a lot of people who need institutional care. Whether they wanted to have that or not, thats where they go because either theres not enough community support or they dont have the family to fill in the gaps or theyre too medically complicated or whatever. Given the demographic trends and the degree of chronic disease and disability, this is not going away. Its like Julie said, its way overdue. We need to figure it out. There are workforce shortages to train more CRNAs [certified registered nurse anesthetists] like the trained aides. Its not a five-, six-year program. I mean, this can be done and is done somewhere in community colleges. You can do this. You can improve at all levels. You need more nurse RNs, nurses or advanced practice nurses, but you also need more of everything else. People who go to work in these jobs, by and large, do want to provide quality, compassionate care, and its hard to do if there are not enough of you.
Rovner: But theyre also super hard jobs and super stressful and super physically demanding.
Kenen: Hoisting and
Rovner: Yeah, yeah. And not well-paid.
Kenen: Keeping track of a lot of stuff.
Rovner: Well, in a related move, the Biden administration this week also finalized rules that will attempt to make the quality of Medicaid managed-care plans more transparent. Among other things, the rules establish national wait time limits for certain types of medical care and require states to conduct secret shopper surveys of insurance provider networks to make sure there are enough practitioners available to serve the patient population. The administration says these rules are needed because so many Medicaid patients are now in managed care and regulations just havent kept up. Will these be enough to actually protect these often very vulnerable populations? I mean, obviously these people are not quite as vulnerable as people in nursing homes, but theyre kind of the next level down.
Kenen: Well, I think that weve seen a history of waves of regulation. Then whatever the status quo becomes, it doesnt stay the status quo. Whether, as Tami mentioned, theres more private equity or theres monopolization and consolidation or just new state regulation. I mean, its not static. Do we know how this move is going to play out? No. Do we assume that the bad actors who dont want to comply will find new ways of doing things that in five years well have another set of regulations that well be talking about? I mean, unfortunately, thats the way things work. Some regulatory approaches or legal approaches work and others just sort of morph. Theres a lot of history of innovative great actors and lousy bad actors.
Rovner: I say its been a big week for federal regulation because we also have breaking news from the Federal Trade Commission, of all places. On Tuesday, the commissioners voted to finalize rules banning most noncompete clauses in employment contracts. At an event here at KFF, the FTC chair, Lina Kahn, said a surprisingly large number of comments about that proposed rule came from health care workers. Heres a snippet from that conversation.
Lina Khan: There were a whole bunch of comments that said, I signed this, but its not like I was exercising real choice. It felt coercive. We also heard a lot about the effect of these noncompetes and the way that, especially in rural areas, if you want to switch employers and theres really only one other option locally, if a noncompete is barring you from taking a job with that other hospital, practically to change jobs you have to leave the state. Right? And just how destructive and devastating that is for people and their families, especially if theyre choosing between staying in a job where the employer realizes that this is a captive employee and they dont really have to compete in offering them better opportunities, better wages, and having to instead think about uprooting their family. We also heard from doctors who did not uproot their families, but instead just commuted hours and hours a day driving. People saying, For five years I didnt really see my kids at all awake, ever, because I was always on the road because of this noncompete. So just really vivid stories from people.
Rovner: So even though the vote was less than 48 hours ago, the U.S. Chamber of Commerce has already filed suit to block the rules as have some smaller business groups. Why do businesses think they need to prevent workers from changing jobs near where they live? I mean, you could see it for people whove invented something. You dont want them to walk out the door with proprietary secrets, but baristas at Starbucks and even nurses are not walking out with trade secrets.
Kenen: Well, I mean, this is common in doctors employment contracts, nurses, its everything. I think its partly because there are provider shortages in some places and they want to keep the workforce they have instead of having them be lured across town to a competitor where they could be paid more and then you have to pay even more to hire the next one. So thats part of it. Its economic. A lot of its economic. I mean, theres some fear of patients going with a certain beloved provider, a doctor goes somewhere else. But I think its basically they dont want churn. They dont want to have to keep paying more. Somebody gets a job offer across the street and they dont want to take it. They like where they are, ut theyre going to ask for more money. Its largely economic in a market where theres scarcity of some specialties and certainly nursing. I mean, theres questions about are there are not enough nurses? Or are we just putting them in the wrong places? But speaking generally, theres a nursing shortage and physicians, we dont have enough primary care providers. We certainly dont have enough geriatricians. We dont have enough mental health providers. We dont have enough of a lot of things. This helps the employer, in this case, the health system, usually.
Rovner: I have to say it was only in the last couple of years that I even became aware there were noncompetes in health care. I mean, I knew about them for weathercasters on local stations. Its like if you leave, you have to go to another station in another city. I had absolutely no idea that they were so common, as you point out, for so many economic reasons. Obviously this has also already been challenged in court, so well have to see how that plays out.
Also this week on the antitrust front, we have a paper from three health economists published in the American Economic Review who calculated that if the Federal Trade Commission had been more aggressive about flagging and potentially blocking hospital mergers just between 2010 and 2015, health care prices could have been 5% lower. Researchers blame the FTCs limited budget, but you have to wonder if that budget is limited because business has so much clout in Washington and really doesnt want eager regulators snooping into their potentially anticompetitive practices. I mean, the FTC has been around for 120-some years now. Occasionally it tries to do big things like with these noncompetes, but mostly it doesnt do as much as obviously economists and people who study it think that it could do. I mean, we certainly have problems with lack of competition in health care.
Ollstein: I think we have an unusually aggressive FTC right now, so itll be really interesting to see what they can accomplish in whatever time this administration has remaining to it, which remains to be seen. I have seen some more aggressive action from the agency in the past on things like payday lending and some of these other sort of maybe more fringy sectors of the economy. So to take on health care, which is so central and such a behemoth and, like you said, theres so much political power behind it, as Joanne said, guarantee of lawsuits and coverage from us forever basically.
Kenen: The other point thats worth making, I dont think any of us have said this, it doesnt apply to nonprofit hospitals or health systems, and thats a lot of … market-dominant health care systems that are nonprofits, nominally their tax status is nonprofit. Its a very confusing term to normal people, but these bans on noncompetes do not apply to the nonprofit sector, which is a lot of health care.
Rovner: Yet still its set off quite a conflagration since they passed this on Tuesday. Well, finally this week, speaking of big health care business, we are still seeing ramifications from that Change Healthcare hack back in February. While UnitedHealth Group, which owns Change, says things are approaching normality, thats not the case for providers who still cant submit bills or collect payments except doing it on paper. Meanwhile, in whats going to be some kind of movie or miniseries someday, a second group is now demanding ransom after publishing some of the stolen data. If youve been following this story along with us, youll remember that United reportedly already paid a ransom of $22 million, except that it appears that the group that got that money stiffed the group that actually has control of the pirated data.
Oh, and buried in UnitedHealthcares news update posted on its website, it says protected health information, which could cover a substantial proportion of people of America, is involved in the hack. Can this get any worse?
Kenen: Snakes? I dont think any of us journalists can quite comprehend. I mean, we understand intellectually, but I dont think we understand what its like to be the billing clerk at a major practice right now trying to figure out whats where and how to get paid and what it means for patients and whats next. I mean, this is a tremendous hack, but its not the last.
Rovner: Yeah, and the idea that I think what did they say? 1 out of every 3 health care transactions goes through Change, I certainly wasnt aware of. I think most reporters who are covering this werent aware of. I think certainly none of the public was aware of, that theres that much of the money-changing that goes on from one, as we now know, vulnerable organization is a little bit scary.
Luhby: It shows the power of UnitedHealth[care] in the market. I mean, its the largest insurer and people think of it, OK, I have insurance through it, but they dont realize all of the other tentacles that are attached.
Kenen: It also shows that theres hack after hack after hack after hack. This company knew that they were big and powerful and central, and many of us never heard of them or barely knew what they were. But they knew what they were and despite all the warnings of the need for better and higher protection, cybersecurity protections, these things are going on still. I dont have the technical expertise to know, well, OK, everybodys doing everything theyre supposed to do as a health system, but the hackers are just always a step ahead. Or whether theyre really not doing everything theyre supposed to do and weak links in their own chains. Is it the diabolical geniuses? Or is it people still not taking this seriously enough?
Rovner: I will add that in our discussion with FTC Chair Lina Kahn, she did talk about cybersecurity as something that the FTC is going to be looking at in deciding whether there is unfair competition going on. Also, she has promised to come on the podcast, so hopefully we will get her in the next several weeks.
All right, that is the news for this week. Now its time for our extra-credit segment. Thats when we each recommend a story we read this week we think you should read, too. As always, dont worry if you miss it. We will post the links on the podcast page at kffhealthnews.org and in our show notes on your phone or other mobile device. Tami, you were the first in, why dont you go first this week?
Luhby: Well, my extra credit is an AP story by Emily Wagster Pettus titled Mississippi Lawmakers Haggle Over Possible Medicaid Expansion as Their Legislative Session Nears End. This story brings us up to date on the negotiations between the House and Senate in Mississippi over expanding Medicaid. Just a quick refresher for listeners: Mississippi is one of 10 states that hasnt expanded Medicaid yet, and this is the first time, and its really very consequential that the Republican-led legislature has seriously considered doing so. The problem is the House and Senate versions are very, very different. The House bill is more like a traditional Medicaid expansion, providing coverage for those earning up to 138% of the poverty level, although it would also try to institute a work requirement, and about 200,000 people would gain coverage. But the Senate version would only extend coverage to those earning up to 100% of the poverty level, which the Senate Medicaid committee chair thought would add about 40,000 to the program, and it would also come with a very strict work requirement.
So on Tuesday, lawmakers met to try to hash out a compromise. They did so in public. It was a public meeting recorded, which was very unusual, and apparently there were people waiting hours to get in. It was standing room only. The House offered a plan that would cover people earning up to 100% of the poverty level under Medicaid, while those earning between 100% and 138% would receive subsidies to buy insurance through the ACA exchange. But the Senate did not offer a proposal nor immediately respond to the one in the House. There are more meetings scheduled. I think there was another one yesterday. It remains to be seenwhat will happen, but the clock is ticking. The state legislature only is in session until May 5, and it doesnt give them much time.
Another wrinkle is that its important to note that Gov. Tate Reeves, a Republican, has repeatedly voiced his opposition to Medicaid expansion in recent months and is likely to veto any bill. So if lawmakers do eventually agree on a compromise, they may very well also have to vote on whether to override the veto by the governor. This happened in Kansas in 2017 where the legislature did pass Medicaid expansion, Republican governor vetoed it, and the legislature was not able to override the veto and it never got that far again.
Rovner: So yes, we will keep our eyes on Mississippi. Thank you for the update. Alice, why dont you go next?
Ollstein: I have a piece from States Newsroom related to the Supreme Court arguments on Idahos abortion ban and its impact on pregnant patients. The piece [Loss of Federal Protection in Idaho Spurs Pregnant Patients To Plan for Emergency Air Transport] is about the increase in patients being airlifted out of the state on these Life Flight [Network] emergency transports and the situation and doctors hesitancy to provide abortion care, even when they feel its medically necessary, is leading to this increase in flying patients to Oregon and Washington and Utah and neighboring states. Its getting to the point where some doctors are even recommending people who are pregnant or planning to be pregnant purchase memberships in these flight companies, which normally is only recommended for people who do extreme outdoor sports who may need to be rescued or who ride motorcycles. So the fact that just being pregnant is becoming a category in which you are recommended to have this kind of insurance is pretty wild.
Rovner: Yeah. Welcome to 2024. Joanne.
Kenen: This is a piece from the Missouri Independent, which is also part of the States Newsroom, by Rudi Keller, and the headline is Missouri Prison Agency To Pay $60K for Sunshine Law Violations Over Inmate Death Records. That doesnt sound quite as dramatic as this story really is. Its about a mother whos been trying to find out how her son was left unprotected, and he died by suicide, hanged himself in solitary confinement, when he had a history of mental illness. He was serving time for robbery. He wasnt a murderer. I mean, he was obviously in prison. He had done something wrong, very wrong. He had had a 13-year sentence. But he had a history of mental illness. He had a history of past suicide attempts. He had been taken off some of his drugs, and she has been trying to find out what happened. But its not just her. There are other cases. The number of deaths in Missouri prisons has actually gone up in the last few years, even though the prison population itself has gone down. The headline is sort of the tip of a rather sad iceberg.
Rovner: Prison health care, I think, is something that people are starting to look at more closely, but theres a lot of stories there to be done. Well, my story this week is from my friend and former colleague Liz Szabo, and its called Women Are Less Likely To Die When Treated by Female Doctors, Study Suggests. Now, this was a study of women on Medicare who were hospitalized, so not everybody, and the difference was small, but statistically significant. Those women treated by women doctors were slightly less likely to die in the ensuing 30 days than those treated by male doctors. Its not entirely clear why, but at least part of it is that women tend to take other womens problems more seriously, and women patients may be more likely to open up to other women doctors.
Its another data point in trying to close the gap between women and men and the gap between people of color and white people when it comes to health care. So more studies to come.
OK, that is our show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. Wed appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions to whatthehealth, all one word, @kff.org. Or you can still find me at X, Im @jrovner. Joanne, where do you hang these days?
Kenen: Occasionally on X @JoanneKenen, but not very much, and on threads @joannekenen1.
Rovner: Tami?
Luhby: Best place is cnn.com.
Rovner: There you go. Alice?
Ollstein: @AliceOllstein on X, and @alicemiranda on Bluesky.
Rovner: We will be back in your feed next week. Until then, be healthy. Credits Francis Ying Audio producer Emmarie Huetteman Editor
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