Politics. One of the tender mercies of our life is not covering energy. It puts the geo in geo-politics and can require fluency in more than one language. It would have been nice, then, if the Supreme Court decision on West Virginia v. Environmental Protection Agency was just about energy policy.
Instead, it has implications large and small for health care.
Health care is hard. If you are working on Capitol Hill in Washington, you are not necessarily looking to break a sweat. Republicans have always found it uninteresting and too complex for a 20-something staffer that worked on the campaign back in the district. They have tended to rely on the tax code, something they know a lot about, to form health care policy.
Democrats like health care policy a lot more. It represents the aspirations of the New Deal and the Great Society with an end game of universal health insurance coverage. Policies have largely relied on mandates and other regulatory requirements and a LOT of money.
It is the LOT of money part that has created the friction between the two parties, especially since the enactment of a PAYGO requirement in 2010. Republicans, frequently joined by conservative Democrats, have generally refused to support legislation without budgetary offsets.
Finding those budgetary offsets is difficult. It seems every provision of Medicare, Medicaid and ERISA law have a non-governmental organization to lobby it. No matter what the proposed change in law, mass casualties are certain to result.
That impasse is cured by one thing, the bureaucracy. Creativity is not what normally comes to mind when one thinks of a government lawyer but the complexity and vagueness of federal health law – much of it badly in need of a shave and a haircut 50 years on – can make it fun and easy. The sprawling legislative mess that is the Affordable Care Act only adds to the excitement.
The fun began with President Obama who, after spending nearly all his political capital on the ACA just two years into his tenure, declared he would use his pen and his phone to enact policy. He was followed by the Trump administration whose creative lawyering was a thing to behold.
The CDC regulates housing? Really!?
Biden administration’s efforts to fill the gaps in the Affordable Care Act, like the “family glitch,” which until recently the IRS said was impossible, is similarly brazen.
Power is, after all, nonpartisan.
West Virginia v. EPA has put an end to much of those extreme examples and Washington’s creative JDs will need to find another outlet for their master skills.
Policy. If the bureaucracy’s wings are clipped by the Supreme Court and Congress remains unable to agree on much, federal health care policymaking loses its allure. Most people go into public service because they like to solve problems. A few do it for the power it confers. Without new laws or deference to the administration, health care policy work offers neither.
The energy leading up to and after passage of the ACA has dissipated. There is nothing in its place around which to rally the wonks, NGOs, career bureaucrats and lobbyists. Federal health policy has begun its long slog, accelerated by the shredding of the social contract during COVID, toward anachronism.
As it does, providers are getting less and less interested in patients whose care is defined by federal and in many cases, state policies. Physicians were the first to do so. Many primary care doctors limit the number of Medicaid patients they treat because of low reimbursement that is not offset by the supplemental payments hospitals and nursing homes enjoy.
With limited staff, hospitals, dialysis clinics, Inpatient Rehabilitation Facilities and home health agencies must admit and treat patients to the extent they are economically viable. THC and EHC have said as much. DVA dare not but the neatness of their cost and revenue per treatment lines suggest they are already doing so.
Providers can rationalize limiting access in response to certain pandemic policies that caused a lot of labor disruption. Medicare’s ossified payment structure prohibits a rapid response to price shocks. Enforcement is unlikely as labor costs exceed reimbursement. (“Your honor, we had insufficient staffing on the medical floors that weekend.”)
If enforcement does occur, withdrawing from the Medicare program can turn into a viable alternative. The Mayo Clinic announced in 2017 that it would make the privately insured a priority for treatment.
If enforcement begins to scare of providers, enforcement probably won’t happen.
Power. Among these shifting power dynamics of health care, the pharmaceutical lobby will be one to watch. As the vaccine controversies have begun to emerge in people who do not wear tin-foil hats, the power of the pharmaceutical industry becomes uncomfortably apparent.
Medicaid agencies have frequently sought to close their formularies, something states assert will save money and lives. Except for Aduhelm, CMS has resisted all these efforts. If the FDA clears a drug, Medicaid covers it. The accelerated pathway has been especially difficult as patient outcomes can be unknown.
Last week, CMS announced it was targeting Tennessee’s closed formulary in a revamp request. It also delayed a request from Oregon to exclude drugs approved under the accelerated pathway.
Insiders credit the pharma lobby with this interference.
States are newly (re?) empowered by the Supreme Court so a challenge to Medicaid drug policy does not seem unlikely.
And it will be very illuminating.
Have a great long weekend and Happy Fourth of July.
Emily Evans
Managing Director – Health Policy
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