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KFF Health News' 'What the Health?': Waiting for SCOTUS

May 30, 2024
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.

June means it’s time for the Supreme Court to render rulings on the biggest and most controversial cases of the term. This year, the court has two significant abortion-related cases: one involving the abortion pill mifepristone and the other regarding the conflict between a federal emergency care law and Idaho’s near-total abortion ban.

Also awaiting resolution is a case that could dramatically change how the federal government makes health care (and all other types of) policies by potentially limiting agencies’ authority in interpreting the details of laws through regulations. Rules stemming from the Affordable Care Act and other legislation could be affected.

In this special episode of “What the Health?”, Laurie Sobel, an associate director for women’s health policy at KFF, joins host Julie Rovner for a refresher on the cases, and a preview of how the justices might rule on them. 

The cases highlighted in this episode:

Previous “What the Health?” coverage of these cases:

Where to find Supreme Court opinions as they are announced:

Credits Francis Ying Audio producer Rebecca Adams Editor

To hear all our podcasts, click here.

And subscribe to KFF Health News’ “What the Health?” on SpotifyApple PodcastsPocket Casts, or wherever you listen to podcasts.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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Exclusive: Senator Urges Biden Administration To Thwart Fraudulent Obamacare Enrollments

May 21, 2024

Stronger actions are needed immediately to thwart insurance brokers who fraudulently enroll or switch people in Affordable Care Act coverage, Sen. Ron Wyden, chairman of the powerful Senate Finance Committee, said Monday.

“We want the Centers for Medicare & Medicaid Services to hold these brokers criminally responsible for ripping people off this way,” he told KFF Health News.

In a sharply worded letter sent to CMS Administrator Chiquita Brooks-LaSure, the Oregon Democrat expressed “outrage” over the practice, which nets unscrupulous agents commission payments while leaving consumers with a potential host of problems, from losing access to their regular doctors or treatments to higher deductibles and even owing taxes.

Noting that tens of thousands of Americans have been victimized, Wyden called on regulators to step up enforcement and be more proactive in notifying potentially affected consumers. He vowed to introduce legislation that would make participating in such schemes subject to criminal penalties.

“CMS must do more and you must do it now,” he wrote in his letter.

Complaints about such unauthorized enrollment schemes have grown in recent months. KFF Health News has reported that unscrupulous brokers or agents can easily access policyholder information to change their coverage through private commercial platforms integrated with the federal Obamacare marketplace, healthcare.gov, which serves 32 states.

The challenge for federal regulators is to thwart the activity without reducing enrollment — a top priority for President Joe Biden’s administration.

CMS, which oversees the federal website, said it’s working on regulatory and technological fixes and can suspend or terminate problem agents’ access to healthcare.gov.

The agency will respond directly to Wyden, said Jeff Wu, acting director of CMS’ Center for Consumer Information & Insurance Oversight, in a written statement. He further noted that the agency is “consistently evaluating opportunities to identify and resolve issues sooner, including through outreach, technical assistance, and compliance actions.”

Ronnell Nolan, president and CEO of Health Agents for America, whose group has been outspoken about the need for regulators to do more, welcomed Wyden’s involvement and the potential for criminal penalties for perpetrators.

“It’s a crime when a person’s insurance is taken from them when they’re in the middle of cancer treatment or on a transplant list and they’re put in a predicament where they might lose their life because of the fraudulent activity,” she said.

After initially declining to quantify the problem, CMS this month issued a statement saying it had received more than 90,000 complaints in the first quarter of 2024 about unauthorized enrollments and plan switches. While the number of complaints represents a small percentage of the more than 16 million enrollments processed through healthcare.gov for this year’s coverage, it may understate the breadth of the problem, as complaints likely don’t reflect the magnitude of cases.

Although Wyden lauded CMS’ efforts to fix problems already encountered by consumers, he said in his letter that the agency needs to be more proactive about preventing them.

He urged regulators to contact potentially affected consumers instead of waiting to investigate only after a policyholder files a complaint, which sometimes doesn’t occur until weeks or months after a plan is switched.

It can be difficult for victims to recognize the changes. Rogue agents don’t obtain their consent, and many are signed up for plans that have no monthly premiums, so they don’t get a bill. Other consumers unknowingly enroll when they respond to misleading marketing promising gift cards, “government subsidies,” or other financial help.

Rather than wait for a consumer to complain, regulators could reach out directly when they see a policy submitted or changed by a broker or agency that has been found to be fraudulently enrolling others, Wyden wrote.

Wyden also said CMS should use its authority to impose civil penalties, up to $250,000, against “brokers who submit fraudulent enrollments.”

“I am disappointed these penalties have not yet been used to hold bad actors accountable,” he wrote.

Finally, he wants the agency to review private-sector platforms used by agents and brokers to enroll consumers in ACA plans. Those private companies are not used by 18 states and the District of Columbia, which run their own ACA marketplaces. The state-run marketplaces impose additional layers of identity-proofing and other security measures and have reported far fewer problems with unauthorized enrollment.

Dozens of private “enhanced direct enrollment” entities are certified by CMS to integrate with healthcare.gov. Their involvement was expanded during the Trump administration, which also sharply reduced funding for nonprofits to help with outreach and enrollment.

The platforms were designed to be simpler to use than healthcare.gov. But they have drawn criticism from agents, who say the private websites make it too easy for unscrupulous brokers or others to access policyholder information and make changes. Currently, more than half of federal marketplace enrollments are assisted by agents or brokers, and most act legitimately, regulators and others say.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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Clean Needles Save Lives. In Some States, They Might Not Be Legal.

May 17, 2024

Kim Botteicher hardly thinks of herself as a criminal.

On the main floor of a former Catholic church in Bolivar, Pennsylvania, Botteicher runs a flower shop and cafe.

In the former church’s basement, she also operates a nonprofit organization focused on helping people caught up in the drug epidemic get back on their feet.

The nonprofit, FAVOR ~ Western PA, sits in a rural pocket of the Allegheny Mountains east of Pittsburgh. Her organization’s home county of Westmoreland has seen roughly 100 or more drug overdose deaths each year for the past several years, the majority involving fentanyl.

Thousands more residents in the region have been touched by the scourge of addiction, which is where Botteicher comes in.

She helps people find housing, jobs, and health care, and works with families by running support groups and explaining that substance use disorder is a disease, not a moral failing.

But she has also talked publicly about how she has made sterile syringes available to people who use drugs.

“When that person comes in the door,” she said, “if they are covered with abscesses because they have been using needles that are dirty, or they’ve been sharing needles — maybe they’ve got hep C — we see that as, ‘OK, this is our first step.’”

Studies have identified public health benefits associated with syringe exchange services. The Centers for Disease Control and Prevention says these programs reduce HIV and hepatitis C infections, and that new users of the programs are more likely to enter drug treatment and more likely to stop using drugs than nonparticipants.

This harm-reduction strategy is supported by leading health groups, such as the American Medical Association, the World Health Organization, and the International AIDS Society.

But providing clean syringes could put Botteicher in legal danger. Under Pennsylvania law, it’s a misdemeanor to distribute drug paraphernalia. The state’s definition includes hypodermic syringes, needles, and other objects used for injecting banned drugs. Pennsylvania is one of 12 states that do not implicitly or explicitly authorize syringe services programs through statute or regulation, according to a 2023 analysis. A few of those states, but not Pennsylvania, either don’t have a state drug paraphernalia law or don’t include syringes in it.

Those working on the front lines of the opioid epidemic, like Botteicher, say a reexamination of Pennsylvania’s law is long overdue.

There’s an urgency to the issue as well: Billions of dollars have begun flowing into Pennsylvania and other states from legal settlements with companies over their role in the opioid epidemic, and syringe services are among the eligible interventions that could be supported by that money.

The opioid settlements reached between drug companies and distributors and a coalition of state attorneys general included a list of recommendations for spending the money. Expanding syringe services is listed as one of the core strategies.

But in Pennsylvania, where 5,158 people died from a drug overdose in 2022, the state’s drug paraphernalia law stands in the way.

Concerns over Botteicher’s work with syringe services recently led Westmoreland County officials to cancel an allocation of $150,000 in opioid settlement funds they had previously approved for her organization. County Commissioner Douglas Chew defended the decision by saying the county “is very risk averse.”

Botteicher said her organization had planned to use the money to hire additional recovery specialists, not on syringes. Supporters of syringe services point to the cancellation of funding as evidence of the need to change state law, especially given the recommendations of settlement documents.

“It’s just a huge inconsistency,” said Zoe Soslow, who leads overdose prevention work in Pennsylvania for the public health organization Vital Strategies. “It’s causing a lot of confusion.”

Though sterile syringes can be purchased from pharmacies without a prescription, handing out free ones to make drug use safer is generally considered illegal — or at least in a legal gray area — in most of the state. In Pennsylvania’s two largest cities, Philadelphia and Pittsburgh, officials have used local health powers to provide legal protection to people who operate syringe services programs.

Even so, in Philadelphia, Mayor Cherelle Parker, who took office in January, has made it clear she opposes using opioid settlement money, or any city funds, to pay for the distribution of clean needles, The Philadelphia Inquirer has reported. Parker’s position signals a major shift in that city’s approach to the opioid epidemic.

On the other side of the state, opioid settlement funds have had a big effect for Prevention Point Pittsburgh, a harm reduction organization. Allegheny County reported spending or committing $325,000 in settlement money as of the end of last year to support the organization’s work with sterile syringes and other supplies for safer drug use.

“It was absolutely incredible to not have to fundraise every single dollar for the supplies that go out,” said Prevention Point’s executive director, Aaron Arnold. “It takes a lot of energy. It pulls away from actual delivery of services when you’re constantly having to find out, ‘Do we have enough money to even purchase the supplies that we want to distribute?’”

In parts of Pennsylvania that lack these legal protections, people sometimes operate underground syringe programs.

The Pennsylvania law banning drug paraphernalia was never intended to apply to syringe services, according to Scott Burris, director of the Center for Public Health Law Research at Temple University. But there have not been court cases in Pennsylvania to clarify the issue, and the failure of the legislature to act creates a chilling effect, he said.

Carla Sofronski, executive director of the Pennsylvania Harm Reduction Network, said she was not aware of anyone having faced criminal charges for operating syringe services in the state, but she noted the threat hangs over people who do and that they are taking a “great risk.”

In 2016, the CDC flagged three Pennsylvania counties — Cambria, Crawford, and Luzerne — among 220 counties nationwide in an assessment of communities potentially vulnerable to the rapid spread of HIV and to new or continuing high rates of hepatitis C infections among people who inject drugs.

Kate Favata, a resident of Luzerne County, said she started using heroin in her late teens and wouldn’t be alive today if it weren’t for the support and community she found at a syringe services program in Philadelphia.

“It kind of just made me feel like I was in a safe space. And I don’t really know if there was like a come-to-God moment or come-to-Jesus moment,” she said. “I just wanted better.”

Favata is now in long-term recovery and works for a medication-assisted treatment program.

At clinics in Cambria and Somerset Counties, Highlands Health provides free or low-cost medical care. Despite the legal risk, the organization has operated a syringe program for several years, while also testing patients for infectious diseases, distributing overdose reversal medication, and offering recovery options.

Rosalie Danchanko, Highlands Health’s executive director, said she hopes opioid settlement money can eventually support her organization.

“Why shouldn’t that wealth be spread around for all organizations that are working with people affected by the opioid problem?” she asked.

In February, legislation to legalize syringe services in Pennsylvania was approved by a committee and has moved forward. The administration of Gov. Josh Shapiro, a Democrat, supports the legislation. But it faces an uncertain future in the full legislature, in which Democrats have a narrow majority in the House and Republicans control the Senate.

One of the bill’s lead sponsors, state Rep. Jim Struzzi, hasn’t always supported syringe services. But the Republican from western Pennsylvania said that since his brother died from a drug overdose in 2014, he has come to better understand the nature of addiction.

In the committee vote, nearly all of Struzzi’s Republican colleagues opposed the bill. State Rep. Paul Schemel said authorizing the “very instrumentality of abuse” crossed a line for him and “would be enabling an evil.”

After the vote, Struzzi said he wanted to build more bipartisan support. He noted that some of his own skepticism about the programs eased only after he visited Prevention Point Pittsburgh and saw how workers do more than just hand out syringes. These types of programs connect people to resources — overdose reversal medication, wound care, substance use treatment — that can save lives and lead to recovery.

“A lot of these people are … desperate. They’re alone. They’re afraid. And these programs bring them into someone who cares,” Struzzi said. “And that, to me, is a step in the right direction.”

At her nonprofit in western Pennsylvania, Botteicher is hoping lawmakers take action.

“If it’s something that’s going to help someone, then why is it illegal?” she said. “It just doesn’t make any sense to me.”

This story was co-reported by WESA Public Radio and Spotlight PA, an independent, nonpartisan, and nonprofit newsroom producing investigative and public-service journalism that holds power to account and drives positive change in Pennsylvania.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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This story can be republished for free (details).