The Health 202: The Trump administration is embracing part of Obamacare in order to loosen more health insurance rules

It’s the administration’s latest move to expand alternatives to the marketplace plans offered under Obamacare and it comes on the heels of issuing looser rules around association and short-term health plans. But this new effort might mean embracing a part of the ACA instead of spurning it.

The notice points to a provision in the 2010 health-care law that has gone relatively unnoticed, even as the Trump administration has tried to reshape other parts of the law. Section 1333 describes “compacts” into which two or more states can enter, allowing insurers to sell coverage across state lines. But that part of the law was never put in motion. The Obama administration never issued specific regulations on how it could be carried out, and states have shown little interest anyway.

CMS Administrator Seema Verma framed the invitation for feedback in now-familiar terms, saying that allowing more interstate sales of insurance plans would make them more competitive and affordable. That’s been her frequent refrain in announcing various ways for insurers and states to back away from ACA coverage requirements.

“Americans are in desperate need of more affordable health insurance options,” Verma said in a statement. “We are looking for information and ideas from the public on how to create a more dynamic health insurance market with more insurers participating and competing to meet the needs of the American people just like we see in markets for so many other products and services that enhance our daily lives.”

The idea sounds promising, at first glance. Republicans have long pointed to sales across state lines as a way to address booming costs in the individual insurance markets. Both the House and Senate 2017 health-care bills proposed the idea, and the late Sen. John McCain (R-Ariz.) included the idea in his health-care plan during the 2008 presidential campaign.

President Trump brought it up during his own presidential campaign and included the idea in an executive order a year-and-a-half ago, directing his administration to expand types of insurance that are free from some Obamacare mandates.

“They will be able to buy, they'll be able to cross state lines and they will get great competitive health care and it will cost the United States nothing," Trump said in October 2017. “With Congress the way it is, I decided to take it upon myself.”

But most policy analysts — even conservative ones — say allowing insurers to sell their plans across state lines wouldn’t help bring down prices much and could even hurt plans. The chief reason for that is the geographic nature of health care itself.

Even if a patient living in a high-cost area such as Manhattan could buy a presumably cheaper plan sold in a lower-cost area such as Iowa, they would still have to receive their care from a facility physically nearby. In the end, the plan couldn’t afford to charge such a patient lower premiums because the patient would still be receiving care at Manhattan prices.

“It really will not be attractive from the standpoint of sharply lower premiums or costs,” Joe Antos, a scholar at the conservative American Enterprise Institute, told me.

It’s feasible that states such as Arizona or Nebraska that have struggled to find enough marketplace insurers could benefit from a compact allowing their residents to buy plans sold in another state. But the administration has already sought to fix that problem by expanding the availability of leaner association and short-term plans, so prodding states to form a compact may not move the needle much on consumer choice, Antos said.

Some analysts, including at the National Association of Insurance Commissioners, have also raised the concern that allowing interstate insurance sales could prompt a “race to the bottom,” incentivizing insurers to construct plans in the state with the fewest insurance regulations and then sell those plans around the country. Consumers could end up buying plans that don't comply with regulations where they live and have little ability to appeal decisions if faced with unexpected coverage holes.

“It appeals on a political basis to people who hear this slogan and, without understanding the financial aspects of this, say, ‘Yeah, that,’ ” Antos said.

AHH: Yesterday the Senate confirmed 52-to-47 President Trump’s controversial nominee to the U.S. Court of Appeals for the 6th Circuit, with Democrats slamming Chad Readler for steering a lawsuit challenging the ACA when he served as acting assistant attorney general for the Justice Department’s Civil Division.

In that role, Readler wrote the brief supporting a lawsuit brought by 20 Republican state leaders against the ACA. As our Post colleague Colby Itkowitz writes, Democrats were using Readler as “a cudgel to make the case that Republicans don’t care about protecting sick Americans’ health care.” Sen. Susan Collins (R-Maine) was the only Republican to join Democrats in opposing Readler's nomination.

“My Republican friends, do you want to vote for a judge who says protecting preexisting conditions, which affect 100 million Americans, are unconstitutional?,” Senate Minority Leader Chuck Schumer (D-N.Y.) said on the Senate floor. “Well, that’s what you’re going to do if you vote for Readler.”

In his floor remarks, Sen. Ron Wyden (D-Ore.) said “any hint of credibility Chad Readler might have had as a judicial nominee disappeared the minute he put his name on the Trump administration’s absurd legal argument that protections for preexisting conditions are unconstitutional.”

And there were others, too. Via Sen. Kamala Harris (D-Calif.):

Sen. Elizabeth Warren (D-Mass.):

Sen. Amy Klobuchar (D-Minn.):

OOF: Sen. Martha McSally (R-Ariz.) revealed during a Senate Armed Services subcommittee hearing that she was raped by a superior officer during her service in the Air Force. During the hearing, she told witnesses there to testify about their own assaults while serving in the military that she shares “the disgust of the failures of the military system and many commanders who failed in their responsibilities.”

“Like you, I am also a military sexual assault survivor,” McSally said. “But unlike so many brave survivors, I didn’t report being sexually assaulted. Like so many women and men, I didn’t trust the system at the time.”

She said that “the perpetrators abused their position of power in profound ways. In one case, I was preyed upon and raped by a superior officer.” McSally recalled being “ashamed and confused,” blaming herself for the incident.

“A total of 6,769 sexual assaults were reported in the U.S. military during the last fiscal year, the Pentagon said in a report in April. The figure represents a 10 percent increase from the previous year,” our Post colleague Felicia Sonmez reports. “Those who report their assaults frequently face retaliation. According to the Pentagon, 58 percent of those who reported assaults in 2017 — including two-thirds of women — said they faced some sort of backlash in their unit.”

In a statement, an Air Force spokeswoman said the actions McSally detailed “violate every part of what it means to be an airman.”

“We are appalled and deeply sorry for what Senator McSally experienced and we stand behind her and all victims of sexual assault,” spokeswoman Capt. Carrie Volpe said. “We are steadfast in our commitment to eliminate this reprehensible behavior and breach of trust in our ranks.”

OUCH: A group of more than 300 medical experts sent a letter to the Centers for Disease Control and Prevention saying the landmark guidelines from the agency for opioid use are having a detrimental impact on patients with chronic pain.

Since the CDC guidelines were issued in 2016, prescriptions have dropped markedly, with the number of opioid prescriptions issued annually falling from “a peak of more than 255 million in 2012 to 191 million in 2017,” our Post colleague Lenny Bernstein reports. The letter, written by a group including three ex-White House drug czars, says “the CDC recommendation of a daily numerical threshold for opioid use has led insurers to refuse reimbursement, pharmacies to erect obstacles to obtaining drugs and risks for doctors who want to give out more,” Lenny writes. “They said patients have endured unnecessary pain, turned to illegal drugs and even committed suicide.”

“Taken in combination, these actions have led many health care providers to perceive a significant category of vulnerable patients as institutional and professional liabilities to be contained or eliminated, rather than as people needing care,” the letter to the agency reads.

The role of opioids for treating chronic pain has long been a contested issue. Last week, the FDA called on drug companies to examine whether opioids are effectively treating chronic pain and the National Institutes of Health is studying the issue as part of its Helping to End Addiction Longterm Intiative, Lenny writes.

— Food and Drug Administration Commissioner Scott Gottlieb said the discounts negotiated between drugmakers and pharmacy benefit manager middlemen don’t directly help certain patients who are sick and paying out-of-pocket for pricey medication.  

“The discounts come in the form of back-ended rebates in many cases that don't directly benefit the patient,” the commissioner, who announced his resignation this week, said at an event hosted by the Hill. “The patients who are spending the money and using the drugs and who are sick and out of pocket don't see the rebates directly … The rebates are used to lower the price for everyone within a plan, so they're benefiting patients in the end, but they're not benefiting the patient who's sick and out of pocket.”

The Trump administration has proposed overhauling the current rebate system by banning these discounts and pushing drug companies to pass the discounts directly to the patient.

— James Carroll, director of the White House Office of National Drug Control Policy, will testify this morning before the House Oversight Committee on the administration's progress in responding to the drug crisis. Chairman Elijah Cummings (D-Md.) plans to draw attention to the staff churn at the office over the past few years, characterizing it as "a leadership vacuum and a competence vacuum."

“Under federal law, one of the most basic and important jobs ONDCP has is to issue a national drug control strategy," Cummings plans to say, in remarks shared in advance with Health 202. " However, in all of 2017, the Trump Administration failed to meet this most basic statutory requirement.  In 2018, it was no different.  No strategy was issued. Let that sink in for a moment.  For two years—more than half of President Trump’s term—the White House had no national drug control strategy.  All while tens of thousands of people were dying and the crisis was escalating every single day....There was no sense of urgency.  There was no sense of passion or purpose.”

— An Alabama judge is allowing a man whose girlfriend got an abortion at six weeks of pregnancy to sue the clinic that gave her a pill and its manufacturer on behalf of the aborted fetus, our Post colleagues Ariana Eunjung Cha and Emily Wax Thibodeaux report. The decision centers on the state’s “personhood” law that recognizes the legal rights of the unborn.

“The decree, issued by Madison County Probate Judge Frank Barger, explicitly states ‘Baby Roe’ is a person and allows plaintiff Ryan Magers to name the fetus as a co-plaintiff in the suit for ‘wrongful death,’” our colleagues write. “Magers said in court filings that when his then-girlfriend discovered she was pregnant in early 2017, he ‘repeatedly pleaded’ with her to carry the pregnancy to term and give birth, but she wanted to have an abortion.”

“It has the potential to be used in other states, and it’s part of abortion opponents being emboldened … and conservatives turning over every rock to see how they can ban abortion,” Elizabeth Nash, who studies state legislation at the abortion-rights supporting Guttmacher Institute, told The Post.

Abortion rights groups say the decision sets a dangerous precedent at a time when the idea of granting legal rights to a fetus has gained traction in state legislatures as well as in courts.

Ilyse Hogue, president of NARAL Pro-Choice America:

“Legal experts say the case highlights the high stakes beyond abortion if a new conservative majority on the U.S. Supreme Court were to strike down Roe v. Wade,” our colleagues write. “University of San Diego law professor Dov Fox said the high court has been clear that fetuses are not people and that a woman’s views on abortion trump her partner’s because she is the one who carries and delivers the baby. But if fetuses are recognized as having rights equal to the women carrying them, it would open up a legal and ethical minefield.”

— And here are a few more good reads: 

Feinstein, Grassley call for investigation into minor sexual abuse at HHS facilities (The Hill )

Dem campaign chief: Medicare for All price tag 'a little scary' (The Hill )

‘Jeopardy!’ host Alex Trebek diagnosed with pancreatic cancer (Sonia Rao)

She almost became another maternal mortality statistic. What happened instead has left her with many grateful tears. (Theresa Vargas)

Asbestos in Claire’s makeup highlights FDA’s lack of power to police cosmetics makers (Taylor Telford)

Clinicians embracing esketamine with 'enthusiastic caution' (Stat)

Amazon-Berkshire-JPMorgan health venture has a name: Haven (Axios)

Maryland county gives alert for possible measles, then gives all-clear (Martin Weil)

Today

• The Senate Special Committee on Aging holds a hearing on prescription drug prices.
• The House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law holds a hearing on the effects of consolidation and anticompetitive conduct in health care markets.

'I'm going to fight this': Alex Trebek says he has pancreatic cancer