Weekend update

David Ermer

I am an attorney who practices law in Washington DC. My practice has involved the Federal Employees Health Benefits Program since 1983.

Weekend update

David Ermer–Congress, COVID-19, U.S. Healthcare–

The House and the Senate will be in session on Capitol Hill for the next two weeks. The House will begin a district work break at the end of July while the Senate will continue in session until August 5. Congress will be out of session for the remainder of August for the political conventions. It will be interesting to see whether another COVID-19 relief bill emerges over the next three week legislative period.

Speaking of COVID-19, Govexec.com estimates that 19,000 federal employees and 20,000 members of the U.S. military have tested positive for COVID-19. That’s roughly 1% of the total number of federal employees and military members and 1% of the total number of COVID-19 cases in the U.S. That’s encouraging given the fact that many federal employees, e.g., the Postal Service, law enforcement, as well as military members have not been hunkered down during the emergency. Thanks to all of you for your service.

The FEHBlog subscribes to the Washington Post’s Optimist email and today’s lead article caught his attention — “Need some good news about covid-19? Here are six reasons for optimism.” The writer who directs the Health Buildings Program at Harvard’s public health schools discusses six trends that the FEHBlog has been following to one extent of another. It’s helpful to read them summarized here.

The FEHBlog looks forward to virtually attending the National Committee for Quality Assurance’s Digital Quality Summit this coming Wednesday and Thursday. The FEHBlog will share a few tidbits with his readership.

In last Friday’s post, the FEHBlog mentioned the key roles that hospitals and other healthcare providers including “pharma” and the prescription benefit managers plus the government play in responding to the COVID-19 emergency. It occurred to the FEHBlog over the weekend that his readers may wonder where health plans fit into this mix.

Health plans need to keep on keeping on, as they have done, by paying claims and helping members navigate the healthcare system, among other things. That’s an important responsibility. In my experience, FEHB plans have not missed a beat during the emergency, and the FEHBlog is proud to serve many of them.

Friday Stats and More

David Ermer–COVID-19, Federal employment benefits, OPM, U.S. Healthcare–

For the third week in a row, new COVID-19 cases have topped 300,000 (nearly 1 million in total) while the number of new deaths remains relatively low and stable (12,000 in sum over the past three weeks) according to the CDC’s cases in the U.S. website which the FEHBlog tracks.

Axios echos the FEHBlog’s sentiment that the medical profession to its credit has learned how to treat COVID-19. That is what you would expect in 2020. Hopefully the government is doing a good job providing healthcare resources to hot spot areas in order to facilitate treatment. In that regard, HHS announced today that “it will begin distributing $10 billion in a second round of high impact COVID-19 area funding to hospitals starting next week.”

In our FEHBP world —

  • Federal News Network reports that OPM has issued new proposed rules to address enrollment problems that arose during the long government shutdown in the winter of 2018-19. Hopefully we won’t encounter another one of those unfortunate events again, but it is better to be safe than sorry. Several of the new flexibilities are already law thanks to a law that Congress passed in 2019.
  • OPM also released today a revised SF 2809 FEHB enrollment form. The form is a handy reference for FEHB enrollment rules. It’s not used as often as it was pre-internet and smart phones.

Finally, the Trump Administration enjoyed two victories in the U.S. Court of Appeals for the D.C. Circuit today. As Healthcare Dive reports

  • The Court of Appeals affirmed a lower court decision upholding the Administration’s short term duration health plan rule. The FEHBlog sees no harm in giving consumers greater choice of health care coverage after Congress zeroed out the individual mandate.
  • The Court of Appeals reversed a lower court decision and thereby upheld the Administration’s Medicare “site neutrality” rule that “reduced some payments to off-campus hospital outpatient departments to make them consistent with other outpatient payments.” The court reasoned that

“Reducing the payment rate for a particular OPPS service readily qualifies, in common parlance, as a ‘method for controlling unnecessary increases in the volume’ of that service,” according to the opinion. “The lower the reimbursement rate for a service, the less the incentive to provide it, all else being equal. Reducing the reimbursement rate thus is naturally suited to addressing unnecessary increases in the overall volume of a service provided by hospitals.”

Makes perfect sense to the FEHBlog.

Thursday Miscellany

David Ermer–CDC, COVID-19 testing, COVID-19 vaccine–

On the COVID-19 front —

  • The Wall Street Journal reports that in the course of reporting its second quarter 2020 financial results, Johnson & Johnson (“J&J”) announced that “it plans to begin the first human studies of its experimental coronavirus vaccine next week, as it races to make the shot available starting early next year. * * * J&J could get an answer about whether the vaccine safely prevents Covid-19 by the end of the year, Dr. Stoffels said. If successful, the company expects the shot to become available in early 2021, and J&J plans to manufacture up to one billion doses by the end of next year.
  • Fierce Healthcare provides an update on the state of COVID-19 testing in our country. “Admiral Brett Giroir, M.D., Assistant Secretary for Health at the U.S. Department of Health and Human Services (HHS) said 45 million COVID-19 tests had been performed in the U.S. so far, or about 700,000 a day. “We see early indicators that in the hot areas, the red zones, we’re seeing the positivity rate start to go down or plateau. That’s an early sign that we’re getting control of this outbreak,” he said. “This is no victory lap, but it does show that our efforts are starting to make an impact,” he said. “In Arizona, the positivity rate has dropped dramatically.” Giroir said basic, simple measures will help to curb the pandemic, namely, closing bars and indoor dining at restaurants and individuals adhering to guidance to wear masks in public, practice social distancing and avoid large groups.” Good message.

Regrettably, the Wall Street Journal also reports that

U.S. fatal drug overdoses rose last year, new federal data show, reversing a one-year-decline and indicating that another public-health crisis was worsening as the coronavirus pandemic was poised to begin.

Provisional data from the Centers for Disease Control and Prevention include 70,980 fatal overdoses in 2019 with about 1,000 more deaths likely to be added, marking a 4.8% increase from the year before. The data indicate the U.S. last year likely eclipsed the prior record high of 70,237 overdose deaths set in 2017, said Robert Anderson, chief of the mortality-statistics branch at the CDC’s National Center for Health Statistics.

[P]roblems with synthetic drugs like methamphetamines and bootleg versions of the opioid fentanyl have challenged the nation’s ability to build on improvements. Overdose deaths in drug categories including meth and fentanyl continued to rise last year, the CDC data show, while deaths from cocaine, another stimulant, also rose.

Jim Hall, an epidemiologist in Florida who has studied the drug crisis, said the rising availability of the overdose-reversal drug naloxone helped tamp down the number of fatal overdoses in 2018. But the toxicity of fentanyl and the mixture among many users of both fentanyl and stimulants remain potentially deadly problems, he added.

For more details here’s a link to the CDC report.

The CDC also released a public health report today about the use of prescription opioids by pregnant women.

Among respondents reporting opioid use during pregnancy, most indicated receiving prescription opioids from a health care provider and using for pain reasons; however, answers from one in five women indicated misuse. Improved screening for opioid misuse and treatment of opioid use disorder in pregnant patients might prevent adverse outcomes. Implementation of public health strategies (e.g., improving state prescription drug monitoring program use and enhancing provider training) can support delivery of evidence-based care for pregnant women.

Midweek update

David Ermer–COVID-19 vaccine, Telehealth, U.S. Healthcare–

There have been many ups and downs during the COVID-19 emergency. The one effort consistently making sure but steady progress is the COVID-19 vaccine development process. In today’s news from Fierce Healthcare

  • “AstraZeneca and the University of Oxford are set to share “positive news” on their COVID-19 vaccine soon, according to a leading U.K. journalist. The update, which could come as soon as tomorrow, may shed light on how the front-runner vaccine fared in early clinical trials.”
  • “Moderna and its partners in the federal government are just now gearing up for a late-stage COVID-19 vaccine trial set to launch later this month, but at the same time, the mRNA biotech is prepping a supply of doses for quick shipment if the shot gets an FDA go-ahead.”

In this regard, the FEHBlog has noted his addiction to the Econtalk podcast. This week the host Stanford economics professor Russ Roberts dropped this pearl of wisdom in the course of his conversation with a gaming company CEO:

It’s taken me a long time, Josh, but I’ve finally figured out that sometimes something that people are really excited about doesn’t happen. Driverless cars. Four years ago I thought , ‘By 2020 they’re going to be here for sure. AI [Artificial Intelligence], ‘Yeah, soon they won’t even–,’ you fill in the blank. A lot of these things turn out to be harder than they were thought to be. And of course, part of the reason for that is that the people who’ve spent the money to take the chances on it have an incentive to overstate the hype. It’s just part of the natural human experience.

And of course there are also the lawyers telling the entrepreneurs to tone it down. Hopefully the COVID-19 vaccine for which we are all excited will be a near term success. Knock on wood.

In telemedicine news —

  • The Health Affairs Blog features a detailed CMS Administrator Seema Verma article on the topic. She concludes “During these unprecedented times, telemedicine has proven to be a lifeline for health care providers and patients. The rapid adoption of telemedicine among providers and patients has shown that telehealth is here to stay. CMS remains committed to ensuring that the government supports innovation in telehealth that leverages modern technology to enhance patient experience, providing more accessible care.”
  • Health Payer Intelligence reports that

As payers lean more heavily on remote care, consumers stressed the need for greater convenience in care delivery and prefer to turn to telehealth and digital solutions, in part, as the answer, according to a recent CVS Health study. CVS Health fielded the survey in March 2020 and garnered 1,000 respondents. It drew particularly from twelve major cities and targeted African American and Hispanic participants. An additional survey covered 400 providers.

What a happy coincidence!

Finally, Healthcare Dive informs us about UnitedHealth Groups’s second quarter 2020 earnings report.

Payer arm UnitedHealthcare, the largest commercial health insurer in the U.S., brought in $49.1 million in revenue, up just 1% year over year. But its medical loss ratio, a marker of how much an insurer spends on patient care, plummeted to 70.2% in the quarter ended June 30, compared to 83.1% same time last year, due to temporary deferral of care amid the pandemic.

The question of course is when will the bounce back occur?

Tuesday Tidbits

David Ermer–ACA, COVID-19 vaccine, SCOTUS–

Good news! STAT News reports that “Moderna’s Covid-19 vaccine led patients to produce antibodies that can neutralize the novel coronavirus that causes the disease, though it caused minor side effects in many patients, according to the first published data from an early-stage trial of the experimental shot.” The FEHBlog will take it. What’s more, “The [Moderna] data roughly mirror the results from a similar vaccine being produced by Pfizer and BioNTech, which were released July 1.” Fingers remain crossed.

Healthcare Dive informs us about a FairHealth analysis which concludes that 

The median charge for hospitalized COVID-19 patients aged 23-30 was about $35,000, while those aged 51-60 had median charges of about $46,000.
The most common other illness found in those patients is chronic kidney disease or kidney failure. Nationally, those patients accounted for 13% of all hospitalized COVID-19 patients during the study period from January to May. The second most common comorbidity in all but one region is Type 2 diabetes, according to the study that looked at private healthcare claims. The exception, the South, had hypertension in that rank.
The report also found the most common venue for an initial COVID-19 diagnosis nationally was a traditional doctor's office. About 33% of COVID-19 patients sought help from an office, while 23% went to an inpatient facility, such as an emergency room. In the Northeast, about 7% of COVID-19 diagnoses in that region came via telehealth appointments, versus 6.2% from ER visits.

The Health Affairs Blog provides details on how the COVID-19 virus impacts people differently when viewed from a racial or ethnic perspective. These disparities deserve the attention of the healthcare industry.

We used data from the Medical Expenditure Panel Survey to explore potential explanations for racial-ethnic disparities in coronavirus disease 2019 (COVID-19) hospitalizations and mortality. Black adults in every age group were more likely than whites to have health risks associated with severe COVID-19 illness. However, whites were older on average than blacks. Thus, when all factors were considered, whites tended to be at higher overall risk compared to blacks, with Asians and Hispanics having much lower overall levels of risk compared to either whites or blacks. We explored additional explanations for COVID-19 disparities, namely differences in job characteristics and how they interact with household composition. Blacks at high risk of severe illness were 1.6 times as likely as whites to live in households containing health-sector workers. Among Hispanic adults at high risk of severe illness, 64.5 percent lived in households with at least one worker who was unable to work at home, versus 56.5 percent among blacks and only 46.6 percent among whites.

FYI, HealthIT.gov reports that at the request of Congress the federal government “is investigating strategies to improve patient identity and matching. Stakeholder input and insight into existing challenges and promising innovations in patient identity and matching will inform [Office of the National Coordinator of Health Information’s] ONC’s report to Congress on technical and operational methods that improve patient identity and matching. We invite all stakeholders to submit comments to identity.onc@hhs.gov by September 18, 2020.”

Supreme Court journalist Amy Howe reports that the U.S. Supreme Court has announced its oral argument calendar for October 2020. The calendar does not include the ACA constitutionality case, Texas v. California. The FEHBlog is willing to bet the ranch that the Supreme Court will uphold the ACA’s constitutionality (although it may remove the individual mandate from the statute which is what Congress intended when it zeroed out the individual mandate penalty).

In other litigation news, the FEHBlog discovered today that on August 3, 2020, at 2 pm, the U.S. District Court for the District of Columbia will hear oral argument on the Whitman-Walker Clinic’s motion to preliminarily enjoin enforcement of the recent HHS revised ACA Section 1557 rule. Section 1557 is the ACA’s individual non-discrimination provision. The FEHBlog is keeping an eye on this case.

Regrettably , Federal News Network reports that OPM has decided not to award any Presidential Rank award this year due to the disruptions created by the COVID0-19 emergency. The FEHBlog was honored ten years ago to participate in judging these awards. The FEHBlog was and remains very impressed by the work of the federal employees wh0 are nominated for these awards. Hopefully the awards which also were suspended for 2013 will return next year.

Monday roundup

David Ermer–Congress, COVID-19, HIPAA Privacy and Security Rules, OPM, Rx coverage–

The Wall Street Journal seeks to answer a question that the FEHBlog has been pondering — “Scientists Hoped Summer Temperatures Would Tamp Down Covid-19 Cases. What Happened?” “There are three likely reasons, public-health and infectious-disease experts said. They have to do with the current [relatively low] levels of immunity in the population, how the virus is transmitted [by respiratory droplets] and how people behave [/fail to follow public health guidance].” Oh well.

The Hill reports that “The two main health insurance lobbying groups, America’s Health Insurance Plans (AHIP) and the Blue Cross Blue Shield Association, wrote a letter to congressional leaders on Friday making a [wide] range of requests for the next coronavirus response package, expected later this month.” Check it out.

HHS’s Substance Abuse and Mental Health Services Administration today finalized a revised 42 CFR Part 2 rule intended to better facilitate coordination of patient care. Part 2, which dates back to 1975, applies to substance use disorder patient records held by certain federally assisted health care providers. Here is a link to the FAQs on the final rule. The next time that SAMHSA revises this rule it will do so to align the rule with the generally applicable HIPAA Privacy Rule in accordance with the CARES Act. The statutory deadline for this action is March 27, 2021.

Fedsmith offers an article discussing whether federal annuitants with FEHB coverage also should elect to purchase Medicare Part prescription drug coverage. Here is OPM’s guidance:

Part D: There is a monthly premium for Part D coverage. Most Federal employees do not need to enroll in the Medicare drug program, since all Federal Employees Health Benefits Program plans will have prescription drug benefits that are at least equal to the standard Medicare prescription drug coverage. Still, you may want to be aware of the benefits Medicare is offering, so you can help others make informed decisions. If you have limited savings and a low income, you may be eligible for Medicare’s Low-Income Benefits. For people with limited income and resources, extra help in paying for a Medicare prescription drug plan is available. Information regarding this program is available through the Social Security Administration (SSA). For more information about this extra help, visit SSA online at www.ssa.gov, or call them at 1-800-772-1213 (TTY 1-800-325-0778).

Weekend update

David Ermer–Congress–

The House of Representatives will continue to engage in Committee business this week, while the Senate is on a State work break. Both bodies begin to undertake legislative business including floor votes on July 17.

Federal News Network reports that “Days after House appropriators essentially endorsed the president’s planned 1% federal pay raise for civilian employees next year, a bipartisan group of House members are pushing for a bigger boost. [A bipartisan group of] Ten House lawmakers say civilian federal employees should earn pay parity with the military next year. Military members are on track to receive a 3% raise in 2021.” The article further explains that “Congress has stepped in twice in the last two years to override the president’s federal pay recommendations, with lawmakers securing a 3.1% boost for civilian employees for 2020 and a 1.9% bump in 2019.”

Don’t forget that due to the COVID-19 emergency, Wednesday July 15 is federal and generally state income tax filing and payment day for tax year 2019. It’s this year’s April 15.

Supplement to Friday Stats

David Ermer–CDC, COVID-19–

In the last Friday’s COVID-19 stats, the FEHBlog pointed out that while cases have been rising rapidly, deaths fortunately have not over weeks 20 through 27 of 2020 (counting from Friday through Thursday). The FEHBlog decided to go back an take a look at the preceding six weeks which started at the beginning of April and ended in mid-May. The great hunkering down began in mid-March.

Week141516171819
New Cases    180,867 177,930166,382180,917162,154144.995
New Deaths8,2419,88613,50411,12610,7458.949

As you can see from the supplemental stats, the weekly deaths in the U.S. peaked in mid-April and have been falling since then notwithstanding the increasing number of cases which spiked in mid-May and again in July.

The CDC last week posted a helpful discussion of similarities and differences between COVID-19 and the flu. The CDC notes

[While the flu and COVID-19 generally spread in similar ways,] COVID-19 is more contagious among certain populations and age groups than flu. Also, COVID-19 has been observed to have more superspreading events than flu. This means the virus that causes COVID-19 can quickly and easily spread to a lot of people and result in continuous spreading among people as time progresses.

Friday Stats and More

David Ermer–ACA, COVID-19, COVID-19 vaccine, Rx coverage–

This week’s chart of new COVID-19 cases (and deaths) is startling. Week 27 ended on July 9.

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What strikes the FEHBlog is that the number of COVID-19 related deaths has remained stable over this time period. If the number of new cases is a leading indicator of deaths, then the number of deaths should have steadily increased following week 20. That hasn’t happened. Why you ask? In the FEHBlog’s opinion, the at risk folks have been taking effective protective measures, and the doctors have learned better approaches to treating the disease.

On the COVID-19 vaccine front —

  • Medcity News reports that Moderna is making progress with its vaccine studies. If the studies prove successful, “The company said that it is on track to provide about 500 million and potentially up to 1 billion doses of the vaccine annually starting next year.”
  • Fierce Pharma reports that “In separate interviews this week, Pfizer CEO Albert Bourla and BioNTech CEO Ugur Sahin said their mRNA vaccine candidate could be ready to submit to regulators in the fall or winter, respectively, pending success in a massive pivotal study yet to kick off.”

Fingers crossed.

Pharma Catalyst informs us that “more than 20 leading biopharmaceutical companies are launching the AMR Action Fund, a ground-breaking partnership to invest nearly $1 billion to ensure a robust and diverse pipeline of new medicines to treat drug-resistant infections.” That’s important too.

The Affordable Care Act created “grandfathered plan” status for electing employer sponsored plans. Grandfather status exempts the plan from many of the ACA mandates. The Obama Administration used its regulatory authority to minimize the availability of this exemption. The Kaiser Family Foundation reported last year that 13% of employees were covered under a grandfathered plan. Most of the grandfathering occurs in the midwest. That’s more than the FEHBlog expected to find. In any event, today the Trump Administration’s ACA regulators issued a proposed rule to create two new flexibilities that would help employers preserve grandfather plan status. Here’s a link to the FAQ on the proposed rule.

Thursday Miscellany

David Ermer–ACA, CDC, COVID-19 vaccine, Federal employment benefits, OPM, SCOTUS–

The Supreme Court wrapped up its October 2019 term today. Because it relates to the Affordable Care Act, the FEHBlog calls attention to the ever reliable and prodigious Katie Keith’s Health Affair’s blog post about yesterday’s Little Sisters of the Poor v. Pennsylvania decision. As Ms. Keith explains, this decision “was the third time in six years that the Supreme Court has ruled on the scope of the contraceptive mandate. This post recounts the history of the litigation, summarizes the decision, and discusses the impact of the ruling.” This decision has no impact on the FEHBP coverage of contraceptives. Enjoy your time off, Justices.

Also on the ACA front, Fierce Healthcare reports that

The Affordable Care Act’s insurance exchanges could add more than 1 million new members because of the COVID-19 pandemic.

The analysis released Thursday by Avalere attributes the spike to special enrollment due to massive job losses caused by COVID-19. The boost in customers could cause more insurers to return to a market they have left after financial losses over the past few years.

“With unemployment rates at or near 10% in almost all states, many consumers have been separated from their previous employer-sponsored plans,” the analysis said. “The economics of Medicaid eligibility in many states and the recent boost to unemployment assistance indicate that many are turning to the exchanges for coverage.”

On the COVID-19 vaccine development front,

At Fortune Brainstorm Health this week, there was lots of talk about the 200-plus efforts to find a COVID vaccine, and the extraordinary collaboration among companies and governments to get vaccines tested, manufactured and distributed—far faster than ever before. “We are taking what normally takes five to seven years, and doing it in five to seven months,” said Johnson & Johnson CEO Alex Gorsky. But Gorsky—whose company is one of the leaders in the vaccine race—also issued a strong warning to the group not to think of a vaccine as a silver bullet.

However, an effective vaccine certainly would be better than a poke in the eye with a sharp stick. Must everyone feel the need to dampen expectations?

  • In the same vein, Fierce Pharma discusses an internal CDC debate over what would be an effective COVID-19 vaccine.

One of public health’s greatest accomplishments was eradicating smallpox back in 1979. To eradicate SARS-CoV-2, the virus that causes COVID-19 illness, we’ll need a vaccine that’s 70% effective—and 70% of the population will need to receive it, an FDA vaccine official said Wednesday.

That’s a higher bar than the FDA set last week. To pass muster at the agency, a COVID-19 vaccine will need to be at least 50% more effective than placebo, according to new FDA guidelines.

  • It’s worth noting that the smallpox eradication effort began in the 1790s and that pharma is on course for more than one vaccine concoction for COVID-19 which should lead to broader efficacy, right?

On the OPM front,

  • Federal News Network informs us OPM will be proposing to anoint greater Des Moine, IA as the latest metropolitan area in which federal employees will receive locality pay. Congrats Hawkeyes. “OPM will also propose an expansion of the existing Los Angeles/Long Beach, California, locality pay area to include Imperial County, California.” The changes if (when?) finalized would be effective January 1, 2021, and
  • Fedweek reports on a recent OPM Inspector General report on OPM’s federal employee retirement services. The Inspector General compliments OPM for its process improvements.