Friday Stats and More

Friday Stats and More

Based on the CDC’s Covid Data Tracker and using Thursday as the first day of the week, here is the FEHBlog’s weekly chart of new Covid cases from the 27th week of 2021 through the third week of 2022:

My word, could that be a cresting of the Omicron surge as discussed in this week’s posts?

The FEHBlog’s weekly chart of new Covid deaths has bounced up and down after climbing to just over 10,000 weekly deaths during the Delta surge. .

Last but not least here is the FEHBlog’s weekly chart of new Covid vaccinations distributed and administered from the 51st week of 2020 through the third week of 2022.

Here are links to the CDC’s Covid data tracker weekly review and its weekly Fluview.

In other COVID vaccination news —

  • The Wall Street Journal reports that

Vaccines and booster shots offer superior protection from the Delta and Omicron variants, according to three new studies released by the Centers for Disease Control and Prevention.

The data back up earlier findings supporting booster shots and offer the first comprehensive insight into how vaccines fare against the Omicron variant. In one of the studies published Friday, a CDC analysis found that a third dose of either the vaccine from Pfizer Inc.and BioNTech SE or Moderna Inc. was at least 90% effective against preventing hospitalization from Covid-19 during both the Delta and Omicron periods.

The American Hospital Association adds

According to data from 25 state and local health departments, adults who were unvaccinated against COVID-19 as the omicron variant emerged in December had nearly three times higher risk of infection than adults fully vaccinated against COVID-19 and five times higher risk than adults who had received a booster, the Centers for Disease Control and Prevention reported today. The highest impact of COVID-19 booster doses compared with full vaccination was recorded among persons aged 50 and older. Because of reporting lags, the influence of the omicron variant on COVID-19-associated deaths could not be evaluated by vaccination status in December, the authors note.

The FDA could authorize Pfizer’s COVID-19 vaccine for children under age 5 in the next month, Anthony Fauci, MD, director of the National Institute of Allergy and Infectious Diseases, said Wednesday.

“My hope is that it’s going to be within the next month or so and not much later than that, but I can’t guarantee that because I can’t out-guess the FDA,” he said during an interview with Blue Star Families, a nonprofit group that supports military families.

The younger age group will likely need three vaccine doses, he said, since two shots didn’t provide enough of an immune response during Pfizer’s clinical trials for kids ages 2-4.

In Covid vaccine mandate news, Govexec tells us

A federal court in Texas has issued an injunction against President Biden’s COVID-19 vaccine mandate for the federal workforce, pausing implementation of a requirement for more than 2 million civilian servants. 

The Biden administration has already had sweeping success with the mandate, as most agencies have seen virtually their entire workforces come into compliance. Still, federal offices across the country were just beginning to move forward with suspensions—which could eventually result in firings—for those who did not meet the requirements. Biden issued the mandate by executive order in September.    

Judge Jeffrey Brown, appointed by President Trump to the U.S. Court for the Southern District of Texas, said the case was not about whether individuals should be vaccinated or even about federal power generally. 

“It is instead about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment,” Brown wrote. “That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.” 

The Justice Department has appealed the decision to the U.S. Court of Appeals for the Fifth Circuit. The FEHBlog expects that the Fifth Circuit will lift the stay as soon as this weekend. The Society for Human Resource Management offers a helpful article for employers trying to keep track of the vaccine mandate decisions from the courts.

In other COVID vaccine mandate news, the Labor Department’s Wage and Hour Division announced today that

Employees [who are not exempt from the Fair Labor Standards Act] must be paid for time spent going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours. Therefore, if an employer requires an employee to obtain a COVID-19 vaccine dose, undergo a COVID-19 test, or engage in a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time that the employee spends engaged in the activity is compensable. Employees must be paid for such time during normal working hours, regardless of where the activity occurs. This is true regardless of whether the employer is subject to the OSHA Vaccination and Testing ETS.

In Covid treatment news, the Food and Drug Administration announced today that the agency “took two actions to expand the use of the antiviral drug Veklury (remdesivir) to certain non-hospitalized adults and pediatric patients for the treatment of mild-to-moderate COVID-19 disease. This provides another treatment option to reduce the risk of hospitalization in high-risk patients. Previously, the use of Veklury was limited to patients requiring hospitalization.”

From the Covid OTC testing coverage mandate department, the Kaiser Family Foundation has surveyed the coverage approaches of 13 large health insurers. Don’t blame the insurers on this one because health insurers don’t typically cover OTC products and the government only allow four days to implement the mandate.

From the and more department

  • In telehealth news, mHealth Intelligence tells us that

Telehealth utilization peaked in the first half of 2020 and decreased as the year came to a close, with providers predicting that virtual care use would continue to decline in upcoming years, according to the 2021 Medical Group Telehealth Survey.

AMGA Consulting conducted the survey and gathered responses from 56 medical groups representing more than 38,000 healthcare providers.

The majority of the participants (86 percent) were part of multispecialty groups with primary care, while the remaining were either multispecialty without primary care, primary care, or single-specialty groups. * * *

The survey results suggest that although telehealth use skyrocketed during the COVID-19 pandemic, virtual care may see the most success with patients who prefer the modality over in-person care or whose health concerns can be easily addressed virtually.

The FEHBlog remains a strong proponent of hub and spoke telehealth for mental health care because every televisit is in network.

  • The American Hospital Association informs us that “The Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology seeks comments through March 25 to inform potential future rulemaking on how the ONC Health IT Certification Program could incorporate standards, implementation specifications and certification criteria to reduce the burden of prior authorization.”
  • The Congressional Budget Office released a report titled “The Prices That Commercial Health Insurers and Medicare Pay for Hospitals’ and Physicians’ Services.”

CBO examined potential explanations for why the prices paid by commercial insurers are higher and more variable than those paid by Medicare FFS. CBO’s analysis and literature review suggest the following conclusions:

— Greater market power among providers consistently leads to prices for commercial insurers that are higher than Medicare FFS’s prices and that vary more widely, both among and within areas. Hospitals and physicians’ groups may have market power because they have a dominant share of the market in an area or because an insurer sees them as essential to its network of providers.

— Some of the variation in the prices that commercial insurers pay for hospitals’ and physicians’ services is explained by differences in the prices of inputs needed to deliver those services.

— Higher hospital quality is associated with higher prices paid by commercial insurers, although whether there is a causal link between quality and prices, and the direction of any such link, is not clear.

— The share of providers’ patients who are covered by Medicare and Medicaid is not related to higher prices paid by commercial insurers. That finding suggests that providers do not raise the prices they negotiate with commercial insurers to offset lower prices paid by government programs (a concept known as cost-shifting).

IBM is selling the data and analytics assets of its Watson Health business to a private equity firm as it looks to refocus on its core cloud business.

The sale, which is expected to close in the second quarter this year has been anticipated for quite some time, and comes following the limited success of Watson Health, despite a spate of high-profile acquisitions of health information companies to bolster the enterprise.

Financial terms of the deal were not disclosed.

[F]ederal civilian employees in the U.S. will now be paid at least $15 per hour.

OPM issued a memorandum for heads of Executive departments and agencies that provides implementing guidance for how agencies should adjust pay rates for General Schedule (GS) and Federal Wage System (FWS) employees stationed in the U.S., and how to use administrative authority for other pay systems to lift the pay of federal employees who currently make less than $15 per hour. In total, these changes will impact 67,000 out of 2.2 million federal employees. The largest share of these workers, over 56,000 of them, currently work at the Department of Defense. OPM’s guidance directs agencies to implement these changes by January 30, 2022

  • To tide you over the weekend, here is a link to Healthcare Dive’s Deep Dive on four 2022 key trends for providers and payers.

Thursday Miscellany

From the Omicron front, the American Hospital Association offers its January 2022 monthly COVID snapshot. “The COVID-19 Snapshot is the American Hospital Association’s look at what America’s hospitals and frontline workers are facing as they provide care during the public health emergency.”

From the COVID testing front, the FEHBlog commends this 20 minute long Wall Street Journal podcast on why at home COVID tests are so hard to find.

In that regard STAT News offers a report on a

new study raises significant doubts about whether at-home rapid antigen tests can detect the Omicron variant before infected people can transmit the virus to others.

The study looks at 30 people from settings including Broadway theaters and offices in New York and San Francisco where some workers were not only being tested daily but were, because of rules at their workplaces, receiving both the antigen tests and a daily test that used the polymerase chain reaction, or PCR, which is believed to be more reliable.

On days 0 and 1 following a positive PCR test, all of the antigen tests used produced false-negative results, even though in 28 of the 30 cases, levels of virus detected by the PCR test were high enough to infect other people. In four cases, researchers were able to confirm that infected people transmitted the virus to others during the period before they had a positive result on the rapid antigen test.

This study suggests to the FEHBlog that one rapid at home tests are still useful to help decide whether to end an isolation or quartine period at five days or once available whether or not a COVID pill should be taken. However, one use of a rapid at home test may not be so reliable to help decide whether or not to enter a gathering. In fairness to Abott and Quickvue, both manufacturers include two tests in each kit so that the test can be repeated a couple days later. If you are using these at home tests follow the manufacturers’ instructions.

From the COVID vaccine mandate front, the U.S. Court of Appeals for the Sixth Circuit on January 5 upheld by a 2-1 vote a regional stay on the Biden Administration’s government contractor mandate. As you know the U.S. Court of Appeals for the 11th Circuit is considering a nationwide stay on that mandate after deciding the stay may remain in place pending the Court’s final decision on that matter.

On Friday morning the U.S. Supreme Court will consider whether or not to maintain stays on the Biden Administation’s healthcare worker vaccination mandate and its OHSA ETS vaccinate or test program for employers with 100 or more employees. The Supreme Court allows the public to listen to the oral argument or read the transcript. The proceedings will begin at 10 am ET. The FEHBlog expects a decision from the Court in this accelerated proceeding next month.

On the private sector initiated vaccine front, the Society for Human Resource Management (SHRM) adds that

​Employers are on safer legal footing terminating employees for violating mandatory vaccination policies than imposing lesser punishments, legal experts advise. They say employers should not opt, for example, to withhold pay raises, make only vaccinated workers eligible to apply for internal positions or promote only vaccinated employees.

Many lower courts have upheld employers’ mandatory vaccination policies, which, unlike the Occupational Safety and Health Administration’s emergency temporary standard, aren’t yet before the Supreme Court, though the court may address them in passing.

On the human resources front —

  • SHRM offers 2022 guidance and reminders for benefit and compensation managers.
  • Govexec digs into the details of the President’s recent executive order adjusting federal employee compensation for 2022.

From the healthcare business front —

Healthcare Dive tells us that

Value-based primary care provider Vera Whole Health has announced plans to acquire health data and navigation company Castlight in a deal valued at approximately $370 million.

The transaction, which will bring a value-based care model to the employer healthcare market by integrating Castlight’stechnology with Vera’s clinical network and medical workers, is structured as an all-cash tender offer under which Vera will acquire all of Castlight’s outstanding shares.

Vera’s majority equity holder, Clayton, Dubilier & Rice, has committed to invest up to $338 million in the combination, while major health insurer Anthem (a long-time Castlight customer) has also pledged to make an investment, the size of which has yet to be disclosed.

Fierce Healthcare reports that

Magellan Healthcare has partnered with NeuroFlow to launch a digital emotional well-being program accessible to all Magellan members. 

The program went live at the start of the new year and aims to be a self-help tool, enabling members to take charge of their own mental health and build confidence and stress-management skills. NeuroFlow supplies the technology via a member-facing platform, which can be accessed either via an iOS or Android app or web browser. 

Members who use the platform can access exercises that are meant to keep them engaged and can receive recommendations for resources based on their needs. Activities include evidence-based videos, behavioral trackers and digital cognitive behavioral therapy programs developed by Magellan. The program can also refer members to a care manager or therapist.

Midweek update

Photo by Josh Mills on Unsplash

From the Omicron front —

  • David Leonhardt, writing in the New York Times, informs us that while the surge of Omicron cases is stressing hospitals, Omicron has created less hospitalizations, milder hospitalizations, and fewer deaths compared to the Delta variant which Omicron replaced.
  • Becker’s Hospital Review reports that “The national surge in COVID-19 cases fueled by the highly transmissible omicron variant may last weeks, rather than months, according to the most recent projections from the COVID-19 Scenario Modeling Hub, a consortium of researchers helping the CDC track the pandemic’s trajectory.”
  • Medscape offers expert opinions on whether the current Omicron surge will hasten the transition from pandemic to endemic. For example —

Whether the current surge will mean the predicted switch to endemic COVID-19 will come sooner, however, “is very hard to predict,” Michael Lin, MD MPH, told Medscape Medical News.

“It’s an open question,” he said, “if another highly transmissible variant will emerge.”

On a positive note, “at this point many more people have received their vaccinations or been infected. And over time, repeated infections have led to milder symptoms,” added Lin, hospital epidemiologist at Rush Medical College in Chicago, Illinois.

“It could end up being a seasonal variant,” he said.

On the COVID vaccine front, AHIP tells us that

Today the Centers for Disease Control’s Advisory Committee on Immunization Practices (ACIP) recommended a single Pfizer-BioNTech COVID-19 vaccine booster dose for persons aged 12-17 years at least 5 months after their primary series, by a vote of 13-1.

The Committee reviewed real-world data from Israel and the CDC showing there are no new safety concerns following a booster in this population, and that adverse events were less common from a 3rd dose as compared to the primary series.

Members of the Committee also stressed the primary focus continues to be vaccination of unvaccinated individuals, and that there is a need to increase education and understanding of the effects of COVID-19 on children and adolescents in order to help parents make informed decisions.

The FDA noted that it continues to review data on children aged 5-11 and will update recommendations when more data is available.

On the COVID testing front, Bloomberg offers a comprehensive look at the state of the Biden Administration’s efforts to improve availability of rapid at home COVID tests. Of note to health plans —

Private insurers will reimburse for at-home tests beginning at some point next week, when a Biden administration rule is set to take effect. That will allow Americans to submit claims, and could spark an initial spike in demand. But it remains to be seen whether people will take advantage of the reimbursement as filing insurance claims can be a time-consuming and tedious task.

In the FEHBlog’s view the Affordable Care Act converted health plans into public utilities. Aside from the wisdom of imposing this public health responsibility on health plans, this approach does not make sense due to the high administrative cost of processing paper claims. It will become a side show.

On the COVID treatment front, STAT News reports that

The Biden administration doubled its order of Covid-19 pills from Pfizer, a move that will modestly increase the limited U.S. supply of the treatment in the short term amid a record-setting surge in coronavirus casesThe New York Times writes. The new order will eventually provide enough pills for an additional 10 million Americans, bringing the government’s total order of the drug to 20 million treatment courses. But they will not all be available right away. Only 35,000 of the additional courses will be delivered this month, and 50,000 more in February, supplementing 350,000 treatment courses that were already expected over the next two months.

From the COVID vaccine mandate front, Govexec reports that the Postal Service has asked the Occupational Health and Safety Administration for “a 120-day extension to implement the [vaccinate or test] rule, saying that would allow enough time to update its systems for record collection and bargain with its unions over the details.”

From the Rx coverage front

  • Reuters reports that “Pfizer Inc  and Germany’s BioNTech SE  will develop an mRNA-based vaccine for viral infection shingles, collaborating for the third time after th success of their COVID-19 vaccine based on the same technology.
  • Healthcare Dive offers its observations on where drug prices are headed this year.
  • Biopharma Dive identifies five Food and Drug Administration approval decisions to watch in the first quarter of 2022.
  • In related news, mHealth Intelligence tells us that

“Researchers from the University of Massachusetts Amherst, Syracuse University and SUNY Upstate Medical University have collaborated to create a wireless sensor designed to prevent opioid relapses and overdoses. * * *

The opioid epidemic has steadily worsened across the country since the late 1990s. In 2019, nearly 50,000 people in the U.S. died from opioid-related overdoses, according to data from the National Institute on Drug Abuse. Further, around 21 to 29 percent of patients prescribed opioids for chronic pain misuse them, the federal data shows.  

To combat this issue, the research team — headed by Tauhidur Rahman, PhD, an assistant professor in the College of Information and Computer Sciences at UMass Amherst and co-director of the MOSAIC Lab — is developing a sensor, which will use machine learning to pinpoint psychophysiological signs in real time and determine whether they are consistent with opioid cravings. Cravings are one of the main drivers behind relapses and overdoses.

If a craving is identified, the sensor providers the user with mindfulness-based interventions. These ultimately could be customized based on the user’s behaviors and clinician input.

“Nothing like this exists today,” Rahman said in the news release. “And we believe that mobile technologies can provide an effective mechanism for people with addiction to monitor their condition and manage their cravings better.”


From the OPM front, Govexec reports that

The Office of Personnel Management is set to publish regulations implementing a 2021 law aimed at improving agency accountability for acts of discrimination and whistleblower retaliation against federal workers.

The Elijah E. Cummings Federal Employee Antidiscrimination Act, named for the late lawmaker who led the House Oversight and Reform Committee and signed on Jan. 1, 2021, encourages agencies to take action against federal employees who are found to be responsible for “intentional” acts of discrimination or retaliation, and be more transparent with the public when such incidents are adjudicated.

In a proposed rule set to be published to the Federal Register Thursday, OPM said that [among other new requirements] agencies will be expected to post a notification on their public-facing websites within 90 days of the finalization of any case in which the agency was found to have discriminated or retaliated against a federal employee.

Midweek Update / At Last a COVID Pill!

From the Omicron front, STAT News reports that

The Food and Drug Administration on Wednesday authorized Paxlovid, a pill developed and made by Pfizer, as a treatment for Covid-19, a significant step in the battle against the SARS-CoV-2 virus.

The drug was authorized for use in people as young as 12 so long as they weigh at least 88 pounds.

The authorization of an oral antiviral to beat back Covid has been eagerly anticipated because such a medicine could reach large numbers of people infected with the virus and prevent them from becoming seriously ill or hospitalized. Existing medicines, such as monoclonal antibodies, must be given intravenously or as injections.

Still, initial supplies of Paxlovid will be limited. Pfizer has said it expects to produce more than 180,000 courses of the treatment this year. The company said Wednesday it now expects to provide 120 million courses by the end of 2022, up from 80 million previously, thanks in part to new contract manufacturers. Pfizer has contracted with the U.S. government to provide 10 million courses by the end of 2022 at a cost of $5.29 billion.

Once readily available, Paxlovid will be the answer to a positive COVID test, rather than 10 days of quarantine or hospitalization. Jingle bells, indeed.

Speaking of the FDA, MedPage Today informs us that

The FDA approved the first monotherapy for bipolar-related depressive episodes, Intra-Cellular Therapies announced Monday.

The atypical antipsychotic lumateperone (Caplyta) gained an indication for the treatment of depressive episodes associated with bipolar I or II disorder in adults, as monotherapy and as adjunctive therapy with lithium or valproate. It was first approved for adults with schizophrenia in December 2019. * * *

“The efficacy, and favorable safety and tolerability profile, make Caplyta an important treatment option for the millions of patients living with bipolar I or II depression and represents a major development for these patients,” said Roger McIntyre, MD, of the University of Toronto, in a statement released by the manufacturer. “Caplyta is approved for a broad range of adult patients including those patients with bipolar II depression who have been underserved with limited treatment options.”

Switching back to the Omicron front, the Wall Street Journal reports that

New data from Scotland and South Africa suggest people infected with the Omicron variant of coronavirus are at markedly lower risk of hospitalization than those who contracted earlier versions of the virus, promising signs that immunity as a result of vaccination or prior infection remains effective at warding off severe illness with the fast-spreading strain.

The findings begin to fill in unknowns around the severity of the disease caused by Omicron, a major variable critical to health authorities around the world as they gauge how to react to the new variant.

Scientists are still unsure how the positive findings around hospitalizations will stack up against another major variable: Omicron’s much increased transmissibility. Both variables are likely to change depending on local conditions, such as the proportion of the population that has been vaccinated against Covid-19.

“This is a qualified good news story,” said Jim McMenamin, incident director for Covid-19 at Public Health Scotland, and one of the authors of the Scottish study, at a briefing. “It’s important we don’t get ahead of ourselves. A smaller proportion of a much greater number of cases can still mean a substantial number of people that might experience severe Covid infections that could lead to hospitalization.”

From the COVID vaccine mandate challenge front, the Journal also tells us that

The Supreme Court on Wednesday said it would hold fast-track oral arguments early next month to consider whether the Biden administration can enforce Covid-19 vaccine-or-testing rules for large private employers, as well as vaccine requirements for many healthcare workers.

The cases, set for argument on Jan. 7, could go a long way to determining how much latitude the administration has to combat the coronavirus pandemic in the workplace.

The high court issued a pair of short, written orders to schedule the arguments, in response to a growing pile of emergency appeals asking the justices to intervene.

The cases haven’t yet been fully litigated in the lower courts; the Supreme Court will be deciding whether the Biden administration rules can be implemented for now. But practically speaking, the court’s decision is likely to determine whether the requirements survive. 

Curiously, it does not appear that the stay of the government contractor mandate will be presented to the Supreme Court. Instead the parties have agreed to expedite briefing and the oral arguments on the merits of the case.

From the OSHA ETS front, the Society for Human Resource Management reports that

Now that a federal appeals court has revived the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), covered employers will need to prepare a written COVID-19 vaccination-or-testing policy by Jan. 10.

Under the ETS, employers may choose to require vaccination or allow covered employees who are unvaccinated to wear a mask and provide proof of a negative COVID-19 test on a weekly basis. The start date for the testing requirement has been extended to Feb. 9, but many other components of the ETS take effect on Jan. 10, such as the requirement for employers to determine the vaccination status of each employee and develop a written policy.

“Keep it simple,” recommended Eric Hobbs, an attorney with Ogletree Deakins in Milwaukee. “Do not include anything in the plan that you can’t follow through on.”

The Supreme Court is unlikely to rule on the OSHA ETS mandate stay before January 10, 2022.

From the Federal employee compensation front, Federal News Network reports that

President Joe Biden on Wednesday signed an executive order making federal pay raises official for many civilian employees in 2022.

As expected, General Schedule employees will receive an across-the-board federal pay raise of 2.2% in 2022, plus an additional 0.5% locality pay adjustment, to total a 2.7% average increase.

An Office of Personnel Management official confirmed the 2.7% federal pay raise to Federal News Network Wednesday evening. The agency hasn’t yet posted detailed pay tables describing pay rates for each locality pay area.

The raises take effect Jan. 1, or more specifically during the first pay period in January.

Under OPM’s regulations, Open Season changes take place on January 1 for annuitants and on the first day of the first pay period in the new year for employees. GSA’s federal employee calendar for 2022 shows that January 2 is the first day of the first pay period for next year.

From the Affordable Care Act front, the FEHBlog apologizes that he left a sentence off yesterday’s post about the current federal fiscal year’s PCORI fee. To close the unintended loop, IRS Notice 2022-04 states that “The applicable dollar amount that must be used to calculate the [PCORI] fee imposed by sections 4375 and 4376 for policy years and plan years that end on or after October 1, 2021, and before October 1, 2022, is $2.79” per bellybutton.

Weekend update

Photo by Jessica Delp on Unsplash

Congress has lowered the curtain on the first session of the current two year long Congress, the 117th in our Nation’s history.

Roll Call reports that

Sen. Joe Manchin III said on Sunday that he can’t support the sweeping social safety net and climate change package that President Joe Biden and Democratic leaders have made their top legislative priority.

The West Virginia Democrat’s opposition is likely the final nail in the massive $2 trillion-plus “Build Back Better” legislation given the Senate’s 50-50 split, unless extensive changes are made that would result in key provisions being scuttled.

“I can’t vote for it and I cannot vote to continue with this piece of legislation,” Manchin told “Fox News Sunday.” “I just can’t. I’ve tried everything humanly possible.  I can’t get there … This is a ‘no.’ “

Of course, the legislative struggle over the BBB bill is not over but at least we should enjoy a peaceful holiday period.

From the Omicron front, Bloomberg reports that

Lockdowns in the U.S. will likely not be necessary even as Covid-19 cases increase, according to President Joe Biden’s top medical adviser, Anthony Fauci. Even so, many hospitals may be strained as the omicron variant spreads, especially in regions with lower levels of vaccination, he said. 

New York City Mayor Bill de Blasio called on the federal government to step up supplies of tests and treatments to the city amid a spike in infections caused by the omicron variant. New York state broke a record for new infections for the third consecutive day.

From the COVID mandate challenge front —

Since last Wednesday

  • The Fifth Circuit U.S. Court of Appeals lifted the nationwide stay on the CMS healthcare provider COVID vaccine mandate, but left the stay in place for 24 states which had obtained their own stays. The federal government has asked the U.S. Supreme Court to lift the stays applicable to those 24 states. The Supreme Court has allowed the respondent states until December 30, 2021, to respond to the federal government’s motion.
  • The American Hospital Association (“AHA”) reports in the wake of the Court action that “CMS’s website states that CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.” AHA has confirmed with CMS that this statement applies nationwide and remains accurate even after the Fifth Circuit’s order staying the nationwide effect of the Louisiana district court’s preliminary injunction. 
  • The Sixth Circuit U.S. Court of Appeals lifted the nationwide stay on the OSHA ETS COVID vaccination screening program. The State of Georgia has asked the U.S. Supreme Court to reinstate the stay.
  • The American Hospital Association reports again in the wake of the Court action that “OSHA has announced that it is ‘exercising enforcement discretion with respect to the compliance dates of the’ mandate. OSHA states that ‘it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.’ OSHA has also promised to ‘work closely with the regulated community to provide compliance assistance.’”
  • The Eleventh Circuit U.S. Court of Appeals upheld the nationwide stay on the government contractor mandate. The federal government is expected to ask the Supreme Court to lift this stay tomorrow.
  • It certainly appears that all three mandate issues will be presented to the Supreme Court simultaneously. 

In Affordable Care Act news, CMS announced on Friday that

Health insurers have provided approximately $2 billion in rebates for the 2020 reporting year to an estimated 9.8 million consumers, the Centers for Medicare & Medicaid Services (CMS) is announcing today. Insurers were generally required to provide such rebates and notice of any rebates owed to consumers no later than September 30, 2021. Rebate payments can be provided in the form of a premium credit, lump-sum check, or, if a consumer paid the premium using a credit card or direct debit, by lump-sum reimbursement to the account used to pay the premium.

CMS released a list today of all insurers owing Medical Ratio Loss (MLR) rebates for the 2020 reporting year, with total amounts by state and market. The CMS market breakdown estimate includes approximately 4.8 million consumers in the individual market and 5 million employees in the group market (this represents 2.6 million employees in the small group market, and 2.4 million employees in the large group market). 

Today’s release also includes the Public Use Files (PUFs) containing the data from all health insurers’ final MLR filings for the 2020 reporting year. 

For more information visit:

Link to PUFs here:

If federal employee compensation news, Govexec tells us that

[Last] week, the President’s Pay Agent, which is made up of Labor Secretary Marty Walsh, Acting Office of Management and Budget Director Shalanda Young and Office of Personnel Management Director Kiran Ahuja, issued its annual report ahead of President Biden’s executive order finalizing an average 2.7% pay raise in 2022. The pay agent declined to issue waivers based on a locality’s number of authorized positions, but approved Carroll County’s addition to the Davenport, Iowa, locality pay area due to the fact that it recently has met the 2,500 employee threshold.

Monday Roundup

Photo by Sven Read on Unsplash

From the political front, Politico reports that

[Senator] Joe Manchin (D WV) remains at the negotiating table [with his party’s leadership], despite deep concerns about President Joe Biden’s climate and social spending bill [a/k/a the Build Back Better Act]. 

After speaking with Biden on Monday afternoon, Manchin said he was still “engaged” in discussions. And as he left the Capitol, the key Democratic senator made clear he wasn’t ready to commit to voting for or against a bill that is still coming together behind closed doors.

From the White House, the President issued an executive order on improving customer service performed by government agencies. Federal News Network explains that

Jason Miller, the Office of Management and Budget’s deputy director for management, said the EO also directs agencies to coordinate work on services that reflect common life experiences, including turning 65 and planning retirement, having a child or applying for a small business loan. * * *

The executive order gives senior administration officials 90 days to select a limited number of these customer life experiences to prioritize across government. It requires Miller and other members of the President’s Management Council to update [Presidential senior advisor Neera] Tanden and White House Chief of Staff Ron Klain on progress made improving these customer life experiences every six months.

The EO also gives the General Services Administration six months to develop a roadmap of shared services that agencies can use to improve customer experience.

The administration specifically names and the U.S. Web Design System, a set of templates meant to create a common look and feel for agency websites, as tools that all agencies should use to improve federal customer experience.

Here is a link to the White House’s press release on the Executive Order as found on

From the Affordable Care Act front, the Internal Revenue Services has released the final Affordable Care Act coverage reporting forms, 1095-B and 1095-C, along with the final instructions for those forms.

From the Office of Information and Regulatory Affairs’ website, we find that the federal government’s Fall 2021 regulatory agenda has been published. Here is a link to OPM’s Fall 2021 agency rule list. A chill went up the FEHBlog’s spine when he noticed that the ACA provider non-discrimination proposed rule mandated by the No Surprises Act will be published this month due to a statutory requirement. Cost curve up?

From the employer sponsored care front, Healthcare Dive reports that

— The average per-employee cost of employer-sponsored health insurance jumped 6.3% in 2021, as employees and their families resumed care delayed last year due to the pandemic, according to a new survey of employers from Mercer.

— That’s the highest annual increase since 2010. Health benefit costs outpaced growth in inflation and worker compensation through September, the employee healthcare and investment consultancy said.

— The findings raise questions of whether employers are experiencing a temporary correction to the cost trend following a minimal year-over-year increase of just 3.4% in 2020, or if they’re staring down the barrel of a new period of higher cost growth.

No doubt those questions can keep actuaries awake at night.

From the good COVID news department (yes it exists), STAT News informs us that

Paxlovid, Pfizer’s oral treatment for Covid-19, led to an 89% reduction in hospitalization and death in final data from a pivotal trial, the company said today, confirming the results of an earlier analysis.

The news should allay concerns that the efficacy of Pfizer’s pill would wane over time. Molnupiravir, a Covid-19 antiviral from Merck, appeared 50% effective in an interim trial analysis but fell to about 30% in the final tally. Both studies enrolled unvaccinated patients who were recently diagnosed with Covid-19 and had at least one risk factor for severe disease.

The next step for Pfizer is submitting the results to the FDA, which the company expects to do this month, and applying for an emergency-use authorization. The agency is yet to disclose whether it will convene a panel of expert advisers before deciding on Paxlovid.

Based on the President’s winter is coming plan, the FEHBlog’s bet is on the FDA approving the Pfizer drug without delay.

Weekend Update

Congress will remain in session for Committee business and floor voting.

The focus of attention will be the President’s Build Back Better Act. The Senate Finance Committee released the text of its portion of the Senate version of the BBB Act yesterday. The Wall Street Journal explains that

President Biden this week will lobby Sen. Joe Manchin, the centrist West Virginia Democrat, in an attempt to lock in a deal on a roughly $2 trillion social-policy and climate bill that Democrats hope to finish by Christmas.

Passage hinges largely on the support of Mr. Manchin, who hasn’t endorsed the legislation. He has repeatedly raised concerns about the cost of the bill and the potential effect of new government spending on inflation. Messrs. Biden and Manchin plan to talk early this week, a Senate aide said.

Senator Manchin’s vote is critical because the Democrat’s can’t lose one vote in the evenly divided Senate as the Republicans in the Senate all intend to vote against the bill. The Journal adds

With Democrats holding the narrowest congressional majority in decades, passing the sweeping bill is akin to threading yarn through a tiny needle. Democrats already navigated past opposition from Arizona Democratic Sen. Kyrsten Sinema on several of the tax increases they originally had proposed, making revenue-generation intended to pay for the legislation difficult.

Ms. Sinema hasn’t endorsed the House-passed bill. Democrats have also needed to write a bill that lawmakers from the party’s most progressive wing would support, along with centrists.

Because the Senate bill will not mirror the already passed House bill, the two Houses of Congress might convene a conference committee. Time will tell.

Tomorrow is the last day of the current Federal Benefits Open Season. OPM explains that

The Federal Benefits Open Season ends at 11:59 pm Eastern Time on Monday December 13, 2021 for the Federal Employees Dental and Vision Insurance Program (FEDVIP) and the Federal Flexible Spending Account Program (FSAFEDS). Open Season for the Federal Employees Health Benefits Program (FEHB) ends at 11:59 pm, in the location of your electronic enrollment system, on Monday December 13, 2021.

From the No Surprises Act front, the Kaiser Family Foundation offers a consumer friendly overview of the law’s provisions that take effect on January 1, 2021. Basically, FEHB plans will pay certain out-of-network (“OON”) providers (emergency care, air ambulance, and OON providers when the patient is treated at an in-network facility) a qualifying payment amount (“QPA”), net of the in-network cost sharing amount which is the member’s financial responsibility. If the provider is dissatisfied with the QPA, he or she must work out the matter with the health plan. The member therefore is held harmless against the outcome of that controversy.

These QPA provisions, however, are inapplicable to claims submitted for FEHB plan members who have primary Medicare coverage or in the case of fee for service plans have primary Medicare Part A only. Also if another payer is primary to the FEHB plan, e.g., a spouse’s plan, then the primary plan is responsible for compliance with the No Surprises Act. The FEHB plan is responsible only for making the secondary payment, which usually equals the primary plan’s deductibles and co-insurance.

From the health care business front, Medcity News informs us that

After a challenging quarter, insurance company Bright Health is raising $750 million in financing. In an unusual move, another insurance company is joining as an investor. Cigna Ventures and Bright’s largest shareholder, New Enterprise Associates, both participated in the financing.

Head of Cigna Ventures Tom Richards talked about potential opportunities to collaborate with NeueHealth, Bright’s provider enablement platform to help practices move to value-based contracts.

“We seek to be partners of choice and we look forward to exploring new ways that NeueHealth and Evernorth can potentially provide services to each other’s customers and clients,” he said in a news release.

From the Omicron front, Bloomberg reports (recall last week’s post about U.S. experts tracking the U.K.’s experience with Omicron because the United Kingdom started to experience Omicron cases before the U.S.):

Prime Minister Boris Johnson warned the U.K. is facing a “tidal wave” of omicron infections and set an end-of-year deadline for the country’s booster vaccination program. Infections in the U.K. from the new variant doubled in the last day and now make up a third of new cases in London. 

Anthony Fauci, U.S. President Joe Biden’s chief medical adviser, said omicron appears able to evade vaccines and some Covid-19 treatments but that a booster shot can increase protection. At least 30 U.S. states are reporting cases of the variant.  

CNBC adds that “Covid booster shots are “optimal care” as the deadly virus continues to mutate and spread, but the U.S. government is staying firm for the time being on the definition of fully vaccinated, top U.S. infectious disease expert Dr. Anthony Fauci said Sunday.”

Weekend Update

Hanukkah greeting template. Nine candles and wishing. Hand drawn sketch illustration. White, yellow and blue colors

The House and the Senate will be holding Committee business and floor votes this week. Yesterday when writing up Cybersecurity Saturday, the FEHBlog could not find any fresh news on the National Defense Authorization Act (“”NDAA”) vote. The NDAA often includes federal procurement law changes and this year may include cyberbreach and cyber-ransom payment notice requirements.

The Wall Street Journal reports today that

Congress is expected to focus this week on the defense policy bill known as the National Defense Authorization Act, or NDAA, which was held up in the Senate last week over provisions regarding Russia and China. Instead of the Senate passing its own bill, a compromise bill—negotiated by leadership in the House and Senate—is expected to come to the House for a vote as early as this week.

The Journal further reports that Congressional leadership is working on the debt ceiling issue which may come to a head mid-month and hoping to bring the Build Back Better multi-trillion dollar budget reconciliation bill to a vote before Christmas.

The House of Representatives’ Postal Reform bill (H.R. 3076) would create a new Postal Service Service Health Benefits Program within the FEHB Program. The PSHBP would be tightly integrated with Medicare with respect to annuitant coverage. For that reason, the bill initially was referred to the House Oversight and Reform, Energy and Commerce, and Ways and Means Committees.

A friend of the FEHBlog called to his attention the fact that last Friday December 3, the Energy and Commerce and Ways and Means Committee were granted an extension for further consideration of the bill ending not later than Jan. 21, 2022. Of course, the Oversight and Reform Committee approved a substitute bill for House floor voting on May 13.

The ongoing Federal Employee Benefits Open Season ends on a week from tomorrow December 13, a few day following the end of Medicare Open Enrollment period which ends this week on December 7.

From the Delta variant front —

  • Today’s Washington Post has an interesting article on early analyses of the Omicron variant. The Post notes that

The omicron variant is likely to have picked up genetic material from another virus that causes the common cold in humans, according to a new preliminary study, prompting one of its authors to suggest omicron could have greater transmissibility but lower virulence than other variants of the coronavirus.FAQ: What to know about the omicron variant of the coronavirus

Researchers from Nference, a Cambridge, Mass.-based firm that analyzes biomedical information, sequenced omicron and found a snippet of genetic code that is also present in a virus that can bring about a cold. They say this particular mutation could have occurred in a host simultaneously infected by SARS-CoV-2, also known as the novel coronavirus, and the HCoV-229E coronavirus, which can cause the common cold. The shared genetic code with HCoV-229E has not been detected in other novel coronavirus variants, the scientists said.

The study is in preprint and has not been peer-reviewed.

  • National Public Radio offers conservative yet sensible guidance filled with expert opinions on how to navigate the holiday season without contracting COVID. For example,

The good news is, you don’t have to hibernate like it’s 2020. Experts note we’re in a much different place than we were last winter, with COVID-19 vaccines and boosters now widely available. There’s good hope that the current vaccines offer protectionagainst severe disease with omicron. 

That said, if this pandemic has taught us anything, it’s that when you don’t know what you’re dealing with, “we should invoke the precautionary principle,” says Dr. Abraar Karan, an infectious disease physician at Stanford University. 

In other words, don’t panic, but do be thoughtful about what risks you want to take.

In the FEHBlog’s opinion, that’s sound approach to living one’s life.

Friday Stats and More

Based on the Centers for Disease Control’s COVID Data Tracker and using Thursday as the first day of the week, here is the FEHBlog’s weekly chart of new COVID cases for this year.

The Wall Street Journal reports that

The new Omicron variant was identified in more than a dozen people in at least nine states, early evidence of its presence across the U.S.

While some of the people in the U.S. who have contracted the Omicron variant of the coronavirus that causes Covid-19 had recently traveled to southern Africa, where it was first identified last week, at least two states reported community spread of the new variant. States to report Omicron cases span the country from Hawaii to California and New York.

“It’s certainly spreading in the U.S.,” said Samuel Scarpino, managing director of pathogen surveillance at the Rockefeller Foundation. 

The Delta variant begs to note add “all of the other cases are mine.”

Here is a link to the CDC’s chart of new COVID hospitalizations which continues to trend up.

Here is the FEHBlog weekly chart of new COVID deaths for 2021

Oddly the number of deaths popped up last week.

Here’s the FEHBlog’s weekly new COVID vaccinations delivered and administered during the last two weeks of 2020 and this year.

In this regard, the Wall Street Journal reports that

The U.S. has plenty of Covid-19 vaccines but retail pharmacies are struggling to quickly administer them in some places.

Vaccine seekers in some states face waits of days or weeks for doses as local health officials hustle to improve access to meet surging demandCVS Health Corp.  Walgreens Boots Alliance Inc. and Walmart Inc., which are facing staffing shortages, now say they may not be able to accommodate people without appointments.

Millions of Americans are newly eligible for booster shots, and federal health officials in November recommended the vaccine for use in children as young as 5 years old. Concerns about the risks posed by the new Omicron variant also are driving more people to get vaccinated, health officials say.

An average of 1.4 million doses were administered daily in the U.S. in the week ended Thursday, a 22% increase from the previous week, which included Thanksgiving, according to the Centers for Disease Control and Prevention.

(The FEHBlog’s chart does not show a sharp increase because the government was not reporting vaccination statistics over the four day Thanksgiving weekend.)

Here is a link to the CDC’s weekly interpretation of its COVID statistics.

The Society for Human Resource Management discusses the impact of Omicron and the President’s COVID awareness program on employers.

From the influenza front, the CDC reports that “Seasonal influenza activity in the United States remains low, but in recent weeks, the number of influenza virus detections reported by clinical and public health laboratories has increased, and the percent of outpatient visits for respiratory illness has trended upward.” Next week is National Flu Vaccination Week.

From the Capitol Hill front, Federal News Network informs us that as expected,

President Joe Biden signed a continuing resolution Friday to keep funding federal government operations for another three months [precisely February 18, 2022], avoiding a government shutdown.

The  passed the Senate late last night by a margin of 69-28, while the House had approved the same measure earlier in the day on a party line vote, with only one Republican voting in favor.

Federal News Network reports at length about the House Oversight and Reform Committee vote approving an Committee leadership sponsored bill to strengthen OPM (H.R. 6066). The article notes that today OPM Director Kiran Ahuja “spoke at a virtual discussion hosted by NAPA. She reiterated that rebuilding the agency is one of her top priorities. In the last year, OPM has hired about 340 new employees, Ahuja said.”

From the pharmacy / PBM front —

  • Forbes interviews Walgreens CEO Roz Brewer about her primary care oriented strategy for the large pharmacy chain.
  • Fierce Healthcare tells us that

Express Scripts has launched a new solution that aims to integrate prescription discount card pricing into members’ existing benefits.

Through the new Right Price offering, a member who is eligible for savings through a discount card will automatically see those savings applied at the pharmacy counter. Matt Perlberg, senior vice president of supply chain at Express Scripts, told Fierce Healthcare that the pharmacy benefit manager most often sees these discounts come into play for members who have yet to meet their deductible.

For about 2% of claims, members who are purchasing generic drugs but have not yet met the deductible may find these coupon cards lead to a lower price than their drug benefits, Perlberg said.

In other strategy news, Beckers Payer Issues reports that

UnitedHealth Group CEO Andrew Witty said during a Forbes Annual Healthcare Summit discussion he is exploring how the company’s payer and provider branches can work together more closely. 

The initiative aims to provide government and employer customers with more comprehensive offerings, Mr. Witty said Dec. 2, according to Forbes

Mr. Witty pointed to developing mental health strategies as one avenue for combined growth.

That makes sense to the FEHBlog.

Tuesday’s Tidbits

Photo by Patrick Fore on Unsplash

From the Delta variant front, David Leonhardt in the New York Times Mornings column tries to place the pre-Thanksgiving increase in COVID cases in perspective. He encourages readers to recognize that it’s the cadre over 65 and particularly those in their 80’s and 90’s who are threatened by COVID.

Covid is the threat on many of our minds. But for most people under 65, the virus may present less risk than a car trip to visit relatives this week.

The situation is more frightening for older people, especially those in their 80s and 90s. For the oldest age groups, Covid presents a real risk even after vaccination. It appears to be more dangerous than a typical flu and much more dangerous than time spent riding in a vehicle, based on C.D.C. data.

As a result, older Americans need protection during a surge. (The same is also true of a small percentage of younger people with specific vulnerabilities to Covid, like organ-transplant recipients.) The most effective way to protect vulnerable people is through vaccination — not only of them but also of others who might infect them [e.g., initial vaccinations for children beginning at age 5 and young teenagers and boosters for fully vaccinated adults, after two months for the Johnson & Johnson vaccine and six months for the mRNA vaccines.]

STAT News reminds us that the FDA will consider granting emergency use authorization to the Merck anti-viral pill for treating early COVID next Tuesday. However,

[C]linical trials for both the Pfizer and Merck antivirals focused on unvaccinated people with at least one risk factor for developing severe Covid-19. Trial data, as disclosed by the drug companies, shows them to be remarkably effective: No patient in either study died after being treated with a course of antivirals.

But it might be difficult to get the drugs outside a clinical trial setting. Depending on the particular patient, it could involve four individual steps: recognizing symptoms, receiving a positive Covid-19 test result, being prescribed an antiviral by a doctor, and picking up the pills at a nearby pharmacy.

Each step could prove difficult, Gaffney said, beginning with the challenge of recognizing symptoms during winter, when early signs of Covid-19 might be easily written off as a cold, flu, or allergies. Even if patients do quickly suspect they have Covid, diagnostic tests are still sometimes hard to come by. Many of the patients who test positive won’t have primary care physicians. And perhaps worst: The antivirals are ideally taken just three days after symptom onset, meaning the four-step process can’t face any setbacks.

Of all the challenges patients will face when seeking the antiviral treatments, the lack of access to efficient testing is by far the largest. * * *

[Céline] Gounder, a physician and NYU professor who served on President Biden’s Covid advisory board in the months before his inauguration] suggested that some immunocompromised people, for instance, should be prescribed the antivirals preemptively, if they’re exposed to Covid but haven’t tested positive — eliminating a potentially burdensome step. * * *

Ideally, though, people who live outside congregate settings would be able to access the same level of service at retail pharmacies. Other fixes, Gounder suggested, could include issuing a “standing order” for the drugs — essentially, allowing an entire city or state’s population to receive the drugs without a prescription.

In other words, we are close to having a Flonase for COVID.

From the Delta variant vaccine mandate front, the Wall Street Journal reports that

The Biden administration on Tuesday filed an emergency court motion that seeks the immediate reinstatement of its rules requiring many employers to ensure their workers are vaccinated or tested weekly for Covid-19.

The Justice Department filed the request with the Sixth U.S. Circuit Court of Appeals in Cincinnati, which last week was designated as the court that would decide legal challenges filed around the country to the vaccine-or-testing rules.

The Occupational Safety and Health Administration earlier this month formally issued the requirements, which apply to businesses with 100 or more employees. The rules cover roughly 84 million workers and are scheduled to take effect Jan. 4.

Also because the government contractor mandate requires contractors to verify its employees’ COVID vaccination status with supporting documents, the Society for Human Resource Management offers guidance on how employers can recognize fake vaccination cards.

From the tidbits department —

  • The Federal Times informs us that “Legislation introduced in the House Tuesday would not only establish credentials necessary for all future Office of Personnel Management directors, but also formally dictate the agency’s role in leading human resources through data-driven and modern policy. Under the bill, introduced by Rep. Gerry Connolly, D-Va., a nominee for OPM director would have to have prior human capital experience and be chosen without regard for political affiliation.”

The [independent dispute] system chosen by the Biden administration was expected to push insurance premiums down by 0.5% to 1%, the Congressional Budget Office estimated.

“Everyone has to give a little to get to a good place,” [HHS Secretary] Becerra said. “That sweet spot, I hope, is one where patients … are extracted from that food fight [between out of network providers and health plans]. And if there continues to be a food fight, the arbitration process will help settle it in a way that is efficient, but it also will lead to lower costs.”

  • The International Foundation of Employee Benefit Plans provides its insights into the new proposed rule on ACA reporting referenced in yesterday’s FEHBlog post. The proposed rule would provide:

— An Automatic 30-Day Extension of Deadline for Furnishing Statements Under Sections 6055 and 6056

— An Alternative Manner of Furnishing Statements Under Section 6055 During Taxable Years When the Individual Shared Responsibility Payment is Zero

Under the proposed alternative manner of furnishing, the reporting entity must post a clear and conspicuous notice on the entity’s website stating that responsible individuals may receive a copy of their statement upon request. The notice must include an email address, a physical address to which a request may be sent, and a telephone number that responsible individuals may use to contact a reporting entity with any questions.

The public comment period on this IRS proposed rule ends in roughly sixty days.

  • Govexec offers a helpful to-do list for the ongoing Federal Benefits Open Season from Nov. 8-Dec. 13
  1. Use the plan comparison tools available at OPM’s website and Checkbook’s Guide to Federal Health Plans to compare the top three or four health plan options for you and your family’s needs.
  2. Register to attend a virtual health fair hosted by the Federal Long Term Care Insurance Program. There will be live chat days on Nov. 12, Nov. 19, Dec. 1, and Dec. 8. 
  3. The National Active and Retired Federal Employees Association’s Federal Benefits Institute will have a variety of resources available during open season, including a live webinar series.