THE PROGNOSIS

 A former White House staffer and several congressional aides and activists say they’ve been told the Trump administration has moved away from seeking an Obamacare replacement and is instead focused on damage control should a judge rule next month to topple the entire law.

Trump made waves earlier this year by promising to come up with yet another Obamacare replacement plan, but a high-stakes case before the Court of Appeals for the 5th Circuit is threatening him and other Republicans seeking reelection with a political wild card, as it could result in millions of Americans losing coverage as the election season heats up.

“There seems to be a decreasing appetite for the ‘big plan’ reveal and instead just focusing on responding to the 5th Circuit with prudence and a minimum of hysteria,” a former senior administration official wrote me in an email yesterday.

The White House denied it has halted work on a proposal but wouldn’t provide details about who is working on such a plan, what it might contain or when it might be ready.

“This is false,” said spokesman Judd Deere, saying a plan is being worked on “as the president and other administration officials have indicated many times.”

But conservative groups say they’ve not been told about an Obamacare replacement plan, even though their buy-in would almost certainly be sought by the White House.

“Although we’ve had discussions with the White House on health care, we’ve heard nothing from the White House on a health-care plan,” said Jason Pye, vice president of legislative affairs for FreedomWorks.

Most Republicans looking ahead to the 2020 election are more worried about defending themselves from Democratic attacks over the lawsuit to overturn the ACA rather than attacking Obamacare all over again.

The 5th Circuit is expected to issue a ruling in the next few weeks on a lawsuit from more than a dozen GOP-led states charging Obamacare is unconstitutional. In an unusual move, Trump’s Justice Department has taken their side rather than defend the law. Whichever way the court lands, the ruling is certain to be appealed and could end up at the Supreme Court next year.

A ruling against Obamacare would put the White House and the Department of Health and Human Services in a tight spot politically, forcing officials to answer questions about what would happen to the millions of people who rely on provisions in the ACA for their coverage and consumer protections.

It’s a scenario Democrats hammered last year as they won the House majority, and Republicans are well aware they’ll face the same attacks next year.

“Rehashing ‘repeal the ACA and replace with something better’ isn’t a winning message, and I’m guessing they know that,” said Shawn Gremminger, senior director of federal relations at Families USA.

Yet Trump didn’t seem to know that earlier this year, when he repeatedly caught congressional Republicans off guard by tweeting that specific offices were working on yet another Obamacare replacement plan.

Congress already failed to repeal and replace the ACA back in 2017. As we’ve written numerous times, another repeal attempt is the last thing most Republicans want. Much to their chagrin, Trump kept bringing it up.

Let’s take a brief stroll down memory lane.

Trump tweeted this in March, prompting mass confusion about whether Republicans in Congress would try again to repeal the ACA:

A few days later, the president claimed Republicans were actively working on a replacement plan and would vote on it immediately after the 2020 election:

AHH, OOF and OUCH

AHH: The Trump administration intends to “clear the market” of flavored e-cigarettes amid investigations into illness and deaths linked to vaping, Health and Human Services Secretary Alex Azar said during an Oval Office meeting yesterday. Officials announced a major move to ban most flavored products that could result in sweeping changes to the industry. Azar said the FDA is looking to finalize a plan on these products in the next several weeks, and that the plan would take effect a month after that, our Post colleague Laurie McGinley reports.

“The policy, Azar said, would require the removal from the market of most flavored-e-cigarettes, including mint and menthol. The flavored products would not be allowed back on the market until — and if — they receive specific approval from the FDA,” she writes. “The policy being developed wouldn’t affect tobacco-flavored e-cigarettes, whose manufacturers would have until next May to file for approval. People on both sides of the issue said that the industry might sue FDA to try to block the policy.”

“We can’t allow people to get sick. And we can’t have our youth be so affected,” Trump said at the meeting. He added that first lady Melania Trump feels “very, very strongly” about the issue because of their 13-year-old son Barron.

The administration’s announcement comes amid rising concern about the risks of vaping, as health officials investigate more than 450 cases, and six confirmed deaths, of lung disease linked to vaping. “With the picture still murky, vaping critics have seized the moment to press for tougher regulation of conventional e-cigarettes, which come in sweet and fruity flavors that have been embraced by many young people,” Laurie writes.

Some lawmakers swiftly praised the announcment. 

From Rep. Diana DeGette (D-Colo.):

House Energy and Commerce Committee Chairman Frank Pallone (D-N.J.) called the announcement “long overdue”:

Sen. Dick Durbin (D-Ill.) called the announcement “long overdue but welcome." Politico's Sarah Owermohle, Anita Kumar and Adam Cancryn report the announcement was in part a way to make sure Democrats who have been vocal about the issue, like Durbin, don't get all the credit for any progress. "The No. 2 Senate Democrat phoned Azar twice in the past week, both times urging him to ban flavored vaping products, according to a person familiar with the calls," they report: 

CNN’s Kate Bennett pointed to the influence of the first lady:

Meanwhile, not all Republican lawmakers were as supportive of the announcement. Sen. Ron Johnson (R-Wis.) told the Hill e-cigarettes could continue to be available for people who use them to reduce their use of regular cigarettes. “I have heard from so many people that vaping has saved their lives,” he said. “We need to keep that in mind.”

OOF: OxyContin manufacturer Purdue Pharma has reached a tentative settlement with the 23 states and more than 2,000 local governments that sued the company over its role in the nation’s opioid crisis, our Post colleagues Aaron C. Davis, Lenny Bernstein, Joel Achenbach and Scott Higham report.

Some state attorneys general that sued Purdue and the Sackler family that owns the company have reservations about the deal and said they planned to continue pursuing the company, but the executive committee of lawyers representing the cities, counties and other groups is recommending the settlement be accepted.

“Under terms of a plan negotiated for months, the Sacklers would relinquish control of Stamford, Conn.-based Purdue Pharma. The company would declare bankruptcy and be resurrected as a trust whose main purpose would be to combat the opioid epidemic,” our colleagues write. “If the deal becomes final, it would be the first comprehensive settlement in the broad legal effort to hold drug companies accountable for their role in the opioid epidemic. To date, Purdue has also settled with one state, Oklahoma, for $270 million, and won a victory when a North Dakota judge threw out the state case against the company.”

OUCH: Tonight 10 Democratic candidates will take the stage in Houston for the third presidential debate. Like the first two debates, we're expecting a spirited health-care discussion. It will be the first time Sen. Elizabeth Warren (D-Mass.) and former vice president Joe Biden will share the stage, likely leading to more clashes over the public option approach versus Medicare-for-all.

— The industry coalition fighting Medicare-for-all will run television and digital advertising around the debate, as part of a seven-figure ad campaign. The ads will run on ABC and Univision television stations, as well as on both networks’ digital properties on desktop, mobile and Connected TV.  The coalition will also run advertisements on Facebook, Twitter, and Snapchat, as well as a takeover of YouTube’s homepage following the debate.

One of the ads:

AGENCY ALERT

(Jacquelyn Martin/AP)

— Administration officials who testified before lawmakers yesterday had little explanation for trying to eliminate a legal protection that allows critically ill migrants to avoid deportation while they receive treatment, our Post colleague Abigail Hauslohner reports. The administration later walked back that move.

Last month, more than 400 individuals, including ill children and their caregivers, received letters from the government warning they had 33 days to leave the country or they would be deported – denials of their requests for “deferred action” with no offer for an appeals process.

“Following public outrage from activists and lawmakers, USCIS announced last week that it would reconsider those 424 denials — but offered little further explanation,” Abigail writes. “Officials from USCIS and U.S. Immigration and Customs Enforcement, the agency that handles deportations, testified Wednesday that the two-year, renewable deferrals, which allowed patients and their families to stay in the country and obtain temporary work authorizations, are no more.”

Migrants who are ill can now ask ICE for a delay of their deportation, and the agency will grant delays up to one year on a case-by-case basis, officials told lawmakers. But Democrats grilled those officials on the lack of clarity around the issue as those officials cited “pending litigation.”

“You can’t tell me why there’s a new policy. You can’t tell me what motivated the new policy. And you can’t tell me what the policy is,” said Rep. Jamie Raskin (D-Md.), chairman of the House Oversight Committee’s civil rights and civil liberties subcommittee. “Is that a correct assessment?”

HEALTH ON THE HILL

— Four Republican senators say Facebook allowed two medical professionals with ties to abortion rights organizations to fact-check the antiabortion group Live Action, even though the social media platform has said fact-checkers can't take positions on the issues they analyze. In a letter sent yesterday to Facebook chief executive Mark Zuckerberg, Sens. Mike Braun (Ind.), Ted Cruz (Tex.), Kevin Cramer (N.D.) and Josh Hawley (Mo.) criticized what they called a “pattern of censorship” and called on Facebook to submit to an external audit.

Live Action was recently blocked from promoting or advertising content on Facebook, after two fact-checkers had given a “false” rating to two videos shared by its president, Lila Rose. Those fact-checkers were Daniel Grossman, who is on the board of NARAL Pro-Choice America Foundation, and Robyn Schickler, a fellow with Physicians for Reproductive Health.

“No reasonable person would describe Grossman or Shickler as neutral or objective when it comes to the issue of abortion, yet Facebook relied on their rating to suppress and censor a pro-life organization with more than 3 million followers,” the letter says. 

— And here are a few more good reads: 

Almost 80% of Americans support efforts in Congress to protect patients from bills that come from doctors or hospitals that were outside their insurance network.
Kaiser Health News
TRUMP TEMPERATURE
Business
President Trump has directed aides to launch a major crackdown on homelessness in California, spurring an effort across multiple government agencies to determine how to deal with sprawling tent camps on the streets of Los Angeles and other cities, officials said.
Jeff Stein, Josh Dawsey and Tracy Jan
STATE SCAN
A new PBS Frontline investigation suggests deaths linked to the Flint water crisis may be massively under-counted.
Kim Bellware
REPRODUCTIVE WARS
MEDICAL MISSIVES
“Doing nothing about America’s gun violence crisis is simply unacceptable,” the heads of 145 companies tell senators in a letter.
New York Times
Drug-resistant germs, including Candida auris, prey on severely ill patients in skilled nursing facilities, a problem sometimes amplified by poor care and low staffing.
New York Times
Health
The product, reportedly purchased outside a normal supply chain, contained hundreds of times the normal amount of the toxin.
Lateshia Beachum
DAYBOOK

Coming Up

  • The House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies holds a hearing on the mental health needs of children in HHS custody on Sept. 18. 
SUGAR RUSH

After mass shooting, El Paso congresswoman calls for Republicans to act on gun legislation: