with Alexandra Ellerbeck

If the Supreme Court strikes down Obamacare in November, insurers could resume discriminating against Americans with preexisting medical conditions just as they did before the law was passed.

Democrats are loudly insisting that this is an especially dangerous prospect in a pandemic, as coronavirus could be considered a pre-existing condition. 

Jesse Ferguson, former spokesperson for the Democratic Congressional Campaign Committee:

Sen. Chris Murphy (D-Conn.):

It's a possibility – but not certain. 

Ruth Bader Ginsburg's death does up the chances the court will toss the Affordable Care Act when it hears a high-profile lawsuit on Nov. 10. The law guaranteed people the ability to buy coverage and required a comprehensive set of benefits in any plan they chose, banning insurers from denying coverage or charging more to people with preexisting conditions such as diabetes or cancer. 

Absent the ACA, states could limit — or not limit — how insurers define a preexisting condition. 

Before the 2010 health-care law, states did this to varying degrees — although discriminating against people with common medical conditions was a widespread practice across the United States. 

States could step in to protect covid-19 patients from discrimination, if the ACA were toppled.

Before Obamacare, the flu largely wasn’t regarded as a preexisting condition. 

But that was before the coronavirus pandemic, which involves a highly infectious and deadly virus that can cause more severe and lasting lung damage than the seasonal flu. And many “long-haul” covid patients who had even mild infections continue to experience often-debilitating symptoms sometimes weeks or months later.  In just eight months, the coronavirus has killed 200,000 people in the United States and is on track to become the nation’s third leading cause of death this year. 

Were the ACA to be done away with, Kaiser Family Foundation senior fellow Karen Pollitz said she could envision a scenario in which individual market insurers might ask whether someone has been infected with the virus before agreeing to sell them a plan. They could hike premiums for people who answered yes, unless states specifically banned that.

“The question could be, ‘Have you had covid in the last three months, the last six months, the last year?’ ” Pollitz said. “Any of those are possible depending on the state and what’s allowed.” 

Many coronavirus patients already have preexisting conditions. 

Obesity and diabetes have been linked to serious covid-19 illness and hospitalization. Both of these conditions were widely considered to be preexisting conditions before the ACA. So even if insurers didn’t specifically rule covid-19 to be a preexisting condition, many recovered patients would likely still face discrimination for other medical conditions.

“They might get you first on other conditions,” Pollitz said. “I don’t know if they would get to covid.”

Before Obamacare, individual market insurers in all but five states kept lists of medical conditions they could use to decline someone coverage or charge them more, according to 2018 research by KFF. These lists commonly included conditions such as arthritis, congestive heart failure, kidney disease, mental disorders and even pregnancy or sleep apnea. 

KFF has estimated that 27 percent of American adults under age 65 have health conditions that would likely have made them uninsurable in the individual market under pre-ACA practices.

“The individual market was a really tough place before the ACA,” Pollitz told me. 

In theory, insurers could also refuse to pay claims related to a body part hurt by covid-19.

This type of practice was common before the ACA. Without it, it’s possible insurers could treat covid-19 patients similarly, given that some people with serious cases are experiencing complications long after their initial illness. 

One study found a majority of hospitalized patients still struggled with symptoms including fatigue, difficulty breathing, joint pain and chest pain 60 days out. Researchers are also looking into whether covid-19 causes long-term cardiac problems.

In a 2001 paper, Pollitz told the stories of several people who were refused coverage for treatment related to their specific ailments. Here are a few examples: 

  • Out of 55 insurance plans sought by Alice, a 24-year-old with hay fever, 46 of them had limits on her benefits based on her health condition. Alice was offered policies that excluded coverage for her hay fever. In three cases, the plans excluded coverage for her entire upper respiratory system.
  • Frank, a 62-year-old who smoked, was overweight and had high blood pressure, was rejected by 33 plans. Out of 27 offers of coverage, three excluded coverage of his circulatory system. Twenty-five of the offers imposed a premium surcharge ranging from 16 percent to 110 percent.
  • Denise, a 48-year-old breast cancer survivor, received 34 offers of coverage, with 18 of them limiting the benefits covered. The policies often excluded coverage for her treated breast, her implant or cancer of any type. Eighteen offers imposed a premium surcharge ranging from 40 percent to 100 percent.

Larry Levitt, senior vice president for the Kaiser Family Foundation:

Expect to hear a lot of Democrats linking the coronavirus with the Obamacare lawsuit.

They’d already been raising alarms about the lawsuit, which could upend President Obama’s signature domestic reform and result in millions of people losing coverage or insurance protections. But claiming covid-19 would be considered a preexisting condition is a new twist on their messaging.

“There’s many, many people in our country — and millions more now because of coronavirus — who have preexisting medical conditions,” House Speaker Nancy Pelosi (D-Calif.) said on ABC’s “This Week.” “The president has not been truthful in what he has said about that. He is in court to crush preexisting conditions as he crushes the Affordable Care Act instead of crushing the virus.”

Ahh, oof and ouch

AHH: The CDC says its revised guidelines on airborne transmission were posted by mistake.

“On Monday morning, the Centers for Disease Control and Prevention edited its Web page describing how the novel coronavirus spreads, removing recently added language saying it was ‘possible’ that it spreads via airborne transmission,” Tim Elfrink, Ben Guarino and Chris Mooney report.

The agency added the information on Friday, saying the virus could spread at distances greater than six feet and emphasizing the importance of indoor air ventilation. But a few days later it removed any reference to airborne transmission apart from a disclaimer saying that it was “updating its recommendations” regarding this mode of transmission.

“Unfortunately an early draft of a revision went up without any technical review,” said Jay Butler, the CDC’s deputy director for infectious disease.

Ajeet Vinayak of Georgetown University Hospital breaks down how covid-19 attacks the lungs of patients, leaving possible long-lasting damage. (John Farrell/The Washington Post)

Many scientists and public health experts say there is growing evidence for airborne transmission. These scientists cite cases such as an indoor choir practice in Washington state in March where one individual is thought to have spread the virus to 52 other people. The World Health Organization recognized the risks of aerosol transmission in July after hundreds of scientists urged the international body to address airborne spread.

“Experts who reviewed the CDC’s Friday post had said the language change had the power to shift policy and public behavior. Some suggested it should drive a major rethinking of public policy — particularly at a time when students in many areas are returning to indoor classrooms,” Elfrink, Guarino and Mooney report.

Andy Slavitt, former head of the Centers for Medicare and Medicaid Services under President Barack Obama:

Nicholas Bagley, health law professor at the University of Michigan:

Last week, the CDC also made another major change to its guidelines, reinstating a recommendation for testing anyone who has close contact with an infected person. 

OOF: An anonymous blogger spreading conspiracy theories about covid-19 is also an NIH employee.

The managing editor of the conservative blog RedState has been attacking public health officials and fueling conspiracy theories under a pseudonym, even as he works by day as a public affairs specialist for the National Institute of Allergy and Infectious Diseases led by Anthony Fauci, the Daily Beast’s Lachlan Markay writes.

Posting under the pseudonym “streiff,” William B. Crews disparaged his colleagues as part of an alleged anti-Trump conspiracy and claimed that public health measures, such as business closures and mask mandates, are merely a ruse to usurp Americans’ rights and undermine the president.

“The entire Wuhan virus scare was nothing more or less than a massive fraud,” Crews wrote in a June post on RedState. “If there were justice we’d send and [sic] few dozen of these fascists to the gallows and gibbet their tarred bodies in chains until they fall apart.”

The virulent online rhetoric “illustrates the extent to which the response to the pandemic has become deeply politicized, even within the agencies at the front lines of fighting it. Crews isnt just a civil servant anonymously disagreeing with his bosses online; he’s actively undermining their work and even suggesting retribution against them,” Markay writes.

The National Institute of Allergy and Infectious Diseases told the Daily Beast in an emailed statement that Crews would “retire” from his position.

The top two liaisons between the White House and the Department of Health and Human Services are also leaving their posts, Politico reported yesterday. 

The Trump administration has removed White House Liaison Emily Newman and her deputy Catherine Granito. They will be shifting full-time to the Voice of America's parent organization, the United States Agency for Global Media, HHS chief of staff Brian Harrison told senior staff on Monday.

“The move leaves Azar's immediate team with more control over the health department's direction in the near term, after a series of developments this year that undermined the secretary's authority, including the surprise installation of top department spokesperson Michael Caputo in April,” Dan Diamond reports. “Caputo, a longtime loyalist to President Donald Trump, began a two-month medical leave last week.”

OUCH: Several consultants to Operation Warp Speed may have unresolved conflicts of interest.

The Select Subcommittee on the Coronavirus Crisis found that four consultants working on President Trump’s coronavirus vaccine initiative — including its leader, Moncef Slaoui — have financial interests in companies producing coronavirus vaccines, treatments or diagnostics.

New documents, provided first to The Health 202, raise questions about Slaoui’s investment in GlaxoSmithKline, a company that is developing a coronavirus vaccine and has been selected by Operation Warp Speed for federal investment.

Slaoui, a former top executive at GlaxoSmithKline, had already come under scrutiny for appearing to duck ethics disclosures. By accepting pay of just $1, he is avoiding the requirement for government employees to disclose financial interests and divest in holdings that conflict with their responsibilities. The Health and Human Services inspector general said in July that he can maintain investments in the drug industry. 

The documents also show Carlo de Notaristefani, William Erhardt and Rachel Harrigan — have financial interests that have not previously been publicly disclosed in connection with Operation Warp Speed.  

Erhardt and Harrigan reported holdings in Pfizer; the government has ordered 100 million doses of its experimental vaccine. Erhardt listed holdings in three companies developing coronavirus testing and treatments. Notaristefani listed a financial interest in Teva Pharmaceuticals, which has been involved in manufacturing hydroxychloroquine.

From the Hill

China never notified the World Health Organization that a new virus had originated in Wuhan.

That’s according to a report from Republicans on the House Foreign Affairs Committee, who investigated China’s efforts to hide the outbreak. The report, headed up by the committee’s ranking Republican, Rep. Michael McCaul (Tex.), details how China responded in the days after coronavirus cases were first reported.

“It is beyond doubt that the [Chinese Communist Party] actively engaged in a cover-up designed to obfuscate data, hide relevant public health information, and suppress doctors and journalists who attempted to warn the world,” the final report says, concluding that senior party leaders knew a pandemic was ongoing weeks before it was announced and yet disregarded international health regulations governing how countries are supposed to handle public health emergencies.

Masking up

The United States is still suffering from a shortage of N95 respirator masks.

Seven months after the first death from covid-19 in the United States, health-care workers across the country find themselves reusing N95 masks for weeks or months at a time. This shortage has left “health-care workers exposed, patients at risk and public health experts flummoxed over a seemingly simple question: Why is the world’s richest country still struggling to meet the demand for an item that once cost around $1 a piece?” Jessica Contrera reports.

In March, as the country faced a shortage of ventilators, the Trump administration used the powers of the Defense Production Act to order General Motors to produce them, but the administration has been far less aggressive is pushing manufacturers to produce N95s and other respirators.

“As the weather cools and the death toll climbs, America’s health-care workers fear that when winter comes, they still won’t have enough respirators,” Contrera writes. The shortage also keeps respirators out of the hands of teachers, grocery store clerks and other essential workers.

N95 masks are manufactured by 3M inside an Aberdeen, S.D., plant. Six months into the pandemic, there continues to be a shortage of these respirators. (3M)

The N95 shortage was a long time coming. The supply of N95s from the national stockpile was never replenished after the 2009 H191 flu pandemic depleted 85 million masks, despite repeated warnings from public health officials. 

This year, HHS did not start ordering N95s from multiple companies until March 21, once the country had already reported 8,000 cases and 85 deaths. Many companies still report that they are wary to ramp up production without guarantees that the government will purchase the respirators.

The Trump administration now claims that the shortage is largely over and that states and the federal government are replenishing their stockpiles. An August survey of 21,500 nurses, however, found that more than two-thirds reused their respirators, and many did so more than the five times recommended by the CDC.

Vaccine update

Medicare would not cover vaccine costs under an emergency use authorization.

“Medicare wouldn’t cover the cost of administering any coronavirus vaccine approved for emergency use, leaving Trump administration officials exploring options to quickly fix the government’s plan to make the vaccine free for all Americans,” the Wall Street Journal’s Stephanie Armour reports.

The coronavirus relief package passed by lawmakers in March was meant to ensure free access to a vaccine, including that people on Medicare won’t have to pay out-of-pocket. But Medicare does not cover drugs approved under emergency use authorizations, a designation that it looks increasingly like the administration may pursue to get a vaccine out as soon as possible.

“Trump administration officials recently came to the conclusion that Medicare’s exclusion of emergency-use drug costs could leave millions of people paying out-of-pocket for vaccines the government intends to make free, according to three people familiar with the matter,” Armour writes.

The Department of Health and Human Services is exploring ways to provide free vaccine coverage for those on Medicare, including through creative regulatory interpretations or even potentially asking Congress to update the language of the Cares Act to include Medicare coverage of a vaccine passed through an emergency use authorization.

Any effort to go back to Congress, however, could open a divisive debate about the vaccine approval.

“Officials are especially concerned about the Medicare restriction because seniors, who are at risk of severe disease from Covid-19, are among the highest-priority groups for getting a vaccine,” Armour writes.

Coronavirus latest

  • The World Health Organization unveiled details about how it will dole out vaccines among more than 150 countries that have agreed to participate in Covax, a U.N.-organized international vaccine-development and sharing effort meant to pool resources and ensure poor countries have access to potential vaccines. The WHO also urged more wealthy countries to join the program, but both China and the United States are still holdouts, Emily Rauhala reports.
  • The director of the Tulsa Health Department in Oklahoma was the target of invective and threats after he sought to postpone Trump’s indoor rally in Tulsa in June over concerns that it would exacerbate the spread of the coronavirus, Joshua Partlow reports.
  • A group of Black doctors has created an expert task force to independently vet decisions by the Food and Drug Administration over coronavirus vaccines and drugs. The move comes as public confidence in the independence of government regulators and health officials has declined. The organizers of the new group see it as a way to potentially shore up public confidence in a vaccine among communities that may be alienated by the medical system, Stats Eric Boodman reports.
  • California had its deadliest spring in two decades this year, according to mortality statistics, which show thousands of excess deaths above what might be suspected and which are not counted in the state’s official coronavirus tally. These deaths, which are almost all concentrated in minority communities, could suggest that official coronavirus statistics are an undercount, Kaiser Health News’s Phillip Reese reports.

Elsewhere in health care

Los Alamos County in New Mexico is the healthiest community in the U.S., according to a U.S. News’s ranking.

The ranking compares more than 3,000 counties on 84 indicators of community health. The analysis, which considers economic, educational and environmental factors, found that the county’s high income, concentration of residents with advanced degrees, and outdoor activities make it one of the healthiest places in America. 

The report also considered coronavirus cases in its analysis. It found that majority-Black counties had covid-19 death rates almost double the national average.

The analysis found that just 23 out of close to 100 majority-Black counties had a coronavirus rate below the national average. Rockdale County, Ga., was one of these counties, a success that officials attribute to an early push to close businesses and institute public health measures ahead of statewide mandates.

Sugar rush