Sep 6, 2018

Axios Vitals

By Caitlin Owens
Caitlin Owens

Good morning ... USA Today editorial page editor Bill Sternberg has published a difficult and moving piece about losing his son Scott to an opioid overdose and the hard lessons that experience had to offer about the larger addiction crisis.

Worthy of your time.

1 big thing: Ominous signs for the ACA in Texas
Giphy

The Affordable Care Act may soon find itself in legal jeopardy yet again, if the tea leaves from a federal judge's hearing in Texas yesterday are any indication.

The big picture: Most on-the-ground accounts of the hearing say Judge Reed O'Connor seemed open to red states' latest challenge to the health care law, raising the prospect that what was once seen as a long-shot lawsuit could be a more serious threat than many experts had anticipated.

The details: O'Connor's questioning yesterday seemed to suggest that he "may seek to roll back at least some of the consumer protections at the core of the law," the L.A. Times' Noam Levey reports from Fort Worth.

  • "O’Connor returned repeatedly to arguments that architects of the healthcare law made in 2010 and afterward that requiring people to have insurance was crucial to the popular consumer protections in the law," Levey writes.

Between the lines: It's true that the Obama administration argued that the individual mandate and the law's protections for pre-existing conditions were legs of the same stool.

  • Now that Congress has zeroed out the penalty for being uninsured, though, Democrats argue that if Congress wants to design an unbalanced stool, that's its prerogative.
  • But O'Connor "gave only cursory treatment to the baseline question of whether the individual mandate without an accompanying penalty could stand as constitutional" and instead skipped straight ahead to questions about how much more should fall along with it, per Modern Healthcare's Susannah Luthi.

O'Connor even wondered if this might have been Republicans' endgame all along — that they zeroed out the mandate penalty secure in the knowledge that it could reopen the Supreme Court's 2012 decision upholding the mandate.

  • “Why isn’t that the proper intent to be drawn from the 2017 enactment?” O’Connor asked, according to Politico's Paul Demko.

Meanwhile, as expected, Supreme Court nominee Brett Kavanaugh said basically nothing of substance yesterday about this case or anything else related to health care.

2. Bad news for the ACA is bad news for the GOP

O'Connor said yesterday that he expects to rule soon on the initial questions in Texas' lawsuit over the ACA.

That's a gamble for Republican candidates in the midterm elections, especially House incumbents who are already on the hook for years of anti-ACA votes.

  • Democrats want to make this lawsuit, and its challenges to the ACA's protections for people with pre-existing conditions, a centerpiece of a midterms strategy that's focused on health care.
  • If O'Connor indicates before November that he's inclined to strike down the entire law or its most popular consumer protections, it'll be hard to brush off this case as irrelevant or to downplay Democrats' warnings — even though Texas could still lose on appeal.

The bottom line: If you're a Republican trying to dodge attacks that say you would let insurers once again deny coverage for pre-existing conditions, a pre-midterms ruling doing exactly that, in a lawsuit backed by the Trump administration, is not your ideal outcome.

  • Of course it doesn't help that, even more than eight years after the ACA became law, Republicans still don't have a competing plan to ensure that people with pre-existing conditions would be able to access coverage for those conditions.
3. Tech companies talk opioid regulation

My colleagues Caitlin Owens and David McCabe reported on Tuesday that Congress is open to cracking down on opioids sold via the internet. Lo and behold, it came up in yesterday's Senate Intelligence Committee hearing with Facebook and Twitter executives, Caitlin notes.

What they’re saying: Sen. Joe Manchin asked Facebook's Sheryl Sandberg and Twitter's Jack Dorsey about their responsibility for deadly overdoses on drugs obtained through their platforms.

"We passed bills that held you liable and responsible" in other circumstances, Manchin said. "Don't you think we should do the same with opioid drugs?"

  • "We're certainly open to dialogue," Dorsey said.
  • "We'd want to work very closely on how this would be enacted," Sandberg added.
4. Hospital-owned drug company gets a CEO

Martin VanTrieste, a former executive at pharmaceutical firm Amgen, has been named CEO of Civica Rx, the new hospital-owned company that will make 14 generic drugs and start selling them to a third of U.S. hospitals by next year.

  • The not-for-profit Civica Rx said VanTrieste won't draw any salary or health benefits, Axios’ Bob Herman reports.

The big picture: The idea for Civica Rx spawned earlier this year after the founding hospitals were fed up with generic drug companies jacking up prices on products that were in short supply.

  • Civica Rx would not say which hospital-based drugs it will manufacture, but it's reasonable to expect some may be on the FDA's shortage list.
5. Startup aims to match patients with treatment

Bob also takes a look this morning at a new health technology startup called Driver, which wants to connect cancer patients and survivors to treatments, clinical trials and cancer centers across the country.

How it works: A patient downloads the Driver app and gives consent for the company to collect medical records and tumor tissue. The app then finds available cancer treatments or clinical trials plus hospitals where they could have a video conference with an oncologist about next steps and future appointments.

Yes, but: This warrants skepticism. It's an expensive service, so initially it will cater to more affluent people. These costs are unaffordable for most middle- and lower-income people, especially those on Medicare and Medicaid.

There are also questions about how the technology will operate within the U.S. insurance system and whether it would lead to overtreatment.

Caitlin Owens

What we're watching this week: MedPAC public meeting today and Friday.

What's on your agenda? Let me know: baker@axios.com.