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Health Affairs This Week places listeners at the center of health policy’s proverbial water cooler. Join host Jeff Byers, editors from Health Affairs Publishing, and guests as they discuss health policy’s most pressing news and trends.
Hello, and welcome to Health Affairs This Week. I'm your host, Jeff Byers. We are here for a very special episode today. Forefront is turning 20. And for that, Chris Fleming will be joined by Tim Joseph and Katie Keith to talk about Forefront and what's been going on.
Speaker 1:If you want more Forefront content on audio platforms, Chris and Rob Lott, our very own, will be talking about how, Health Affairs Forefront has evolved over the years on the health policy feed. So please check that out. And with that, I'll turn it over to Chris Fleming. Chris.
Speaker 2:Hey. Thanks, Jeff. And really to help us mark the twentieth anniversary of Health Affairs Forefront, I couldn't be more pleased, couldn't think of two people more appropriate to welcome than Tim Jost and Katie Keith. Tim is the Robert L. Willett Family Professor of Law Emeritus at Washington and Lee, theoretically retired emphasis on theoretical as he continues to be very active in health policy as a speaker and advocate, many other roles.
Speaker 2:Katie directs the Health Policy and Law Initiative at Georgetown where she's also a professor. During the Biden Harris administration, she was the deputy assistant to the president, deputy director of the White House Gender Policy Council. And very importantly, Katie and Tim are the masters of rapid response who have played such a huge role in making Health Affairs Forefront what it is today. Tim started doing rapid response for what became following the ACA and Health Affairs blog in 2009, wrote more than 260... Sorry, 650 articles, almost shortchanged you there, serving until Katie took over in 2018.
Speaker 2:Katie recently crossed the 500 article threshold herself and is still going strong. Tim and Katie, you both so ably chronicle the last twenty years of health policy. I wanna give you a chance to look forward to the next twenty. But before we do that, I do wanna give each of you an opportunity to just briefly discuss your experience writing for Forefront. Working with you both, for me, has been such an honor and a joy, and I'm curious to hear your impressions.
Speaker 3:Well, it was just a wonderful experience working for Forefront, but it was also just drinking out of the fire hose for several years. I remember posting Forefront articles from all over the world, including Khartoum, one trip, and China on another trip, and also canceling a vacation when a new rule in the Supreme Court decision or district court of appeals decision came down on the same day. So I was really relieved when I was able to turn it over to Katie, who, and there couldn't be a better person in the world to turn it over to. She was just so up on things and so competent. So it was a great experience, and I'm glad Katie's doing it now.
Speaker 4:Oh, thank you, Tim. Huge shoes to fill there for sure, but also just one of the biggest gifts of my career. I enjoy this work so much more than I ever thought that I could. And I'm just beyond fortunate to have Tim as the mentor and friend that he is. I'm just so grateful he trusted me with something that was very much his baby and that he poured so much time as you just heard, into making this.
Speaker 4:And of course, it goes without saying it's always wonderful to work, with you, Chris, with Rob, with Dan, with Hugo, with the entire team. I think people don't realize Chris is often up just as late as Tim and I were many years publishing things and making making it work. And, you know, Chris, one of my favorite things about you, although it's probably a bad idea for both of us, is that you never give a word limit, at least not to me, which is probably a mistake. But, you know, here we are. And then I...
Speaker 4:You know, this is maybe less about writing for Forefront, but, I just really can't say enough about the value of of what Forefront brings, I think, to the whole community. I think, certainly as someone who writes for you all, but as a reader, as someone who wants to, you know, stay smart, but also be challenged in how I'm thinking about, you know, the latest news of the day, I think the idea that you all have really built up such a curated body of work that's all in one place, that's free, that is some of the top thinkers. And I really can't think of another place where you have such depth and diversity of health policy topics. So it really is, I think, just such a value to so many people across the country.
Speaker 3:Just one quick, recollection from the Forefront days. I was at a conference some point, and some young man walked up to me and saw my name tag, and he said, you're Tim Jost. You're a rock star. So now Katie is the rock star, and Chris always has been.
Speaker 4:For a very specific group of people. Yes.
Speaker 2:If you all heard me play the violin, which is the only instrument I play very badly, we might choose a non musical metaphor, but I'm very happy to label the two of you rock stars because you certainly are. And as I mentioned with a couple of health policy rock stars here, I really wanna take this opportunity to look forward a little bit, talk about what the health policy discussion might look like over the next twenty years. Katie, you mentioned at one point that you thought in the same way that the democrats used the lessons learned from the demise of the Clinton health plan to pass the Affordable Care Act. Republicans used the lessons of the failure to repeal the ACA in the first Trump term to pass HR one, the so called one big beautiful bill. Can you very briefly explain what you mean by that and then use it to look forward?
Speaker 2:You know, where might the health reform debate go from here? And are there lessons that are being learned now that might shape how the discussion plays out over the course of the coming years?
Speaker 4:No, it's a great question. And I very much welcome Tim Spotts here too as I'm having watched even more high profile successes and failures over all these years in health policy. No, I really think you said it, Chris, but in the way that the Obama administration and Congress learned the lessons, I think just some would be doing too much all at once, taking on all stakeholders. I think saw some shifts around that where you really invited different stakeholders in, you tried to have a more targeted approach, which I think is maybe a point of criticism going forward that the ACA was so targeted and maybe didn't make as big and sweeping changes as people might've wanted, which I think we'll see play out in the future here. But it really did set the stage, I think, for the success of the Affordable Care Act getting passed.
Speaker 4:My perspective is the very high profile failures of repeal and replace in 2017. Tim wrote about all, I think we think of them, maybe one or two of them. I think they tried four or five times, if I remember correctly. And Tim was up each night writing about each one of them. I think folks remember the Senator McCain on the floor, but even they tried one more time after that, for example.
Speaker 4:So I think no obvious lessons that we saw sort of, I think make 2025 and the HR1 provisions possible. It was not called repeal. It was sort of framed as reform. You can't see me, I'm using air quotes reform. We have to reform the program and I'm thinking both Medicaid and the affordable care act to save it.
Speaker 4:Right. They, focused on things like immigration, even though, undocumented people do not qualify for these programs. There was not a focus on sort of gutting the underlying consumer protections in any way, but the policies that we're going to see start to take effect, some of them have already taken effect, but that we'll really see that will have an impact in 2028, focus on the premium tax credits and our sort of imposing paperwork burdens and a lot more red tape, both across the marketplaces and Medicaid that are going to just lead to far fewer people having health coverage. And even though it was not the same as repeal and replace, there are elements when you look at the CBO score of those, that they almost are close to what we would have seen with skinny repeal back in 2017, but it was not sort of viewed as repealing. And so I'm just very worried about a sort of death by a thousand cuts approach.
Speaker 3:One thing that I think we need to remember is that Obama had 60 votes, 60 Democrats in the Senate when we passed the ACA. And they also had a super majority in the House. There were almost 40 Democrats who voted against the ACA the first time around. But they had such a strong majority in the House, they were still able to push through. And I don't think we're gonna see a 60 vote majority in the Senate anytime in my lifetime again.
Speaker 3:And therefore, the Republicans are pretty much limited in what they can do, and the Democrats too, when they take over, to what you can do through Budget Reconciliation Acts, which you can pass with with 51% of the of of the senate. So I think that, know, one can argue as to how big a change the Affordable Care Act made. And Katie is right that it was pretty targeted. But I don't think we're gonna see a major it's going to be very difficult to push through the Senate in particular, a major change in health policy anytime in near future, with as divided as the country is. But, I mean, the BBA shows that you can do a lot of damage through a reconciliation act.
Speaker 3:The other thing too, is that one of the principles of the Affordable Care Act was to ban pre existing condition exclusions. And I really feel that that has become a permanent pillar of our healthcare system. Nobody's going to go back to health status underwriting for most of insurance coverage. But that's another place where they're kind of chipping around the edges with association health plans, which we'll probably see a new rule on soon, short term policies, the growth of Farm Bureau plans, the growth of just scams, like the data marketing partnership. And all of that is going to have some effect on the risk pool.
Speaker 3:I think we worried that with the end of the individual market, individual mandate, the risk pool might collapse, and it didn't. But, you know, keeping the principle of no preexisting exclusions for everybody is an ongoing battle.
Speaker 2:So do you all... You know, when you talk about the difficulty that without that 60 vote margin in the senate, which is probably not gonna happen for either party in the near future, Are you looking then to see... Are you expecting sort of changes around the edges? Tim, like you said, what you could do with the reconciliation packages. Are we looking at more sort of attempts to essentially legislate through regulation?
Speaker 2:Are we looking at maybe more of the action shifting to the states? You know, the states have obviously been active in a lot of areas, price caps and, you know, corporate practice and medicine and various things. You know? So sort of where where do we go from here then in response to that kind of limitation?
Speaker 4:I think where we go from here, you know, the... I think the... My expectation is the next time you have maybe Democrats in control of Congress and a Democratic administration, I think the first things on the list I think would be reversing the impacts of HR1. So reversing the Medicaid policies, reversing the affordable care act policies, all of which you could do in budget reconciliation. I think there will be a big push to extend the enhanced premium tax credits again, listeners of this podcast, I think know, those expired for this year and you saw 22,000,000 people fall off of a bit of a premium cliff and we've seen how much that's affected enrollment.
Speaker 4:So I think there's a pretty obvious place, if you will. I'm not saying that will be simple or easy to do, but I think those will be the initial targets. But I also think folks are very aware that kind of the status quo of what you had for the prior years also was not enough. So I do think there is a lot of, certainly energy and thinking and momentum into not just reversing the cuts of this administration or this most recent Congress, but how do you actually build a better healthcare system that works better for people, that is more affordable, that is more rational and works for patients, is sort of truly patient centered. And you are starting to see ideas emerge.
Speaker 4:The Democrats on the Senate Finance Committee put out a pretty significant request for information. I think it was more than 80 pages long looking for ideas. I think the House is engaging in some similar thinking and trying to work through what is going to be that almost next generation of reform. And then I think once those ideas are... There's more maybe consensus behind what happens next, then it's probably fitting it into the mechanism.
Speaker 4:So is it budget reconciliation? Is it a bigger package? Are there things that a future administration could do? And I think on the, you know, what can a future administration do without new legal authority, you know, is probably something Tim and I've spent most of our time on, on litigation. So I think there will be some constraints there, which maybe we can come back to after the legislative question.
Speaker 4:But I think that that's how I'm thinking about it. It's how do you reversing the things that have done... Been done most recently, but really trying to come up with an agenda that improves on what we had before.
Speaker 3:I really agree with Katie on what we need to do and what might be possible to do. It seems to me that the biggest problem facing us right now is health care costs. And I think, as everybody is saying about the current election is about affordability, but health care affordability is a big part of that. And I am not sure what can be done about that, except that something has to be done about that. One thing is that in the years following the Affordable Care Act, the health care costs continued to grow, but the percentage of GDP which was spent on health care remained pretty much stable.
Speaker 3:And I think there was a real concern that costs would just explode with expanding expanding eligibility. But they didn't, but they have continued to grow, and they will continue to grow. If I could plug a book here quickly, John McDonough's book, Wrong Term, that just came out, really, I think, lays out very well the problems of using public money to finance a private health care system. There's just tremendous inefficiency in the system. And we need to find some way out of that.
Speaker 3:I think there's some across the board consensus that maybe more transparency would help. But beyond that, I mean, I think that at some point, it just becomes unviable to finance a system that is so inefficient, so oriented, increasingly oriented towards profit rather than care, and that somebody's gonna have to come to terms with that.
Speaker 2:Well well, Katie mentioned, in passing the issue of litigation in the courts. And, one of the things I did wanna make sure that we talked about, given that you both are, some of the lead... Two of the leading experts in in health power... Or health law, excuse me, is the... Exactly that, the role of litigation in the courts.
Speaker 2:It's been such a tumultuous time in, you know, administrative law, which has to do with what agencies could do and how courts review agency actions, the demise of Chevron deference, which of course, you know, was the agency or the courts used to defer if the agency had made a reasonable interpretation of a law. Now the courts more often will step in and make their own judgment. The end of what were referred to as nationwide injunctions where a single judge could join a program across the country. You also have of course, you know, the everyday it seems like so called shadow docket, the emergency docket of the Supreme Court gets, you know, bigger and bigger and more decisions come out without the usual full briefing and hearing. So what are your thoughts about sort of how the role of the courts in litigation has changed and what we might expect to see going forward in that area?
Speaker 3:I mean, there were, depending on how you count them, three to five Supreme Court decisions, maybe more, maybe Katie can think of more, challenging the Affordable Care Act. And on the whole, those were wins. We had one huge loss, which was the Medicaid expansion. But over time, the states that refused it became fewer and fewer. There's still, I think, about 10 left.
Speaker 3:But we won overall on the Affordable Care Act, preserving it in the courts. The... I think Katie said the other day, we're applying the lessons we learned in the Affordable Care Act litigation to now sue the steps that are being taken to undermine the Affordable Care Act. And there's been some very successful litigation brought by Democracy Forward. Some of the states trying to block the some of the most dramatic and stupid things the administration has done to try to limit participation in the exchanges and in the Affordable Care Act health care plans.
Speaker 3:And, you know, it's although the universal injunctions are no longer expressly permitted, most of the actions that are being challenged are administrative actions, and so far, it's still possible to block administrative actions under the APA. And as far as the Loperbright decision and its limit on administrative agencies being able to have the final word deference to administrative agencies. You know, the administrative agencies are now trying to cut back, And so maybe that's for the short term, such a bad result. But I'd be interested to hear what Katie says.
Speaker 2:Yeah. Definitely. And and Katie, one of the things that you mentioned that I hope you can touch on, little bit depressing, I guess, you know, you mentioned that sometimes people have thought, well, there's all this litigation and all these challenges to the ACA because people think of it as a partisan bill, but then you have something like the No Surprises Act, which is, you know, one of the the rare nonpartisan actions that we've had recently. And, you know, there was still a tremendous amount of litigation in some of the... Tim was talking about health care costs, some of the key cost control parts of that got stripped because of the of the litigation.
Speaker 2:So I wonder what your thoughts are in this area.
Speaker 4:No. I think that's right. And I think this is still true. I always think of the Affordable Care Act as the most litigated piece of social legislation in history. And Tim, I normally say nine Supreme Court cases, but a third of those are contraception.
Speaker 4:So it sort of depends on how you count them. But again, readers, as listeners know, we had an ACA case up at the Supreme Court last year in Braidwood over preventive services for 150,000,000 people. The challenges sort of continue to come and we continue to keep an eye on all of it. But that to me, it really has been watching that litigation playbook be used against subsequent major health policy advances, both bipartisan and otherwise. So I think the No Surprises Act is a great example of a law that was signed by President Trump and implemented by President Biden and now is being addressed again by the second Trump administration and the amount of kind of industry litigation that we track on my team and that Chris lets us write about for Forefront, it's just overwhelming.
Speaker 4:I think we have something like 60 cases up on our litigation tracker, but there's hundreds behind that that are not all there. We've also seen it on Medicare drug negotiation, for example, and we've watched a lot of litigation over HR1. So there were less successful, but still lawsuits that were brought over the provision to defund abortion providers like Planned Parenthood. We're now watching there's so far been two cases over implementation of Medicaid work requirements. The sort of story keeps going.
Speaker 4:Of my theory of why the courts have become even more important, and don't get me wrong, the courts, and I think Tim would agree, have always been very, very important in health policy. It's not like we're sort of discovering this for the first time. But I think when you have Congress as dysfunctional as it is, you are set up that Congress or the courts are often getting the very last word about things. There's many things that Congress could step in and fix in response to a court decision. And that is just, I think, unfortunately not the Congress we have today and haven't had for quite a while, which really means that sort of whatever the courts say ends up being what goes.
Speaker 2:I was I was chuckling a little bit, at the very end of your comment, Katie, because, you know, there's... You see every so often there's a statutory interpretation decision by a court. And then, you know, a few years later, the same court or another court comes along and says, well, you know, we're gonna make the same decision because congress must have agreed with that interpretation because they could have acted to overturn it. And I'm like, well, have you seen, like you were saying, how dysfunctional congress is? The idea that they could, you know, just like we disagree, we...
Speaker 2:We're gonna overturn it is is kind of comical, but, you know, there's that fiction that's out there. We have just a minute or two left. If any of you has something, that you really wanna add that you can add in about thirty seconds, go ahead.
Speaker 3:Katie, wanna plug your litigation tracker again?
Speaker 4:I'm always happy to. We we did roll out some new features this week that I hope, users will love. But, no, I I think, maybe I would close by saying congratulations to you, Chris, and the whole team, and happy anniversary of twenty year. It really is remarkable. And moving from the vlog to to Forefront and having a full team able to support this work, it just...
Speaker 4:It's really tremendous. So congratulations.
Speaker 2:Well, thank you so much.
Speaker 3:Thanks again for the opportunity to have participated in this great effort.
Speaker 2:Well, and thanks again to to both of you. And, you know, I I can't emphasize how much it's a team effort, not just, you know, with all of our authors, but also with everybody at Health Affairs. I mean, the editors who work on Forefront are maybe the most visible, but you have people like Jeff who, you know, do video abstracts and our our finance folks and our communicate... You know, it's a whole... It really does take a village as someone once said.
Speaker 2:So with that, I think, you know, unfortunately, because of time, we'll have to leave it there. But thanks again to, Katie and Tim. To listeners, Thank you, of course, for for participating and for being here. And, if you like what you hear, please, you know, subscribe and, you know, get more wherever you get your podcasts. And, with that, we're adjourned.