The Trump administration wants Medicare for the first time to embrace telemedicine across the country by paying doctors $14 for a five-minute "check-in" phone call with their patients.
But many physicians say the proposed reimbursement will cover a service they already do for free. And the Medicare reimbursement — intended to motivate doctors to communicate with patients outside the office — could have a chilling effect on patients because they would be required to pay a 20 percent cost-sharing charge.
Medicare said the call would be used to help patients determine whether they need to come in for an appointment. But doctors and consultants said the virtual sessions could cover a broad array of services, including monitoring patients starting a new medicine or those trying to manage chronic illnesses, such as diabetes. The Medicare Payment Advisory Commission, which provides guidance to Congress, panned the proposal last month, saying it could lead to excess spending without benefiting patients.
"Direct-to-consumer telehealth services … appear to expand access, but at a potentially significant cost and without evidence of improved quality," the commission's chairman, Dr. Francis Crosson, said in a letter to the Centers for Medicare & Medicaid Services (CMS). "Due to their greater convenience, these services are at risk of misuse by patients or provider."
Congress has shied away from expanding the use of telemedicine in Medicare — even as it has become commonplace among private insurers — because of concerns about higher spending. Budget hawks worry that rather than replace comparatively expensive in-person visits, extra telemedicine billings would add to them.
Lack of coverage — except in rare circumstances — means fewer than 1 percent of the 50 million Medicare beneficiaries use telemedicine services each year.
Federal law forbids Medicare from paying for telemedicine services that replace in-person office visits, except in certain rural areas. That's why CMS called the new benefit a check-in using "virtual" or "communications technology," said Jacob Harper, who specializes in health issues at the law firm Morgan, Lewis & Bockius.
In addition to the check-in call, CMS has proposed starting to pay physicians to review photos that patients text or email to them to evaluate skin and eye problems, as well as and other conditions. It also has proposed paying physicians an unspecified fee for consulting electronically or by phone with other doctors.
"Innovative technology that enables remote services can expand access to care and create more opportunities for patients to access personalized care management as well as connect with their physicians quickly," said CMS Administrator Seema Verma when announcing the proposal.
CMS said it hopes to enact the changes in 2019. Officials will announce their final rule after evaluating public comments on the plan.
Verma and other CMS officials say they believe the change would end up saving Medicare money by reducing unnecessary office visits and catching health problems early, before they become more costly to treat.
But in its detailed proposal, CMS acknowledges the telehealth service will increase Medicare costs. CMS said the telehealth will result in "fewer than 1 million visits in the first year but will eventually result in more than 19 million visits per year, ultimately increasing payments under the [Medicare physician pay schedule] by about 0.2 percent," or eventually about $180 million per year. Because the change must be budget-neutral, CMS is paying for this by decreasing some other Medicare physician payments.
CMS doesn't expect rapid adoption of the telehealth service, partly because doctors can get paid from $35 to $150 for an in-person visit. "Because of the low payment rate relative to that for an office visit, we are assuming that usage of these services will be relatively low," CMS said in its proposal.
The virtual check-in can be conducted by physicians or nurse practitioners or physician assistants working with a doctor.
Only patients who have established relationships with a doctor would be eligible for the service. Doctors also would not be allowed to bill for the check-in service if it stems directly from an in-person visit or is followed by an appointment with the doctor, according to the CMS proposal.
Dr. Michael Munger, a family physician in Overland Park, Kan., and president of the American Academy of Family Physicians, said many doctors routinely check on patients by phone. Still, he applauded the effort to increase physician pay.
"Anytime you can tie payment to what many of us are already doing is good," he said.
Mercy, a large hospital system in St. Louis, has been offering telehealth services even without reimbursement because it helps patients access care and lowers costs in the long run, said Dr. J. Gavin Helton, president of clinical integration at Mercy Virtual.
"We are already on this path, and this will help to continue to grow our programs and make them financially sustainable," he said.
Still, Helton said the "check-in" fee from Medicare won't be enough to motivate providers to start telehealth services.
He said the new reimbursement signals that Medicare wants to pay for services to keep patients well rather than just treat them while they are sick.
Other physicians were more skeptical, particularly while Medicare has also proposed reducing some fees for in-person office visits.
In a letter to CMS, Dr. Amy Messier, a family medicine doctor in Wilmington, N.C., raised concerns about the effect this could have on patients' expenses.
"I worry about implementation of this from the patient perspective now that we are charging patients for this previously free service and they have to pay their portion of the charge," she said.
"Patients will be less likely to engage their physician outside of the office visit and more likely to seek care face-to-face at more expense, when perhaps that visit could have been avoided with a phone call which they will no longer make because it comes with a charge," she said.
Dr. Todd Czartoski, chief executive of telehealth at Providence St. Joseph Health in Renton, Wash., predicts most doctors won't use the proposed telehealth service.
"It's still easier for a doctor to go room to room with patients lined up," he said. "It's a step in the right direction, but I don't think it will open the floodgates for virtual care."
Calvin Brown doesn't have a primary care doctor — and the peripatetic 23-year-old doesn't want one.
Since his graduation last year from the University of San Diego, Brown has held a series of jobs that have taken him to several California cities. "As a young person in a nomadic state," Brown said, he prefers finding a walk-in clinic on the rare occasions when he's sick.
"The whole 'going to the doctor' phenomenon is something that's fading away from our generation," said Brown, who now lives in Daly City outside San Francisco. "It means getting in a car [and] going to a waiting room." In his view, urgent care, which costs him about $40 per visit, is more convenient — "like speed dating. Services are rendered in a quick manner."
Brown's views appear to be shared by many millennials, the 83 million Americans born between 1981 and 1996 who constitute the nation's biggest generation. Their preferences — for convenience, fast service, connectivity and price transparency — are upending the time-honored model of office-based primary care.
Many young adults are turning to a fast-growing constellation of alternatives: retail clinics carved out of drugstores or big-box retail outlets, free-standing urgent care centers that tout evening and weekend hours, and online telemedicine sites that offer virtual visits without having to leave home. Unlike doctors' offices, where charges are often opaque and disclosed only after services are rendered, many clinics and telemedicine sites post their prices.
A national poll of 1,200 randomly selected adults conducted in July by the Kaiser Family Foundation for this story found that 26 percent said they did not have a primary care provider. There was a pronounced difference among age groups: 45 percent of 18- to 29-year-olds had no primary care provider, compared with 28 percent of those 30 to 49, 18 percent of those 50 to 64 and 12 percent age 65 and older. (Kaiser Health News is an editorially independent program of the foundation.)
A 2017 survey by the Employee Benefit Research Institute, a Washington think tank, and Greenwald and Associates yielded similar results: 33 percent of millennials did not have a regular doctor, compared with 15 percent of those age 50 to 64.
"There is a generational shift," said Dr. Ateev Mehrotra, an internist and associate professor in the Department of Health Care Policy at Harvard Medical School. "These trends are more evident among millennials, but not unique to them. I think people's expectations have changed. Convenience [is prized] in almost every aspect of our lives," from shopping to online banking.
So is speed. Younger patients, Mehrotra noted, are unwilling to wait a few days to see a doctor for an acute problem, a situation that used to be routine. "Now," Mehrotra said, "people say, 'That's crazy, why would I wait that long?'"
Until recently, the after-hours alternative to a doctor's office for treatment of a strep throat or other acute problem was a hospital emergency room, which usually meant a long wait and a big bill.
Luring Millennials
For decades, primary care physicians have been the doctors with whom patients had the closest relationship, a bond that can last years. An internist, family physician, geriatrician or general practitioner traditionally served as a trusted adviser who coordinated care, ordered tests, helped sort out treatment options and made referrals to specialists.
But some experts warn that moving away from a one-on-one relationship may be driving up costs and worsening the problem of fragmented or unnecessary care, including the misuse of antibiotics.
A recent report in JAMA Internal Medicine found that nearly half of patients who sought treatment at an urgent care clinic for a cold, the flu or a similar respiratory ailment left with an unnecessary and potentially harmful prescription for antibiotics, compared with 17 percent of those seen in a doctor's office. Antibiotics are useless against viruses and may expose patients to severe side effects with just a single dose.
"I've seen many people who go to five different places to be treated for a UTI [urinary tract infection] who don't have a UTI," said Dr. Janis Orlowski, a nephrologist who is chief health care officer at the Association of American Medical Colleges, or AAMC. "That's where I see the problem of not having some kind of continuous care."
"We all need care that is coordinated and longitudinal," said Dr. Michael Munger, president of the American Academy of Family Physicians, who practices in Overland Park, Kan. "Regardless of how healthy you are, you need someone who knows you." The best time to find that person, Munger and others say, is before a health crisis, not during one.
And that may mean waiting weeks. A 2017 survey by physician search firm Merritt Hawkins found that the average wait time for a new-patient appointment with a primary care doctor in 15 large metropolitan areas is 24 days, up from 18.5 days in 2014.
While wait times for new patients may reflect a shortage of primary care physicians — in the view of the AAMC — or a maldistribution of doctors, as other experts argue, there is no dispute that primary care alternatives have exploded. There are now more than 2,700 retail clinics in the United States, most in the South and Midwest, according to Rand Corp. researchers.
Connecting With Care
To attract and retain patients, especially young adults, primary care practices are embracing new ways of doing business.
Many are hiring additional physicians and nurse practitioners to see patients more quickly. They have rolled out patient portals and other digital tools that enable people to communicate with their doctors and make appointments via their smartphones. Some are exploring the use of video visits.
Mott Blair, a family physician in Wallace, N.C., a rural community 35 miles north of Wilmington, said he and his partners have made changes to accommodate millennials, who make up a third of their practice.
"We do far more messaging and interaction through electronic interface," he said. "I think millennials expect that kind of connectivity." Blair said his practice has also added same-day appointments.
Although walk-in clinics may be fine as an option for some illnesses, few are equipped to provide holistic care, offer knowledgeable referrals to specialists or help patients decide whether they really need, say, knee surgery, he noted. Primary care doctors "treat the whole patient. We're tracking things like: Did you get your mammogram? Flu shot? Pap smear? Eye exam?"
Dr. Nitin Damle, an internist and past president of the American College of Physicians, said that young people develop diabetes, hypertension and other problems "that require more than one visit."
"We know who the best and most appropriate specialists in the area are," said Damle, an associate clinical professor of medicine at Brown University in Providence, R.I. "We know who to go to for asthma, allergies, inflammatory bowel disease."
Marquenttha Purvis, 38, said her primary care doctor was instrumental in helping arrange treatment for her stage 2 breast cancer last year. "It was important because I wouldn't have been able to get the care I needed" without him, said Purvis, who lives in Richmond, Va.
Sometimes the fragmented care that can result from not having a doctor has serious consequences.
Orlowski cites the case of a relative, a 40-year-old corporate executive with excellent medical insurance. The man had always been healthy and didn't think he needed a primary care physician.
"Between treating himself and then going to outpatient clinics," he spent nearly a year battling a sore throat that turned out to be advanced throat cancer, she said.
For patients without symptoms or a chronic condition such as asthma or high blood pressure, a yearly visit to a primary care doctor may not be necessary. Experts no longer recommend the once-sacrosanct annual physical for people of all ages.
"Not all access has to be with you sitting on an exam table," Munger said. "And I may not need to see you more than every three years. But I should be that first point of contact."
Convenience Is Paramount
Caitlin Jozefcyk, 30, a high school history teacher in Sparta, N.J., uses urgent care when she's sick. She dumped her primary care doctor seven years ago because "getting an appointment was so difficult" and he routinely ran 45 minutes behind schedule. During her recent pregnancy, she saw her obstetrician.
Jozefcyk knows she's not building a relationship with a physician — she sees different doctors at the center — but "really likes the convenience" and extended hours.
Digital access is also important to her. "I can make appointments directly through an app, and prescriptions are sent directly to the pharmacy," she said.
After years of going to an urgent care center or, when necessary, an emergency room, Jessica Luoma, a 29-year-old stay-at-home mother in San Francisco, recently decided to find a primary care doctor.
"I'm very healthy, very active," said Luoma, who has been treated for a kidney infection and a miscarriage.
Luoma said her husband pushed her to find a doctor after the insurance offered by his new employer kicked in.
"He's a little more 'safety first' than me," she said. "I figured, 'Why not?' — just in case."
The 'global risk' model is increasingly used by Medicare plans such as Humana and UnitedHealthcare to shift their financial exposure from costly patients, giving doctors' groups more money upfront and control over patient care.
STUART, Fla. — Dr. Christopher Rao jumped out of his office chair. He'd just learned an elderly patient at high risk of falling was resisting his advice to go to an inpatient rehabilitation facility following a hip fracture.
He strode into the exam room where Priscilla Finamore was crying about having to leave her home and husband, Freddy.
"Look, I would feel the same way if I was you and did not want to go to a nursing home, to a strange place," Rao told her in September, holding her hand. "But the reality is, if you slip at home even a little, it could end up in a bad, bad way."
After a few minutes of coaxing, Finamore, 89, relented and agreed to go into rehab.
Keeping patients healthy and out of the hospital is a goal for any physician. For Rao, a family doctor in this retiree-rich city 100 miles north of Miami, it's also a wise financial strategy.
Rao works for WellMed, a physician-management company whose doctors treat more than 350,000 Medicare patients at primary care clinics in Florida and Texas. Instead of being reimbursed for each patient visit, WellMed gets a fixed monthly payment from private Medicare Advantage plans to cover virtually all of their members' health needs, including drugs and physician, hospital, mental health and rehabilitation services.
If they can stay under budget, the physician companies profit. If not, they lose money.
This model — known as "full-risk" or "global risk" — is increasingly used by Medicare plans such as Humana and UnitedHealthcare to shift their financial exposure from costly patients to WellMed and other physician-management companies. It gives the doctors' groups more money upfront and control over patient care.
As a result, they go to extraordinary lengths to keep their members healthy and avoid expensive hospital stays.
WellMed, along with similar fast-growing companies such as Miami-based ChenMed, Boston-based Iora Health and Chicago-based Oak Street Health, say they provide patients significantly more time with their doctors, same-day or next-day appointments and health coaches. These doctors generally work on salary.
ChenMed doctors encourage their Medicare patients to visit their clinic every month — for no charge and with free door-to-door transportation — to stay on top of preventive care and better manage chronic conditions. If patients are not feeling well after-hours, ChenMed even will send a paramedic to their home.
"We can be much more creative in how we meet patient needs," said Iora CEO Rushika Fernandopulle. "By taking risk, we never have to ask … 'Do we get paid for this or not?'"
A Way To 'Provide Less Care'
Some patient advocates, pointing to similar experiments that failed in the 1990s, fear "global risk" could lead doctors to skimp on care — particularly for expensive services such as CT tests and surgical procedures.
"At the end of the day, this is a way to keep costs down and provide less care," said Judith Stein, executive director of the Center for Medicare Advocacy.
Dr. Brant Mittler, a Texas cardiologist and trial attorney who has followed the issue, said Medicare Advantage members should be suspicious.
"Patients don't know that decisions made on their behalf are often financially based. There may be pressure on doctors to cut corners to save money and that may not be in the best interests of a patient's health," he said.
The insurers and physician groups disagree. They said limiting necessary care would only exacerbate a patient's health problems and cost the doctors' group more money.
Noting that Medicare members stay with Humana an average of eight years, Roy Beveridge, the insurer's chief medical officer, said the plan would be unwise to skimp on care because that would eventually leave the company with sicker patients and longer hospitalizations.
"It makes even less sense for physicians at financial risk to skimp on care because patients are typically with their physicians much longer than they are with a health plan," he said.
A study that examined care at ChenMed, published last month in the American Journal of Managed Care, found health costs were 28 percent lower among patients who had more than double the number of typical visits with their primary physician. The study was conducted by researchers at ChenMed and the University of Miami.
To offer more personal care, ChenMed doctors typically see only about a dozen patients per day — about half as many as is usual for a doctor who gets paid for each individual service.
Medicare beneficiaries, who can choose a private health plan during the open-enrollment period that runs from Oct. 15 to Dec. 7, generally have no idea if their health plan has ceded control of their care to these large doctors' groups.
After choosing a Medicare Advantage plan, they generally sign up for a medical group that is part of their health plan's network, often because doctors are close to where they live or because the doctors offer extra benefits such as free transportation to appointments.
Eloy Gonzalez, 71, of Miami, said that before switching to ChenMed a couple of years ago his doctors always seemed to be in a hurry when he saw them. He's happy with his ChenMed physicians.
On a recent visit, he spent nearly 20 minutes with Dr. Juana Sofia Recabarren-Velarde talking about keeping his blood pressure and lung condition under control. She also showed him exercises to manage back and shoulder pain.
"If she thinks she needs to see me once a month to monitor my blood pressure and see if anything else is happening, it's OK with me," said Gonzalez, who pays nothing for the office visits or generic drugs under his Humana Medicare Advantage plan with ChenMed.
A Growth Spurt
Nearly one-third of the 57 million Medicare beneficiaries are covered by private Medicare Advantage plans — an alternative to government-run Medicare — and federal officials have estimated that the proportion will rise to 41 percent over the next decade. The government pays these plans to provide medical services to their members.
The "global risk" system has been used in South Florida and Southern California since the late 1990s and nearly half of Medicare Advantage members in those regions get care in the model. The use has spread further in the past two years as large physician companies have become more common, and about 10 percent of Medicare Advantage plan members across the nation are in them now, health consultants say.
In addition, new information technology allows these groups to better track their patients. With mixed results, Medicare Advantage insurers for years offered doctors bonuses to meet certain quality care standards, such as getting members vaccinated against the flu or controlling diabetes and other chronic diseases.
Under the "global risk" arrangements, the health plans give the physician companies the bulk of their Medicare funding when they take on the mantle of being financially responsible for all patient care.
For the doctors' groups, the arrangement means they get paid a large amount of money upfront for patient care and don't have to worry about billing or having to get insurers to always preapprove treatments.
Because the "global risk" arrangements are designed to reduce plans' costs, they potentially allow the companies to lower premiums and attract more customers, said Mark Fendrick, director of the University of Michigan's Center for Value-Based Insurance Design.
"I see this trend continuing to grow as clinicians will be accountable for the first time for the care they provide," he said.
Historical Lessons
But Ana Gupte, a securities analyst with Leerink Partners in New York, noted providers can also lose money if not successful.
That's what happened in the late 1990s when some physician-management companies such as FPA Medical Management and PhyMatrix took on financial risk from insurers only to later go bankrupt, interrupting care to thousands of patients.
Health insurers say they now trust only doctors' groups that have shown they can handle the financial risk. They also retain varying levels of control. Insurers set benefits, handle member complaints and review which doctors are allowed in its network.
Martin Graf, a partner with consulting firm Oliver Wyman, said the old financial arrangements failed because provider groups did not manage the risks facing their patients.
"Now they know physician groups must be vigilant about their patients — whether they are in the office or not," he said. "Everyone is aware of the failure of the past."
The strategies involve repurposing two obscure and rarely deployed workarounds in patent law. These ideas also are finding traction among some major health industry players.
In the drug pricing battle, progressive lawmakers such as Sen. Bernie Sanders (I-Vt.) and patients' rights activists rarely find themselves in step with the health industry's big players.
But in a twist, these usually at-odds actors are championing similar tactics to tame prescription drug prices.
The strategies involve repurposing two obscure and rarely deployed workarounds in patent law that, in different ways, empower the federal government to take back patents and license them to other companies. The first is known as "march-in rights." The second is generally referred to as Section 1498 because of its location in the U.S. Code.
Sanders has in recent years pointed to these steps as useful tools in the drug-pricing debate.
As an indicator of how high the stakes have become, these ideas also are finding traction among some major health industry players — most notably, two large trade groups that represent health plans and the "middlemen" companies that negotiate drug coverage.
"It used to be the case that everyone played nicely with one another, and now as prices have gone up, the knives have come out," said Jacob Sherkow, a law professor at New York University who focuses on intellectual property and the pharmaceutical industry.
The push for march-in rights gained momentum this past summer, when activists launched a campaign challenging the patent for Truvada, the HIV treatment by Gilead Sciences that has been shown to reduce the risks of contracting HIV when taken daily as a preventive.
Initially, patient advocates focused mainly on shaming insurance companies into providing better coverage of that pill, also known as pre-exposure prophylaxis, or PrEP, because it is taken before someone is exposed to the virus. But they soon found themselves targeting a frustration that insurance happened to share: the drug's list price.
James Krellenstein, co-founder of the PrEP4All Collaboration, an advocacy group, was part of that campaign. Health plans had put barriers in place to limit access to the drug, he said. But they, too, were worried about Truvada's escalating price.
"You can't scale up to a level you need to unless we deal with the pricing problem," he said.
Now, as insurers signal they might adopt an approach similar to that of the campaign, he voiced skepticism. On the one hand, the support could benefit their cause. At the same time, "they have their interests, and that's not the interests of public health," Krellenstein said.
Still, in Washington, the influence of groups like America's Health Insurance Plans (AHIP), which is the largest trade association for health insurers, and the Pharmaceutical Care Management Association (PCMA), which represents those middlemen companies known as pharmacy benefit managers (PBMs), could add political credibility to these long-shot ideas.
President Donald Trump has said curbing prescription drug costs is a high priority. But, as congressional action seems increasingly unlikely, these two approaches offer another possible path forward.
They are "already part of a law that is intact. … An option the administration can take now," said Walid Gellad, director of the Center for Pharmaceutical Policy and Prescribing at the University of Pittsburgh.
AHIP says the Department of Health and Human Services should lean on a federal statute that lets the government take over drug patents and grant them to other manufacturers, as long as it adequately compensates the original patent holder.
Meanwhile, PCMA is pressing the administration to use the "march-in rights" championed by HIV activists. Provided under the 1980 Bayh-Dole Act, they empower the government to rescind a drug's patent and let other companies develop versions of it. This applies only if government funding helped develop a drug, and it can be invoked only in specific circumstances, including a threat to public health or safety.
"Everybody is feeling the heat, and I think that is the reason you're seeing this interest in using the tools that exist," said Amy Kapczynski, professor at Yale Law School who has written extensively about drug patents.
But opposition is strong among drugmakers.
"Policies should spur competition and new innovations to meet patient needs, not disincentivize them such as the use of 1498 and march-in could do," said Priscilla VanDerVeer, a spokeswoman for the Pharmaceutical Researchers and Manufacturers of America, or PhRMA, a trade and lobbying group.
Gilead, which manufactures Truvada, has a similar stance.
"We believe that there is no rationale or precedent for the government to exercise march-in or other [intellectual property] rights related to Truvada for PrEP," said Ryan McKeel, a spokesman for Gilead. The company's other efforts to make the drug "available for health and safety needs," he added, "clearly satisfy" the company's legal requirements.
And the potential for march-in authority is still theoretical. It has never been used, despite at least five petitions to the National Institutes of Health, three of which cited high drug prices.
Section 1498 was used to negotiate lower drug prices in the 1960s and '70s, but has since faded. In 2001, during the nation's anthrax scare, the Department of Health and Human Services threatened to invoke it to procure more of the antibiotic used to treat the deadly bacterial disease, according to contemporaneousreports. Last year, Louisiana's health secretary unsuccessfully tried to use it to ease the toll pricey hepatitis C medications exerted on the state's Medicaid program.
NIH Director Francis Collins remains skeptical, repeatedlysaying that a drug's price doesn't constitute a health or safety concern within the agency's jurisdiction.
HHS Secretary Alex Azar, speaking at a June Senate hearing, described march-in, also known as "compulsory licensing," as a "socialist" approach.
But health pans and other payers, increasingly squeezed by fast-climbing prices, are undeterred — touting this kind of intervention as a "market-based solution."
"The trends of drug prices in this country suggest that we all collectively need to find new approaches — including new approaches that are available under existing law — to try to change this trend," said Mark Hamelburg, AHIP's senior vice president of federal programs.
Kaiser Permanente, the health system and insurance provider, called for leveraging Section 1498 in a public comment submitted to HHS about its strategy to bring down drug prices. In a similar filing, Humana, a major insurer, pointed to "existing law [that] allows for actions around patents," singling out march-in rights.
Humana did not respond to requests for comment. Both PCMA and Kaiser Permanente declined to comment beyond their statements. (Kaiser Health News is not affiliated with Kaiser Permanente.)
Nonetheless, experts say there are serious sticking points.
Neither of these legal provisions would be a sweeping solution. And both require administration buy-in.
"They're only as effective as the government's willingness to pursue them," said Robin Feldman, a law professor at the University of California-Hastings.
Simply taking a patent doesn't bring down prices, either. There are other ways manufacturers gain favorable market positioning for specific drugs, said Rachel Sachs, an associate law professor at Washington University in St. Louis who tracks drug-pricing laws.
And creating an opening for generics is only one step. Another drugmaker would still need to create a competing product, gain approval and make it available. Then, theoretically, market competition can kick in.
Finally, there's no guarantee such savings would benefit consumers, argued Nicholson Price, an assistant professor at the University of Michigan Law School. Insurance plans or PBMs could simply bargain greater discounts on drugs and pocket the money. (AHIP says any savings should be passed on.)
That's the fundamental question, Krellenstein said.
"Is this going to be more armor in the fighting [between payers and drug companies]?" he said. "Or is it actually going to be a dramatic reform that actually results in real changes, that actually makes it easier for Americans to access the medications they need?"
Few if any employers will return to the much more generous coverage of a decade or more ago. But they’re reassessing how much pain workers can take and whether high-deductible plans control costs as advertised.
With workers harder to find and Obamacare's tax on generous coverage postponed, employers are hitting pause on a feature of job-based medical insurance much hated by employees: the high-deductible health plan.
Companies have slowed enrollment in such coverage and, in some cases, reinstated more traditional plans as a strong job market gives workers bargaining power over pay and benefits, according to research from three organizations.
This year, 39 percent of large, corporate employers surveyed by the National Business Group on Health (NBGH) offer high-deductible plans, also called "consumer-directed" coverage, as workers' only choice. For next year, that figure is set to drop to 30 percent.
"That was a surprise, that we saw that big of a retraction," said Brian Marcotte, the group's CEO. "We had a lot of companies add choice back in."
Few if any employers will return to the much more generous coverage of a decade or more ago, benefits experts said. But they're reassessing how much pain workers can take and whether high-deductible plans control costs as advertised.
"It got to the point where employers were worried about the affordability of health care for their employees, especially their lower-paid people," said Beth Umland, director of research for health and benefits at Mercer, a benefits consultancy that also conducted a survey.
The portion of workers in high-deductible, job-based plans peaked at 29 percent two years ago and was unchanged this year, according to new data from the Kaiser Family Foundation. (Kaiser Health News is an editorially independent program of the foundation.)
Deductibles — what consumers pay for health care before insurance kicks in — have increased far faster than wages, even as paycheck deductions for premiums have also soared.
One in 4 covered employees now have a single-person deductible of $2,000 or more, KFF found.
Employers and consultants once claimed patients would become smarter medical consumers if they bore greater expense at the point of care. Those arguments aren't heard much anymore.
Because lots of medical treatment is unplanned, hospitals and doctors proved to be much less "shoppable" than experts predicted. Workers found price-comparison tools hard to use.
High-deductible plans "didn't really do what employers hoped they would do, which is create more sophisticated consumers of health care," Marcotte said. "The health care system is just way too complex."
At the same time, companies have less incentive to pare coverage as Congress has repeatedly postponed the Affordable Care Act's "Cadillac tax" on higher-value plans.
Although deductibles are treading water, total spending on job-based health plans continues to rise much faster than the overall cost of living. That eats into workers' pay in other ways by boosting what they contribute in premiums.
Employer-sponsored group health plans, which insure 150 million Americans — nearly half the country — tend to get less attention than politically charged coverage created by the ACA.
For these employer plans, the cost of family coverage went up 5 percent this year and is expected to rise by a similar amount next year, the research shows.
Insuring one family in a job-based plan now costs on average $19,616 in total premiums, the KFF data show. The American worker pays $5,547 of that in a country where the median household income is more than $61,000.
The KFF survey was published Tuesday; the NBGH data, in August. Mercer has released preliminary results showing similar trends.
The recent cost upticks, driven by specialty drug costs and expensive treatment for diseases such as cancer and kidney failure, are an improvement over the early 2000s, when family-coverage costs were rising by an average 7 percent a year. But they're still nearly double recent rates of inflation and increases in worker pay.
Such growth "is unsustainable for the companies I have been working with," said Brian Ford, a benefits consultant with Lockton Companies, echoing comments made over the decades by experts as health spending has vacuumed up more and more economic resources.
For now at least, many large employers can well afford rising health costs. Earnings for corporations in the S&P 500 have increased by double-digit percentages, driven by federal tax cuts and economic growth. Profit margins are near all-time highs.
But for workers and many smaller businesses, health costs are a heavier burden.
Premiums for family plans have gone up 55 percent in the past decade, twice as fast as worker pay, according to KFF.
Employers' latest cost-control efforts include managing expenses for the most expensive diseases; getting workers to use nurse video-chat services and other types of "telemedicine"; and paying for primary care clinics at work or nearby.
At the "top of the list" for many companies are attempts to manage the most expensive medical claims — cases of hemophilia, terrible accidents, prematurely born infants and other diseases — that increasingly cost as much as $1 million each, Umland said.
Employers point such patients to the highest-quality doctors and hospitals and furnish guides to steer them through the system. Such steps promise to improve results, reduce complications and save money, she said.
On-site clinics cut absenteeism by eliminating the need for employees to drive across town and sit in a waiting room for two hours to get a rash or a sniffle checked or get a vaccine, consultants say.
Almost all large employers offer telemedicine, but hardly any workers use it. Thirty-nine percent of the larger companies covering telemedicine now make it comparatively less expensive for workers to consult doctors and nurses virtually, the KFF survey shows.
It took more than 10 minutes for paramedics to arrive after a housekeeper found a man collapsed on the floor of a bathroom in a Boston Veteran Affairs building.
The paramedics immediately administered naloxone, often known by its brand name Narcan, to successfully reverse the man's opioid overdose. But it takes only a few minutes without oxygen for brain damage to begin.
Pam Bellino, patient safety manager for the Boston VA, read that incident report in December 2015 with alarm. "That was the tipping point for us to say, 'We need to get this naloxone immediately available, without locking it up,'" she said.
The easiest way to do it quickly, Bellino reasoned, would be to add the drug to the automated external defibrillator, or AED, cabinets already in place. Those metal boxes on the walls of VA cafeterias, gyms, warehouses, clinic waiting rooms and some rehab housing were installed to hold equipment for a fast response to heart attacks.
Now the VA, building on the project started in Boston, is moving to add naloxone kits to the AED cabinets in its buildings across the country, an initiative that could become a model for other health care organizations.
Equipping police with nasal spray naloxone is becoming more common across the country, but there has been some resistance to making the drug available in public.
Bellino has heard from critics who say easy access to naloxone gives drug users a false sense of safety. She disagrees.
"Think of this as you would a seat belt or an air bag," she said. "It by no means fixes the problem, but what it does is save a life."
Giving naloxone to someone who hasn't overdosed isn't harmful, but it is a prescription drug. So, Bellino said, the VA had to persuade the accrediting agency, The Joint Commission, to approve guidelines for the AED naloxone project.
The cabinets must be sealed and alarmed so staff can tell if they've been opened. They must be checked daily and refilled when the naloxone kits expire.
The commission didn't agree to let the VA put the words "naloxone" or "Narcan" on the cabinet doors to alert the public that the drug is inside, but did allow the VA to affix the letter "N."
In December, the project will expand nationwide, as VA hospitals across the country will add naloxone to their AED cabinets.
"The overwhelming evidence is that it just saves lives," said Dr. Ryan Vega with the VA's Center for Innovation. "We're hopeful that other health systems take notice and think about doing the same."
Vets have nearly twice the risk of overdose, compared with civilians, said Amy Bohnert, an investigator with the VA Ann Arbor Healthcare System, citing 2005 death data. She said it isn't clear why veterans are more likely to OD, but many do have complex medical conditions.
"Some of that's related to combat exposure," Bohnert said. "They've got mental health treatment needs. They may have injuries that result in them being more likely to be prescribed opioids than your average person. And all of these things can impact their risk of overdose."
A smattering of schools, airports, churches and employers around the country have added naloxone to their AED cabinets.
Some stock other lifesaving tools as well: tourniquets to stop bleeding after a shooting; EpiPens to keep airways open; and even injectors to treat diabetic shock.
Dr. Jeremy Cushman leads a project at the University of Rochester that has placed both tourniquets and naloxone in 80 AED cabinets across that campus as of July.
"This system is already in place," Cushman said. "The question is, how can we leverage it to save more lives?"
Turning AED cabinets into miniature emergency medical stations presents challenges, Cushman said. Medicines can't be left outside during extreme temperatures. They are expensive and expire.
Dr. Scott Weiner, president of the Massachusetts College of Emergency Physicians, said he has dealt with those issues while developing street-level dispensing stations for naloxone.
And then there's the belief among some critics that naloxone enables drug use by offering an assurance of life after an overdose. Weiner said that attitude is waning and, as it does, the public may be more open to other controversial, lifesaving measures.
"Naloxone is kind of the lowest barrier for people to understand, where someone has already overdosed and we're going to give them the antidote," Weiner said. "The leap to giving them needles [through a needle exchange] or allowing them to inject in a safe space, that's just another level of acceptance that people will have to get to."
The Boston VA's Bellino said she hopes that AED manufacturers will start selling cabinets that meet the new hospital accreditation standards. So far, the Boston VA counts 132 lives saved through all three parts of its naloxone project: training high-risk veterans, equipping police and the AED cabinets.
The patenting of a small change in how an existing drug is made or taken by patients is part of a tried-and-true pharmaceutical industry strategy of enveloping products with a series of protective patents.
David Herzberg was alarmed when he heard that Richard Sackler, former chairman of opioid giant Purdue Pharma, was listed as an inventor on a new patent for an opioid addiction treatment.
Patent No. 9861628 is for a fast-dissolving wafer containing buprenorphine, a generic drug that has been around since the 1970s. Herzberg, a historian who focuses on the opioid epidemic and the history of prescription drugs, said he fears the patent could keep prices high and make it more difficult for poor addicts to get treatment.
"It's hard not to have that reaction of, like … these vultures,” said Herzberg, an associate professor at the University of Buffalo.
James Doyle, vice president and general counsel of Rhodes Pharmaceuticals, the Purdue subsidiary that holds the patent, said in an email statement that the company does not have a developed or approved product and "therefore no money has been made from this technology."
"The invention behind the buprenorphine patent in question was developed more than a dozen years ago," he wrote. "If a product is developed under this patent, it will not be commercialized for profit."
Yet, the patenting of a small change in how an existing drug is made or taken by patients is part of a tried-and-true pharmaceutical industry strategy of enveloping products with a series of protective patents.
Drug companies typically have less than 10 years of exclusive rights once a drug hits the marketplace. They can extend their monopolies by layering in secondary patents, using tactics critics call "evergreening" or "product-hopping."
Lisa Larrimore Ouellette, a patent law expert at Stanford University, said the pharmaceutical industry gets a greater financial return from its patent strategy than that of any other industry.
AztraZeneca in 2001 famously fended off generic versions of its blockbuster heartburn medicine Prilosec by patenting a tweaked version of the drug and calling it Nexium. When Abbott Laboratories faced multiple generic lawsuits over its big moneymaker Tricor, a decades-old cholesterol drug, it lowered the dosage and changed it from a tablet to a capsule to win a new patent.
And Forest Laboratories stopped selling its Alzheimer's disease drug Namenda in 2014 after reformulating and patenting Namenda XR to be taken once a day instead of twice.
Another common strategy is to create what Food and Drug Administration Commissioner Scott Gottlieb calls "patent thickets," claiming multiple patents for a single drug to build protection from competitors. AbbVie's rheumatoid arthritis drug Humira has gained more than 100 patents, for example.
The U.S. Patent and Trademark Office awards patents when an innovation meets the minimum threshold of being new and non-obvious. Secondary patents are routinely granted to established drugs when an improvement is made, such as making it a once-a-day pill instead of twice a day, said Kristina Acri, an economist and international intellectual property expert at the Fraser Institute and Colorado College.
"Is there a better way? Maybe, but that's not what we're doing," Acri said.
The controversial patent that Sackler and five co-inventors obtained is widely known as a "continuation patent." (The original patent application for the wafer was filed in August 2007.)
Continuation patents do not necessarily extend the patent life of a drug, but they can have other uses. In 2016, Rhodes filed a lawsuit against Indivior alleging patent infringement.
Indivior, formerly part of Reckitt Benckiser, sells a film version of the popular addiction treatment drug Suboxone that is placed under the tongue — an oral medicine similar to what Rhodes has patented. Indivior's comes in a lime flavor.
Indivior's film, which federal regulators approved in 2010, dominates the market with a 54 percent average market share, according to the company's most recent financial report. And the company has vigorously fought rivals, including filing lawsuits against firms such as Teva Pharmaceutical Industries, which sought approval to manufacture generic versions. Indivior declined to comment.
The Rhodes Pharmaceuticals version would be a wafer that melts quickly in the mouth. The inventors list potential flavors including mint, raspberry, licorice, orange and caramel, according to the patent.
For opioid historian Herzberg, the patent battles between companies like Rhodes and Indivior are "absolute madness."
Decisions on what is available on the market to treat addicts should be based on what is the best way to treat the people who have the problem, he said.
Patent battles, Herzberg said, are "not how you want drug policy getting made."
Attempts to change the patent system have intensified over the past decade as prices of prescription drugs continue to climb.
In 2011, President Barack Obama signed the America Invents Act, which included the creation of the Patent Trial and Appeal Board. The PTAB is an alternative to using the cumbersome U.S. court system to challenge weak patents. Generic drug manufacturers have used the board's "inter partes review" process and overturned 43 percent of the patents they challenged, according to recent research.
Critics of the administrative process, including the pharmaceutical industry trade group PhRMA, said it creates "significant business uncertainty for biopharmaceutical companies." Often companies have to defend their products twice — both in the courts as well as before the PTAB, said Nicole Longo, PhRMA's director of public affairs.
Drug giant Allergan attempted to overcome the PTAB's review process by arguing that the patent couldn't be challenged at the review board because they sold the patent to the St. Regis Mohawk Tribe, which had sovereign immunity. A federal appeals court ruled this summer that Allergan could not shield its patents from the PTAB review this way.
This year, several members of Congress proposed bills that would unwind or limit changes made by the America Invents Act, though nothing is likely to happen before the midterm elections. The STRONGER Patents Act, introduced in both the House and Senate, would weaken the PTAB board by aligning its claims standards with what has been established by court rulings.
Medicare Advantage plans, which now enroll more than 1 in 3 seniors nationwide, have faced growing government scrutiny in recent years over their billing practices.
One of the nation's largest dialysis providers will pay $270 million to settle a whistleblower's allegation that it helped Medicare Advantage insurance plans cheat the government for several years.
The settlement by HealthCare Partners Holdings LLC, part of giant dialysis company DaVita Inc., is believed to be the largest to date involving allegations that some Medicare Advantage plans exaggerate how sick their patients are to inflate government payments. DaVita, which is headquartered in El Segundo, Calif., did not admit fault.
"This settlement demonstrates our tireless commitment to rooting out fraud that drains too many taxpayer dollars from public health programs like Medicare," said U.S. Attorney Nick Hanna in announcing the settlement Monday.
Medicare Advantage plans, which now enroll more than 1 in 3 seniors nationwide, have faced growing government scrutiny in recent years over their billing practices. At least a half-dozen whistleblowers have filed lawsuits accusing the insurers of boosting payments by overstating how sick patients are. In May 2017, two Florida Medicare Advantage insurers agreed to pay nearly $32 million to settle a similar lawsuit.
The DaVita settlement cites improper medical coding by HealthCare Partners from early 2007 through the end of 2014. The company, according to the settlement agreement, submitted "unsupported" diagnostic codes that allowed the health plans to receive higher payments than they were due. Officials did not identify the health plans that overcharged as a result.
One such "unsupported" code was for a spinal condition known as spinal enthesopathy that was improperly diagnosed in patients in Florida, Nevada and California from Nov. 1, 2011, to Dec. 31, 2014, according to the settlement. The agreement did not say how much health plans took in from the unsupported codes.
The company also contracted with a Nevada firm from 2010 through January 2016 that sent health care providers to visit patients in their homes, a controversial practice that critics have long held is done largely to inflate Medicare payments. These house calls also generated "unsupported or undocumented" diagnostic codes, according to the settlement.
Officials said that DaVita disclosed the practices to the government. It acquired HealthCare Partners, a large California-based doctors' group, in 2012. They said the government agreed to a "favorable resolution" of the allegations payment because of the self-disclosure.
In a statement, DaVita said the settlement "reflects close cooperation with the government to address practices largely originating with HealthCare Partners." DaVita said the settlement will be paid with escrow funds set aside by the former owners.
"This case involved illegal conduct in which patients' medical conditions were improperly reported and were not corrected after further review — all for the purpose of boosting the bottom line," reads the government's statement.
The settlement also resolves allegations made by whistleblower James Swoben that HealthCare Partners knew that many of the diagnostic codes were unsupported, but failed to report them. The company reported only cases in which it deserved higher reimbursement, while ignoring codes that would slash payments, a practice known as "one-way" chart reviews.
Swoben, a former employee of a company that did business with DaVita, will receive just over $10 million for the settlement of the "one-way" allegations, under the federal False Claims Act, which rewards whistleblowers who expose fraud.
Advocates for importation of cheaper drugs raised a red flag, noting that policies are not permanent and could be changed at any time absent legislation.
WASHINGTON — The final version of the massive opioid bill Congress released Wednesday would grant the Food and Drug Administration new powers to crack down on drug imports, but it also includes a provision — nearly killed in the Senate — to shield people who are just trying to buy cheaper, needed prescription medication from other countries.
Broadly, the bill seeks to enlist the FDA in combating the opioid crisis by mandating that the agency take steps to accelerate development of non-opioid painkillers and to limit the supplies of the drugs, both illegal and legitimate, that claimed the lives of more than 49,000 people last year.
Among those steps, the bill expands the FDA's power to "debar" people "from importing or offering for import into the United States a drug" if they are violating any of a number of regulations, including importing "mislabeled" medications, which includes any from overseas.
In the original House version of the bill, there was also a provision that defined those importers to exclude regular people who were importing personal prescriptions from foreign countries. That definition had been cut without explanation from the Senate's version of the bill.
Congressional staffers who spoke on background to describe internal negotiations said the senators eliminated the protection because they believed it was unnecessary. The FDA already has discretion to look the other way on personal imports and told lawmakers it has no intention of changing the policy, staffers said.
Still, advocates for importation of cheaper drugs raised a red flag, noting that policies are not permanent and could be changed at any time absent legislation.
"I believe pharma lobbyists tried to piggyback language onto this bill to give FDA greater authority to stop importation of lower-cost, non-controlled medicines — ones having nothing to do with the opioid crisis, whether wholesale or personal," said Gabriel Levitt, the president of PharmacyChecker.com, which serves as a clearinghouse for people trying to buy prescriptions from regulated foreign pharmacies. "If that’s the case, then they did not get everything they wanted."
PhRMA, the lobbying arm of the pharmaceutical industry, could not immediately respond to questions about the shifts in the bill, but praised the overall goal of the broader measure.
"We applaud Congress for producing bipartisan, bicameral legislation that is a comprehensive approach to combating the opioid addiction crisis," spokeswoman Priscilla VanderVeer said in a statement. "We look forward to the final legislation moving swiftly through the House and Senate and then on to the President’s desk to be signed into law."
Indeed, the definition appears to have been added back to help forestall any controversy that might have interfered with swift passage of a measure that lawmakers hope to tout for the rest of campaign season. The bill is expected to be passed by the House this week and the Senate next week.
While lawmakers who at first removed the language may have seen it as unnecessary, advocates saw it, if not as a major victory, at least as a significant step in recognizing the legitimacy of importing medication from places where it is less expensive.
"That this language was put back in the bill is very helpful because now personal drug importation has greater recognition under law as different from illegal wholesale importation and worthy of protection," said Levitt. "For those people who rely on lower-cost personal imports from pharmacies in Canada and other countries, this is very good."
Millions of Americans every year seek prescriptions from overseas and Canada. Many millions more don't take or thin out their prescribed medications, often because of costs. According to the Centers for Disease Control and Prevention, almost 8 percent of Americans do not take their medication as prescribed, and more than 15 percent seek cheaper alternatives from their doctor.
The consequences of non-adherence are on a par with the opioid crisis. The failure of people to take medication properly kills about 125,000 every year and costs the health care system between $100 billion and $289 billion, according to studies.
This will be the first major election since Republicans tore up a deal brokered with Democrats roughly two decades ago not to challenge each other's incumbents in attorney general races.
For years, congressional Republicans have vowed to repeal the Affordable Care Act. Now, in a case sending shock waves through midterm election campaigns, Republican attorneys general across the country may be poised to make good on that promise.
The case, Texas v. United States, reveals just how high the stakes are for health care in this year's attorney general races, elections that rarely receive much attention but have the power to reverberate through the lives of Americans.
"It just shows that nothing is safe," said Xavier Becerra, California's attorney general, who is leading 16 states and the District of Columbia in defending the ACA in the case.
Both parties expect record-breaking fundraising for this year's 30 contested elections for state attorneys general. Democrats aim to translate public outrage over the threat to the ACA into the votes needed to seize a handful of posts currently held by Republicans.
This will be the first major election since Republicans tore up a deal brokered with Democrats roughly two decades ago not to challenge each other's incumbents in attorney general races. That gentlemen's agreement acknowledged the need for attorneys general from both parties to collaborate on investigations and lawsuits.
But some of the same partisan forces that have embittered Capitol Hill have spilled into these contests. With Republicans in control of the executive and legislative branches — and close to staking their claim on the Supreme Court — Democratic attorneys general are seen as a check on Trump administration policies. Similarly, their Republican counterparts frequently took the Obama administration to court.
That pressure is likely to increase should congressional Democrats fail to win control of at least one chamber of Congress in November.
Raphael Sonenshein, the executive director of California State University's Pat Brown Institute for Public Affairs in Los Angeles, compared the politics invigorating state attorneys general to a bar brawl.
"Two people have a fight, and then it spills out into the street, and 20 people join in," he said. "Everybody gets off the bench and joins the fight."
A banner on the Democratic Attorneys General Association's website captures their mindset, while states are busy challenging the Trump administration on issues like sanctuary cities and family separations at the border: "This office has never been more important."
Former Vice President Joe Biden recently endorsed six attorney general candidates in races Democrats think they can win, including Ohio and Wisconsin, and the association plans to raise a record-breaking $15 million for November's elections, said Lizzie Ulmer, a spokeswoman for the group.
By mid-June, the Republican Attorneys General Association had raised $26.6 million, continuing to break its fundraising records.
Of this year's 30 contested attorney general races, 18 posts are held by Republicans and 12 are held by Democrats. (Another five are in play this year, but those posts are appointed by the governor or state lawmakers.)
Unlike in Congress, there is no inherent advantage to one party claiming the majority of attorneys general posts. It takes just one attorney general to file a lawsuit.
But Democratic attorneys general see themselves as a firewall against an administration and their Republican counterparts dead set on revoking many federal protections. In that arena, every lawyer counts.
That is especially the case with health care, where fights over issues like access to abortion have multiplied since President Donald Trump took office, with others liable to end up in the courts at any time.
Earlier this month, a federal judge heard arguments in Texas v. United States on the constitutionality of the individual mandate, the ACA's requirement that all Americans obtain health insurance or pay a penalty.
Citing the law passed late last year that eliminated the penalty, the plaintiffs — a Texas-led coalition of 20 states and two individuals — argued the individual mandate was now unconstitutional. By extension, so was the rest of the ACA, they said. They asked for a preliminary injunction that could halt the sweeping ACA in its tracks — including popular provisions such as protections for people with preexisting conditions.
Ken Paxton, the attorney general of Texas, has defended his decision to challenge protections that have broad support, including among Republicans, saying he has a duty to fight laws that harm Texans and defy the U.S. Constitution.
"The least compassionate thing we could do for those with preexisting health problems is to take away their access to high-quality care from doctors of their own choosing and place them entirely at the mercy of the federal government," Matt Welch, Paxton's campaign spokesman, said in a statement.
But the idea that insurers would no longer have to cover those with preexisting conditions has proven explosive, offering Democrats a powerful rallying cry beyond even attorney general races. In Missouri and West Virginia, states that Trump won in 2016 but are represented by Democratic senators, the issue has followed the Republican attorneys general — Missouri's Josh Hawley and West Virginia's Patrick Morrisey — as they run for Senate.
"We're wasting millions and millions of dollars of taxpayer money trying to take away preexisting condition protections not just for all Texans but all Americans," said Justin Nelson, Paxton's Democratic challenger, who said he would withdraw Texas from the case should he win his long-shot bid.
In Wisconsin, the Republican attorney general, Brad Schimel, has also taken a leading role in Texas v. United States, as well as a 2016 challenge to a landmark Obama administration rule banning discrimination in health care based on a patient's gender identity, among other cases.
This year, Schimel has drawn a formidable Democratic challenger, Josh Kaul. He's a former assistant U.S. attorney who prosecuted federal drug crimes and has promised to focus on the state's backlog of untested rape kits and take a more aggressive approach to the opioid epidemic. "We're not going to beat that without ensuring our efforts are targeting large-scale drug traffickers," he said.
Experts caution a changing of the guard would not spell the end of a big case like Texas v. United States. For instance, even if Paxton were to defy expectations and lose, Texas' legal and financial backing for the case could easily be picked up by another state.
However, the message voters would send by electing a Democratic attorney general in Texas — where no Democrat has won statewide office since 1994 — could have profound implications for Republican morale.
"Without Ken Paxton leading the charge, many Republicans may soften their opposition to Obamacare," said Brandon Rottinghaus, a political science professor at the University of Houston.