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November 30, 2007


November 30, 2007


Congress Returns to Heavy Workload Session

Congress returns to session next week in what will likely be a frenetic legislative period until this session of Congress comes to a close, probably just before Christmas. While major legislation is pending in several areas, there are a number of health related bills likely to be considered by Congress in the next couple of weeks that have a direct impact on the respiratory, critical care and sleep community.

One such bill that has the entire physician community on edge is Medicare legislation to avert the 10% cut in Medicare physician reimbursement scheduled for 2008. Unless Congress acts, physicians will see a 10% cut in Medicare reimbursements starting January 1, 2008. So far, the House has passed legislation to avert the cut and the Senate is expected to consider its version of the bill next week.

The Medicare bill will likely be a legislative vehicle for a number of health related provisions that will impact the provider community. It is likely that the Senate bill, much like the House passed bill, will include cuts in Medicare reimbursement for oxygen, Medicare managed care payments, and other Medicare cuts. The ATS is hoping there will be some positives in the Senate bill as well, such as legislation to create a national Medicare coverage policy for pulmonary rehabilitation.

Closely related to the Medicare bill is the fate of the State Children’s Health Insurance Program (SCHIP). This legislation has become a political football between Congress and the White House, with Democrats (and many Republicans) seeking an expansion of the popular program to provide health insurance to children in low income families, while the White House objects to the cost. This issue will likely consume a lot of Congressional time and energy.

Also on the docket for the next couple of weeks is the fate of the 11 annual appropriations bills that fund the U.S. federal government. To date, only two of the 12 annual appropriations bills have passed Congress, one of which was vetoed by the President, the other was signed into law. At stake for the research community are funding increases for research programs at the VA, NIH, CDC and other federal research programs. Congressional leaders will have to develop an end game strategy for passing these appropriations bills prior to adjournment.


ATS Join Amicus Brief in Supreme Court Case Against the Tobacco Industry

In November, the ATS joined selected physician organizations in filing an amicus brief in the U.S. Supreme Court case US v. Philip Morris to expand the range of corrective actions that the Department of Justice can take against the tobacco industry for its decades of deceptive business practices. This case has a long and interesting history.

Under the Clinton Administration, the US Department of Justice (DOJ) used the racketeering influenced and corrupt organizations laws – better known as RICO, against the tobacco industry. RICO statues have typically used against organized crime and just recently against groups alleged to support terrorism. Under the Clinton Administration, the DOJ was seeking approximately $280 billion in damages from the tobacco industry. In 2005, the Bush Administration tried to stop the DOJ effort but finally let case move forward, but scaled back the financial damages to $14 billion.

In 2006, Federal court judge Gladys Kessler found the tobacco industry has violated the Racketeering Influence and Corrupt Organization law (RICO) by engaging in a decade long campaign of deceptive practices to sell tobacco products. These violations include: hiding from the public the known health effects of tobacco, deliberately manipulating nicotine content to enhance the addictive powers of tobacco products, and intentionally marketing tobacco products to children.

Before Judge Kessler could issue corrective actions against the tobacco industry, the tobacco industry appealed to the federal appellate court, seeking to limit the range of financial corrective actions that were available to Judge Kessler to invoke against the tobacco industry. The tobacco industry was successful in the appellate decision in significantly limiting the financial remedies available to Judge Kessler.

After the appellate court decisions, Judge Kessler established the following corrective actions against the tobacco industry:

  • Banning the use of “light” mild, low-tar, natural and any other term that implies a health claim
  • Place “corrective statements” in major media outlets
  • Publicly disclose tobacco industry documents
  • Publicly release marketing data for the next 10 years

In her strongly worded opinion against the tobacco industry, Judge Kessler stated she was prevented from issuing other more forceful corrective actions, such as financial fines, by a previous appellate decision of the court regarding this case.

In both court actions, the ATS participated in amicus briefs seeking strong financial and non financial correction actions be taken against the tobacco industry.

The case now has been appealed by DOJ to the US Supreme Court. Under the Bush Administration, the DOJ has little interest in using the RICO provisions against the tobacco industry. However, the Bush Administration is concerned that if the appeals courts precedent of scaling back RICO provision corrective remedies stands, then the DOJ will not be able to use RICO in terrorism cases. So while the tobacco control community and the Bush Administration have significantly differing views on the US v Philip Morris case, they have a shared interest in preserving corrective actions under RICO.

The amicus brief filed by ATS encourages the U.S. Supreme Court to recognize the decades of addiction, disease and death caused by the tobacco industry and allows the Department of Justice to seek financial corrective actions against the tobacco industry including:

  • Significant financial penalties if the tobacco companies continue to market to our children and fail to achieve targets to reduce youth smoking rates.
  • A national public education and counter-marketing campaign to correct more than 50 years of tobacco industry lies and prevent future deception.
  • An independent, court-appointed monitor charged with supervising the implementation of the remedies ordered by the Court

Oral arguments in the US v. Philip Morris case will be heard in the Spring of 2008. A decision is expected in Fall of 2008.


ATS Joins Letter on Animals in Research

This week the ATS joined other medical societies, veterinary medical associations, and advocacy groups on a letter concerning the use of domestic animals, specifically dogs and cats, in biomedical research. The letter was sent in opposition to an amendment to legislation reauthorizing agricultural programs, called the Farm Bill, sponsored by Sen. Akaka (D-HI), that would eliminate the use of non-purpose-bred dogs and cats in biomedical research. Sen. Akaka’s amendment responds to a concern about pet theft, but the Animal Welfare Act and USDA regulations now provide strong protections against this and in recent years there have been virtually no documented cases of pets being stolen for use in medical research.

Researchers have indicated that in certain translational or pre-clinical research there is a need for older, more genetically diverse and larger-sized dogs that animals bred specifically for research purposes do not provide. Without access to more genetically diverse animals, vital research into heart failure, high blood pressure, obesity, breathing disorders, and diseases and conditions could be hampered. The Farm bill will be considered by the Senate within the next 2 weeks. The ATS Washington Office will continue to monitor this issue and alert members if their action is needed to support the use of non-purpose-bred animals for biomedical research.

Points of Contact

Gary Ewart Senior Director, Government Relations
Nuala Moore Senior Legislative Representative
Joe Kirby DC Office Administrator