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Lawyer Fees Draw Scrutiny as Camp Lejeune Claims Stack Up

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by Michelle Andrews
Wed, 17 May 2023 09:00:00 +0000

David and Adair Keller started their married life together in 1977 at Camp Lejeune, a military training base on the Atlantic Coast in Jacksonville, North Carolina. David was a Marine Corps field artillery officer then, and they lived together on the base for about six months.

But that sojourn had an outsize impact on their lives.

Forty years later, in January 2018, Adair was diagnosed with acute myeloid leukemia. She died six months later at age 68. There's a her illness was caused by toxic chemicals that seeped into the military families at the base drank, cooked with, and washed with for decades.

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When the PACT Act passed last August, David asked a neighbor who worked at a personal injury law firm in Greenville, South Carolina, if he thought he might have a case. Now Keller is filing a wrongful death claim against the federal under a section of that measure that allows veterans, their family members, and others who spent at least 30 days at Camp Lejeune between Aug. 1, 1953, and the end of 1987 to seek damages against the government for harm caused by exposure to the toxic water.

The Camp Lejeune Justice Act didn't attract the spotlight as the aspects of PACT that deal with the harms soldiers experienced from burn pit fumes overseas did. But for veterans who served at this North Carolina post, it is the realization of a decades-long effort to hold the government accountable.

As cases begin to proceed through the legal system, some veterans' advocates worry that families who have already suffered from toxic exposure may get shortchanged by a process that's supposed to them with a measure of closure and financial relief. They support limiting lawyers' fees, some of which may exceed half of a veteran's award.

The government estimates as many as a million people were exposed to Camp Lejeune's contaminated water during the 34-year period covered by the law. Personal injury lawyers have taken notice. In recent months, TV ads to drum up business have been impossible to ignore: “If you or a loved one were stationed at Camp Lejeune between 1953 and 1987 and developed cancer, call now. You may be entitled to significant compensation.”

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During the year that ended in March, TV ads soliciting Camp Lejeune claims reached an estimated $123 million, according to X Ante, a company that tracks mass tort litigation advertising. Camp Lejeune TV ads currently rank third among the top targets for mass tort claims since 2012, behind only asbestos and mesothelioma ($619 million) and Roundup weed killer ($132 million).

“The attorneys have calculated out that they stand to make a pot of money,” said Autrey James, chairman of the American Legion's Veterans Affairs & Rehabilitation Commission. “We need Congress to put caps on how much these attorneys can charge.”

For Keller, a 73-year-old former workers' compensation lawyer, it's a matter of accountability. Because of his experience, he came out of retirement last year to represent Camp Lejeune victims. He is now working part time at the Greenville law firm he spoke with originally and that now represents his late wife. It currently has roughly 65 Camp Lejeune cases.

Under the law, veterans must first file an administrative claim with the Judge Advocate General of the Navy's Tort Claims Unit. If, after six months, the Navy hasn't settled the claim, or if it denies the claim, veterans can file suit in the U.S. District Court for the Eastern District of North Carolina.

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So far, approximately 23,000 claims have been filed with the Navy, none of which have been fully adjudicated, said Patricia Babb, a spokesperson for the Judge Advocate General's office.

This legal remedy has been a long time coming. In the early 1980s, the Marine Corps learned that three of Camp Lejeune's water distribution systems were contaminated with industrial chemicals that had seeped into the water from leaking underground storage tanks, industrial spills, and waste disposal sites. The Corps shut them down in the mid-1980s and the area was declared a hazardous waste site in 1989 under the Environmental Protection Agency's Superfund law.

Federal studies later showed that toxic chemicals in the water — benzene, vinyl chloride, and TCE, among others — were present at levels that could have caused a range of cancers and other serious illnesses. In 2012, after an intense lobbying campaign by veterans, Congress passed a law that gave veterans and their families free medical care if they got sick with any of more than a dozen diseases associated with the toxic water.

But thousands of veterans who felt the Navy had stonewalled and delayed addressing the contamination filed civil suits seeking damages. In 2019, the federal government denied all the claims, citing state and federal statutes that shielded the government.

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The Camp Lejeune Justice Act opened a two-year window for veterans and their families to pursue cases against the federal government.

And Liz Hartman, commander of American Legion Post 539 in nearby New Bern, now sees new reason for alarm. Some veterans are signing contingency fee contracts in which they agree to pay lawyers representing them 40% to 60% of any money they , Hartman said.

“Many of these people are elderly and very vulnerable, and they're being preyed upon,” she said.

Personal injury lawyers generally work on a contingency basis. If they win the case, they receive a portion of the award, often one-third. If they lose, they get nothing. The firm Keller is working with charges 40% for Camp Lejeune cases.

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If anything, fees for the Camp Lejeune cases should be lower than usual, not higher, said Matt Webb, senior vice president for legal reform policy at the U.S. Chamber of Commerce Institute for Legal Reform.

“The PACT Act changed the burden of proof and made it so much easier for claimants to win their cases,” he said. Under the law, the evidence must show that the exposure was as likely as not to have caused the harm, rather than to prove that there's a greater than 50% chance that the claim is true, called a “preponderance” standard.

In addition, the law requires that any award a veteran receives be offset by any amount they received in a disability payment or health benefit related to their condition. This could substantially reduce the amount of their award.

Veterans “could end up owing money,” Webb said. “I'm not saying it's going to happen, but particularly if a lawyer is taking a huge chunk in fees, it could happen.”

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Trial lawyers say a marginally lower burden of proof doesn't mean the cases will be easy to win.

It's a new law with no case law or judicial opinions to refer to, said Mike Cox, a Livonia, Michigan, lawyer and former Marine infantryman who was stationed at Camp Lejeune in the early 1980s. He's now representing more than 200 veterans in such cases.

Many of the diseases and conditions people developed are not among those the government acknowledges may be linked to the contaminated water, Cox said. Even for veterans whose illnesses are recognized by the government, lawyers will have to show where they were based, what kind of cancer they have, and their level of toxic exposure, he said. His fee for representing these veterans is 33% of any award they receive.

In addition to proving they were stationed at Camp Lejeune during the years covered by the law, “the claimant also must demonstrate to the Navy he/she is suffering from an injury that is related to the exposure to (or ingestion of) contaminated water,” said Babb, the Judge Advocate General spokesperson.

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With stories circulating of attorney contingency fees that could potentially eat up more than half of veterans' awards, some lawmakers have stepped in.

Under a bill proposed by Reps. Jerrold Nadler (D-N.Y.) and Mark Takano (D-Calif.), Camp Lejeune attorney fees would be capped at 20% in cases settled as administrative claims and 33.3% in those filed as civil lawsuits in court.

Another House proposal, introduced by Reps. Darrell Issa (R-Calif.) and Mike Bost (R-Ill.), is identical to one introduced in the Senate by Sen. Dan Sullivan (R-Alaska), which would cap fees at 12% and 17% under similar circumstances.

According to David Keller, based on his conversations with other lawyers, “nobody is objecting to something that is reasonable,” such as caps at 20% and 33%.

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Many of Keller's clients are older who are really sick and probably won't long, he said. Some tell him they're reluctant to sue the government.

“What I say to them is, ‘When we signed the contract with Uncle Sam, we gave Uncle Sam a blank check for our arms, our legs, and maybe even our lives. But we didn't sign a blank check to get a serious disease from contaminated water,' either them or their spouses or .”

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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By: Michelle Andrews
Title: Lawyer Fees Draw Scrutiny as Camp Lejeune Claims Stack Up
Sourced From: kffhealthnews.org/news/article/camp-lejeune-claims-lawyer-fees-veterans-health/
Published Date: Wed, 17 May 2023 09:00:00 +0000

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Stranded in the ER, Seniors Await Hospital Care and Suffer Avoidable Harm

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Judith Graham
Mon, 06 May 2024 09:00:00 +0000

Every day, the scene plays out in hospitals across America: Older and women lie on gurneys in emergency room corridors moaning or suffering silently as harried medical staff attend to crises.

Even when physicians determine these patients need to be admitted to the hospital, they often wait for hours — sometimes more than a day — in the ER in pain and discomfort, not getting enough food or , not moving around, not being helped to the bathroom, and not getting the kind of care doctors deem necessary.

“You walk through ER hallways, and they're lined from end to end with patients on stretchers in various states of distress calling out for , a number of older patients,” said Hashem Zikry, an emergency medicine physician at UCLA .

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Physicians who staff emergency rooms say this problem, known as ER boarding, is as bad as it's ever been — even worse than during the first years of the pandemic, when hospitals filled with desperately ill patients.

While boarding can happen to all ER patients, adults 65 and older, who account for nearly 20% of ER visits, are especially vulnerable during long waits for care. Also, seniors may encounter boarding more often than other patients. The best estimates I could find, published in 2019, before the covid-19 pandemic, suggest that 10% of patients were boarded in ERs before receiving hospital care. About 30% to 50% of these patients were older adults.

“It's a public health crisis,” said Aisha Terry, an associate professor of emergency medicine at George Washington University School of Medicine and Health Sciences and the president of the board of the American College of Emergency Physicians, which sponsored a summit on boarding in September.

What's going on? I spoke to almost a dozen doctors and researchers who described the chaotic situation in ERs. They told me staff shortages in hospitals, which affect the number of beds available, are contributing to the crisis. Also, they explained, hospital administrators are setting aside more beds for patients undergoing lucrative surgeries and other procedures, contributing to bottlenecks in ERs and leaving more patients in limbo.

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Then, there's high demand for hospital services, fueled in part by the aging of the U.S. population, and backlogs in discharging patients because of growing problems securing home health care and nursing home care, according to Arjun Venkatesh, chair of emergency medicine at the Yale School of Medicine.

The impact of long ER waits on seniors who are frail, with multiple medical issues, is especially serious. Confined to stretchers, gurneys, or even hard chairs, often without dependable aid from nurses, they're at risk of losing strength, forgoing essential medications, and experiencing complications such as delirium, according to Saket Saxena, a co-director of the geriatric emergency department at the Cleveland Clinic.

When these patients finally secure a hospital bed, their stays are longer and medical complications more common. And new research finds that the risk of dying in the hospital is significantly higher for older adults when they stay in ERs overnight, as is the risk of adverse events such as falls, infections, bleeding, heart attacks, strokes, and bedsores.

Ellen Danto-Nocton, a geriatrician in Milwaukee, was deeply concerned when an 88-year-old relative with “strokelike symptoms” spent two days in the ER a few years ago. Delirious, immobile, and unable to sleep as alarms outside his bed rang nonstop, the older man spiraled downward before he was moved to a hospital room. “He really needed to be in a less chaotic ,” Danto-Nocton said.

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Several weeks ago, Zikry of UCLA Health helped care for a 70-year-old woman who'd fallen and broken her hip while attending a basketball game. “She was in a corner of our ER for about 16 hours in an immense amount of pain that was very difficult to treat adequately,” he said. ERs are designed to handle crises and stabilize patients, not to “take care of patients who we've already decided need to be admitted to the hospital,” he said.

How common is ER boarding and where is it most acute? No one knows, because hospitals aren't required to data about boarding publicly. The Centers for Medicare & Medicaid Services retired a measure of boarding in 2021. New national measures of emergency care capacity have been proposed but not yet approved.

“It's not just the extent of ED boarding that we need to understand. It's the extent of acute hospital capacity in our communities,” said Venkatesh of Yale, who helped draft the new measures.

In the meantime, some hospital systems are publicizing their plight by highlighting capacity constraints and the need for more hospital beds. Among them is Massachusetts General Hospital in Boston, which announced in January that ER boarding had risen 32% from October 2022 to September 2023. At the end of that period, patients admitted to the hospital spent a median of 14 hours in the ER and 26% spent more than 24 hours.

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Maura Kennedy, Mass General's chief of geriatric emergency medicine, described an 80-something woman with a respiratory infection who languished in the ER for more than 24 hours after physicians decided she needed inpatient hospital care.

“She wasn't mobilized, she had nothing to cognitively engage her, she hadn't eaten, and she became increasingly agitated, to get off the stretcher and arguing with staff,” Kennedy told me. “After a prolonged hospital stay, she left the hospital more disabled than she was when she came in.”

When I asked ER doctors what older adults could do about these problems, they said boarding is a health system issue that needs health system and policy changes. Still, they had several suggestions.

“Have another person there with you to advocate on your behalf,” said Jesse Pines, chief of clinical innovation at US Acute Care Solutions, the nation's largest physician-owned emergency medicine practice. And have that person speak up if they feel you're getting worse or if staffers are missing problems.

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Alexander Janke, a clinical instructor of emergency medicine at the University of Michigan, advises people, “Be prepared to wait when you come to an ER” and “bring a medication list and your medications, if you can.”

To stay oriented and reduce the possibility of delirium, “make sure you have your hearing aids and eyeglasses with you,” said Michael Malone, medical director of senior services for Advocate Aurora Health, a 20-hospital system in Wisconsin and northern Illinois. “Whenever possible, try to get up and move around.”

Friends or family caregivers who accompany older adults to the ER should ask to be at their bedside, when possible, and “try to make sure they eat, drink, get to the bathroom, and take routine medications for underlying medical conditions,” Malone said.

Older adults or caregivers who are helping them should try to bring “things that would engage you cognitively: magazines, books … music, anything that you might focus on in a hallway where there isn't a TV to entertain you,” Kennedy said.

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“Experienced patients often show up with eye masks and ear plugs” to help them rest in ERs with nonstop stimulation, said Zikry of UCLA. “Also, bring something to eat and drink in case you can't get to the cafeteria or it's a while before staffers bring these to you.”

We're eager to hear from readers about questions you'd like answered, problems you've been having with your care, and advice you need in dealing with the health care system. Visit kffhealthnews.org/columnists to submit your requests or tips.

——————————
By: Judith Graham
Title: Stranded in the ER, Seniors Await Hospital Care and Suffer Avoidable Harm
Sourced From: kffhealthnews.org//article/emergency-room-boarding-older-adults-harm/
Published Date: Mon, 06 May 2024 09:00:00 +0000

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Could Better Inhalers Help Patients, and the Planet?

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Martha Bebinger, WBUR
Mon, 06 May 2024 09:00:00 +0000

Miguel Divo, a lung specialist at Brigham and Women's Hospital in Boston, sits in an exam room across from Joel Rubinstein, who has asthma. Rubinstein, a retired psychiatrist, is about to get a checkup and hear a surprising pitch — for the planet, as well as his health.

Divo explains that boot-shaped inhalers, which represent nearly 90% of the U.S. market for asthma medication, save lives but also contribute to climate change. Each puff from an inhaler releases a hydrofluorocarbon gas that is 1,430 to 3,000 times as powerful as the most commonly known greenhouse gas, carbon dioxide.

“That absolutely never occurred to me,” said Rubinstein. “Especially, I mean, these are little, teeny things.”

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So Divo has begun offering a more eco-friendly option to some patients with asthma and other lung diseases: a plastic, gray cylinder about the size and shape of a hockey puck that contains powdered medicine. Patients suck the powder into their lungs — no puff of gas required and no greenhouse gas emissions.

“You have the same medications, two different delivery systems,” Divo said.

Patients in the United States are prescribed roughly 144 million of what doctors call metered-dose inhalers each year, according to the most recently available data published in 2020. The cumulative amount of gas released is the equivalent of driving half a million gas-powered cars for a year. So, the benefits of moving to dry powder inhalers from gas inhalers could add up.

Hydrofluorocarbon gas contributes to climate change, which is creating more wildfire smoke, other types of pollution, and longer allergy seasons. These conditions can make breathing more difficult — especially for people with asthma and chronic obstructive pulmonary disease, or COPD — and increase the use of inhalers.

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Divo is one of a small but growing number of U.S. physicians determined to reverse what they see as an unhealthy cycle.

“There is only one planet and one human race,” Divo said. “We are creating our own problems and we need to do something.”

So Divo is working with patients like Rubinstein who may be willing to switch to dry powder inhalers. Rubinstein said no to the idea at first because the powder inhaler would have been more expensive. Then his insurer increased the copay on the metered-dose inhaler so Rubinstein decided to try the dry powder.

“For me, price is a big thing,” said Rubinstein, who has tracked and pharmaceutical spending in his professional roles for years. Inhaling the medicine using more of his own lung power was an adjustment. “The powder is a very strange thing, to blow powder into your mouth and lungs.”

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But for Rubinstein, the new inhaler works and his asthma is under control. A recent study found that some patients in the United Kingdom who use dry powder inhalers have better asthma control while reducing greenhouse gas emissions. In Sweden, where the vast majority of patients use dry powder inhalers, rates of severe asthma are lower than in the United States.

Rubinstein is one of a small number of U.S. patients who have made the transition. Divo said that, for a variety of reasons, only about a quarter of his patients even consider switching. Dry powder inhalers are often more expensive than gas propellant inhalers. For some, dry powder isn't a good option because not all asthma or COPD sufferers can get their medications in this form. And dry powder inhalers aren't recommended for young or elderly patients with diminished lung strength.

Also, some patients using dry powder inhalers worry that without the noise from the spray, they may not be receiving the proper dose. Other patients don't like the powder inhalers can in their mouths.

Divo said his priority is making sure patients have an inhaler they are comfortable using and that they can afford. But, when appropriate, he'll keep offering the dry powder option.

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Advocacy groups for asthma and COPD patients more conversations about the connection between inhalers and climate change.

“The climate crisis makes these individuals have a higher risk of exacerbation and worsening disease,” said Albert Rizzo, chief medical officer of the American Lung Association. “We don't want medications to contribute to that.”

Rizzo said there is work being done to make metered-dose inhalers more climate-friendly. The United States and many other countries are phasing down the use of hydrofluorocarbons, which are also used in refrigerators and air conditioners. It's part of the global attempt to avoid the worst possible impacts of climate change. But inhaler manufacturers are largely exempt from those requirements and can continue to use the gases while they explore new options.

Some leading inhaler manufacturers have pledged to produce canisters with less potent greenhouse gases and to submit them for regulatory by next year. It's not clear when these inhalers might be available in pharmacies. Separately, the FDA is spending about $6 million on a study about the challenges of developing inhalers with a smaller carbon footprint.

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Rizzo and other lung specialists worry these changes will translate into higher prices. That's what happened in the early to mid-2000s when ozone-depleting chlorofluorocarbons (CFCs) were phased out of inhalers. Manufacturers changed the gas in metered-dose inhalers and the cost to patients nearly doubled. , many of those re-engineered inhalers remain expensive.

William Feldman, a pulmonologist and health policy researcher at Brigham and Women's Hospital, said these dramatic price increases occur because manufacturers register updated inhalers as new products, even though they deliver medications already on the market. The manufacturers are then awarded patents, which prevent the production of competing generic medications for decades. The Federal Trade Commission says it is cracking down on this practice.

After the CFC ban, “manufacturers earned billions of dollars from the inhalers,” Feldman said of the re-engineered inhalers.

When inhaler costs went up, physicians say, patients cut back on puffs and suffered more asthma attacks. Gregg Furie, medical director for climate and sustainability at Brigham and Women's Hospital, is worried that's about to happen again.

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“While these new propellants are potentially a real positive development, there's also a significant risk that we're going to see patients and payers face significant cost hikes,” Furie said.

Some of the largest inhaler manufacturers, including GSK, are already under scrutiny for allegedly inflating prices in the United States. Sydney Dodson-Nease told NPR and KFF Health News that the company has a strong record for keeping medicines accessible to patients but that it's too early to comment on the price of the more environmentally sensitive inhalers the company is developing.

Developing affordable, effective, and climate-friendly inhalers will be important for hospitals as well as patients. The Agency for Healthcare Research and Quality recommends that hospitals looking to shrink their carbon footprint reduce inhaler emissions. Some hospital administrators see switching inhalers as low-hanging fruit on the list of climate-change improvements a hospital might make.

But Brian Chesebro, medical director of environmental stewardship at Providence, a hospital network in Oregon, said, “It's not as easy as swapping inhalers.”

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Chesebro said that even among metered-dose inhalers, the climate impact varies. So pharmacists should suggest the inhalers with the fewest greenhouse gas emissions. Insurers should also adjust reimbursements to favor climate-friendly alternatives, he said, and regulators could consider emissions when reviewing hospital performance.

Samantha Green, a physician in Toronto, said clinicians can make a big difference with inhaler emissions by starting with the question: Does the patient in front of me really need one?

Green, who works on a to make inhalers more environmentally sustainable, said that research shows a third of adults diagnosed with asthma may not have the disease.

“So that's an easy place to start,” Green said. “Make sure the patient prescribed an inhaler is actually benefiting from it.”

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Green said educating patients has a measurable effect. In her experience, patients are moved to learn that emissions from the approximately 200 puffs in one inhaler are equivalent to driving about 100 miles in a gas-powered car. Some researchers say switching to dry powder inhalers may be as beneficial for the climate as a patient adopting a vegetarian diet.

One of the hospitals in Green's health care network, St. Joseph's Health Centre, found that talking to patients about inhalers led to a significant decrease in the use of metered-dose devices. Over six months, the hospital went from 70% of patients using the puffers, to 30%.

Green said patients who switched to dry powder inhalers have largely stuck with them and appreciate using a device that is less likely to exacerbate environmental conditions that inflame asthma.

This article is from a partnership that includes WBUR, NPR, and KFF Health News.

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——————————
By: Martha Bebinger, WBUR
Title: Could Better Inhalers Help Patients, and the Planet?
Sourced From: kffhealthnews.org/news/article/inhalers-environmentally-friendly-planet-dry-powder-climate-changer/
Published Date: Mon, 06 May 2024 09:00:00 +0000

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Journalists Delve Into Climate Change, Medicaid ‘Unwinding,’ and the Gap in Mortality Rates

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Sat, 04 May 2024 09:00:00 +0000

KFF senior correspondent Samantha Young discussed and climate change on KCBS Radio's “On-Demand” on April 29.

KFF Health News contributor Andy Miller discussed Medicaid unwinding on WUGA's “The Georgia Health ” on April 26.

KFF Health News Nevada correspondent Jazmin Orozco Rodriguez discussed mortality rates in rural America on The Yonder's “The Yonder Report” on April 24.

——————————
Title: Journalists Delve Into Climate Change, Medicaid ‘Unwinding,' and the Gap in Mortality Rates
Sourced From: kffhealthnews.org/news/article/journalists-delve-into-climate-change-medicaid-unwinding-and-the-gap-in-mortality-rates/
Published Date: Sat, 04 May 2024 09:00:00 +0000

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