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Telemedicine: Making Health Care a Reality for All

The American Telemedical Association, a leading telehealth association, describes telemedicine as the remote delivery of health care services and clinical information using telecommunications technology including through the internet and cellphones. Telemedicine has seen an exponential increase in the last few years with about 200 telemedicine networks and 3,500 service sites in the United States. Litigation regarding telemedicine issues was somewhat prevalent in the early 2000s, but has not been highly litigated in the last few years. Now the creation of telemedicine networks is keeping people healthy and out of hospitals as physicians and patients are downloading telemedicine apps, making healthcare available with the push of a button. Because of these advances and the lack of litigation and legislation, there may be changes to telemedicine in the near future.

 

Overall telemedicine has benefited people. The increase of health care costs has made it difficult for patients to have the means to see their doctors. Additionally, living in a rural area or not having easy access to transportation can make it hard for patients to access specialized programs. Doctors are trying to find ways to see more patients at lower costs and telemedicine is making this a reality. About two months ago, CVS Health announced that it would offer a telemedicine service through its smartphone app to treat easy-to-diagnose issues like colds, skin issues, and general wellness matters. At first, the service will cost $59 and then insurance coverage will be available in the coming months.

 

Medicaid is also accepting telemedicine to cover medical diagnosis, although the administration of the program is left to the states’ discretion. In July 2018, the Centers for Medicare and Medicaid Services (CMS) published a 1,400 page document with new proposed rules indicating that there would likely be changes to the telemedicine system. Comments to the document were due in early September 2018, so we may be breaking new barriers into health care soon. Pursuant to CMS’s proposed rules, patients would need to have a preexisting relationship with the doctor. If CMS expands this program to allow telemedicine between physicians and patients without preexisting relationships, this may open the door for legal issues. However, these new rules should simplify the process even further. They will remove barriers for those who need care so that providers can virtually check on patients and at the same time, spend time with patients who need in-person care. And telemedicine will also help the disabled and elderly who may rely on having someone who can take them to their appointment.

 

The federal government has not made many decisions about telemedicine, even though CMS is starting to make new ground and Congress is starting to look into legislature concerning telemedicine. Therefore, states are starting to pass bills to make telemedicine more prevalent in their states. The Texas legislature overruled its state medical board to enable telemedicine physician-patient relationships to proceed without an initial in-person visit; the Michigan and Indiana legislatures reversed restrictions on telemedicine regarding in-person visits; and telemedicine is seeing support in Pennsylvania and Louisiana.

 

However, there are still some issues that need to be explored before telemedicine can become a truly effective national resource. Since physicians and patients may not be in the same jurisdiction, and jurisdictions tackle certain health care issues differently, there may be an issue in crossing jurisdiction for treatment. Insurance companies will also have to determine how private insurers will cover telemedicine services. Overall, Congress should look into regulating telemedicine so that insurance providers and legislation help achieve the goal of providing healthcare to those who may not have easy access.

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Developments in Drug Pricing and Anti-Kickback Laws

On Wednesday, President Trump signed the Patient Right to Know Drug Prices Act. The bill tackles a number of issues that stand in the way of lowering high drug prices, particularly the discussion over the ‘gag rule’ in interactions between insurers and pharmacists. Under the current provisions of the gag rule, insurers are forbidden from disclosing whether the cash price for a drug is in fact cheaper than the price offered under the patient’s insurance plan. The new law will rescind that prohibition. However, it will only apply to name-brand prescriptions and not generics, but many are hopeful that it will raise an overall awareness for consumers about the actual prices they are paying for their prescriptions.

The Trump Administration is also working to lower drug prices by examining some of the specifics of federal anti-kickback laws that relate to prescription pricing. Under current law, pharmaceutical and insurance companies are not allowed to offer any benefit to physicians to prescribe one particular drug versus another. There is a significant exception in these regulations, however, known as ‘safe harbor rules.’ Under these exceptions, pharmaceutical companies and prescription benefit managers (PBMs), the companies that administer pharmaceutical plans on behalf of insurers, are allowed to negotiate the prices of a particular drug by discussing the different prices the manager will offer the drug for.

This once again has put the spotlight on drug rebates offered by pharmaceutical companies. With rebates, firms offer monetary incentives to encourage insurers to carry their drug, lessening the overall cost for insurers to carry the drug. These rebates are meant to be administered to the consumer, but in many instances are taken by the PBMs to boost their profits. Pharmaceutical companies have recently attempted to combat these strategies, partially in an attempt to deflect some of the criticism towards them on drug pricing, by offering generics with lower prices, so that the PBMs will receive lower rebates on the negotiated drugs. The FDA is currently examining the administration of rebate plans and is considering ending the exceptions they have under anti-kickback statutes.

Ultimately, any of these steps to reduce drug pricing will not be broadly impactful, as expansive steps to allow Medicare to directly negotiate the price of drugs with producers have failed to gather sufficient bipartisan support. Further, much of the controversy surrounding high drug prices have been focused on some of the more infamous instances, such as Sarepta Therapeutics’ $300,000 per year muscular dystrophy treatment . Until successful generics reach the market, these specialized treatments will be under no pressure to lower their prices.

It is unlikely that there will be any unified support to take more aggressive steps to lower drug prices, but pharmaceutical companies seem to recognize to some degree the public backlash to these prices and have taken steps to cap drug prices, most notably beginning with Allergan’s promise to increase drug prices by no more than 10% year-to-year.

In his statement at the bill signing, President Trump spoke of the bipartisan nature of lowering prescription drug prices. He also spoke generally about upcoming steps the Department of Health and Human Services will begin to take to further bring down prices. It remains to be seen what further steps will be taken, but is likely both Congress and the Trump Administration will continue to evaluate how they can change many of the regulations on drug prices that keep them so high.

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What Could Brett Kavanaugh do to Women’s Health Law?

President Trump’s Supreme Court nominee, Judge Brett M. Kavanaugh, has been a constant conservative presence on the United States Court of Appeals for the District of Columbia Circuit for twelve years.  Judge Kavanaugh has made it a point to stress textual limitations of the Constitution while often supporting corporations over regulators, and the government over individuals claiming violations of their rights.  With seldom exceptions, his position is to the right.  With his nomination, Americans are concerned that long standing precedents may be overturned, and Kavanaugh’s appointment could mean huge changes especially when it comes to women’s health.

When President Trump nominated Judge Kavanaugh on July 9, 2018, the President spoke highly of him as a person, a father, and a judge.  Judge Kavanaugh has stated that he had no intentions of overturning Roe v. Wade precedent during yet has eluded to a narrower interpretation  of when a woman can exercise that right.  In this time of “fake news,” a term coined by the President himself, it is unsettling as a woman to trust Kavanaugh’s statement as a promise.  His actions and opinions thereafter have raised even more concern.

In a notable decision in the fall of 2017, the DC Circuit voted to allow an undocumented pregnant seventeen year-old girl in an immigration detention center to obtain an abortion without delay. Judge Kavanaugh dissented.  He noted that while the Court of Appeals was obliged to follow Supreme Court rulings that recognized the Constitutional protection of a woman’s right to choose an abortion, those precedents left room for the government to apply “reasonable regulations that do not impose an undue burden.” Judge Kavanaugh sided with the Trump Administration, who argued that the young women should first be transferred to an adult sponsor for guidance, and argued that it was reasonable to choose a transfer to a sponsor instead of “forcing the minor to make the decision in an isolated detention camp with no support network available. . . . The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” he wrote.

Many Democrat political figures, like Elizabeth WarrenJeff Merkley, Dianne Feinstein, and Kamala D. Harris have expressed their grave concerns with a Kavanaugh appointment and made it clear that, in their opinion, Judge Kavanaugh does not intend to maintain Roe v. Wade precedent.  Senator Harris said, in response to Judge Kavanaugh’s remark equating birth control to “abortion inducing drugs,” tweeted on September 7, 2018, “Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control. He was nominated for the purpose of taking away a woman’s constitutionally protected right to make her own health care decisions. Make no mistake – this is about punishing women.”

As disconcerting as anything unknown, only time will tell if Judge Kavanaugh will be given Supreme Court decision making power with the hearings on the sexual assault allegations delaying the vote.  In moments like these, it is paramount we realize how influential these types of nominations and appointments can really be in our country.

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The ACA Twilight Zone

Death by a thousand cuts has been the Trump Administration’s approach to the Affordable Care Act (ACA).  To be sure, President Trump  tweeted on April 23, 2017 that “ObamaCare is in serious trouble.”  On October 13, 2017, he tweeted, “ObamaCare is a broken mess. Piece by piece we will now begin the process of giving America the great HealthCare it deserves!”  On May 30, 2018, he stated: “For the most part, we will have gotten rid of a majority of Obamacare.”  And on June 4, 2018, he tweeted, “We had Repeal & Replace done (and the saving to our country of one trillion dollars) except for one person, but it is getting done anyway. Individual Mandate is gone and great, less expensive plans will be announced this month.”

In the courts, the ACA has certainly been no stranger to the artful attack.  But two lawsuits, one filed in Texas and the other in Maryland, have gained nationwide traction and hold nationwide consequences.  The first suit, Texas v. US, made its way to U.S. District Court Judge Reed O’Connor’s bench in the Northern District of Texas.  The 20-state GOP led suit was filed on February 26, 2018 by Texas Attorney General Ken Paxton.  It argues that since the ACA was only upheld by the Supreme Court in NFIB v. Sebelius because the individual mandate was a tax, and now that the Tax Cut and Jobs Act of 2017 (TCJA) zeroed-out the individual mandate penalty, the entire ACA is unconstitutional.  The Plaintiff-states also argue that since the ACA does not have a severability clause – a clause that would allow the rest of the statute to live if one part is stricken – the ACA as a whole must fall.

Under Attorney General Jeff Sessions direction, the government will not defend the ACA’s constitutionality.  Defending the ACA, and its patient protections like the prohibition on insurers from discriminating against patients with pre-existing conditions, are 17 Democratic attorneys general representing their respective states as Intervenor-Defendants.  A slew of patient groups and scholars filed amicus briefs in support of the Intervenor-Defendants, but only Citizens United filed as amicus in favor of the Plaintiff-States.  The American Cancer Society Cancer Action Network filed as amicus, urging the court to uphold the ACA and to “recognize Congress’s clear intent to improve access to lifesaving health care for millions of Americans.”  A bipartisan group of law professors filed as amicus, arguing that “[t]he arguments of both the plaintiff States and the United States on the severability of the insurance mandate from the other provisions of the ACA are inconsistent with settled law.”  On July 19, 2018, Senate Democrats introduced a Senate resolution that would authorize Senate Legal Counsel to intervene in Texas v. US to defend the ACA’s patient protections for people with pre-existing conditions.

The second suit, City of Columbus v. Trump, filed on August 2, 2018 by the Cities of Baltimore, Chicago, Columbus, and Cincinnati in the U.S. District Court for the District of Maryland alleges that the Trump Administration’s actions over the last several years amount to an unconstitutional sabotage of the law the President is required to faithfully execute.  The suit makes two claims: the first claim that the Administration is acting arbitrarily and capriciously, and the second that President Trump is violating the “Take Care” Clause of the Constitution.  Under the Take Care Clause of the U.S. Constitution, the President and his or her Administration must “take care that the laws be faithfully executed.” U.S. Const. art. II, § 3.  The suit cites a range of administrative actions taken to sabotage the ACA and have the aim and effect of weakening ACA exchanges, driving up premiums, and driving out issuers, ultimately increasing the rate of the uninsured and underinsured.

Judge O’Connor, after first announcing that oral arguments in Texas v. US would take place on Monday, September 10, moved up oral arguments to Wednesday, September 5, at 9:30 a.m.  At the same time in Washington, D.C., Supreme Court nominee Brett Kavanaugh will be testifying before the Senate Judiciary Committee for potential confirmation.  As some have noted, the fate of the ACA could turn on Kavanaugh’s appointment to the Supreme Court.  Kavanaugh’s preeminent views on separation of powers and his textualist-meets-originalist approach to statutory interpretation is consistent and can be expected to appear in his opinions, but is alarming to health care advocates and patients.  Kavanaugh’s jurisprudence shows that he cares deeply about administrative law and is unlikely to “deconstruct the administrative state,” but he is likely to “put a tighter leash on the regulatory state.”  In all, the fate of the ACA remains to be seen.

 

 

 

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States Fight to Control High Drug Prices

On Friday, April 13, 2018, the Fourth Circuit ruled 2-1 that Maryland law HB 631, prohibiting price gouging by generic pharmaceutical companies, is unconstitutional because it violates the dormant commerce clause by directly regulating transactions that occur outside of the state.

The Maryland law prohibites generic drug manufacturers or wholesale distributors from making unconscionable increases to the price of an essential off-patent or generic drug. The Association for Accessible Medicines (AAM), a trade group of generic drug manufacturers, sued the Maryland Attorney General to stop implementation of the law because they said the law violated the dormant commerce clause and the law is impermissibly vague, violating the Fourteenth Amendment Due Process Clause. The Commerce Clause allocates power to the federal government to regulate interstate commerce and constrains states from enacting legislation that interferes with or burdens interstate commerce. The dormant commerce clause limits states from enacting legislation that controls the price of goods outside of the state. The AAM appealed the District Court for the District of Maryland’s decision that granted the State of Maryland’s motion to dismiss AAM’s challenge and denied AAM’s motion for injunctive relief.

The Fourth Circuit found the law unconstitutional because (1) the law is not triggered by conduct that happens inside the state of Maryland, (2) even if it did, the law seeks to control transactions that occur outside of the state, and (3) if other states enacted similar laws, this would impose a significant burden on interstate commerce. The Court did not address whether the statute violated the Fourteenth Amendment because it ruled it unconstitutional under the commerce clause.

Maryland is not the only state working to control high drug prices through legislation. In March of 2018, Oregon passed the Prescription Drug Price Transparency Act, HB 4005. The Oregon law would create new reporting requirements for drug manufacturers related to price increases and patient assistance programs. In 2017, Louisiana, Nevada, California, Maryland, and New York all enacted transparency bills related to drug prices. In 2016, Vermont enacted SB 216 to identify the top fifteen drugs that the state spends the most money on. These states join others that have already put in transparency laws related to prescription drugs like the District of Columbia’s AccessRx law, which requires reporting on gifts to healthcare providers in the District from pharmaceutical companies.

Similar to the Maryland law, laws in other states have been challenged by pharmaceutical and device manufacturer trade groups. The Pharmaceutical Research Manufacturers Association (PhRMA) and Biotechnology Innovation Organization (BIO) have challenged Nevada statute, SB 539, for infringement on patent and trade secrets. The Nevada law requires manufacturers of essential diabetes drugs to report manufacturing costs of the drug, a list of sales representatives who market the drug, payments or donations to nonprofit organization, and other information. In California, PhRMA filed a complaint seeking declaratory and injunctive relief against implementation of SB17, which imposes reporting requirements on pharmaceutical companies for certain price increases on their products sold to state purchasers in California.

The Maryland law was unique because it was the first state law that went beyond reporting and instead explicitly prohibited price increases. The Fourth Circuit decision might scare other state legislatures from passing more aggressive laws to stabilize or lower drug prices. Transparency laws, like the ones passed in 2017, are important because policy makers cannot know there is a problem without the data to examine whether there is one. But there also needs to be more policy action towards potential solutions to keep drug prices down. The Fourth Circuit majority opinion did note that they were sympathetic with consumers who have been affected by high drug prices and that the decision is is not meant to suggest that Maryland and other states cannot enact legislation to secure lower prices for prescription drugs for citizens within their state. Hopefully patient advocacy groups keep pushing for similar state laws and other policy changes to shift the landscape of drug pricing.

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