Category: Blog

            Last month, the
Trump Administration unveiled a new demonstration program that has the
potential to dramatically overhaul the way Medicaid operates.  Currently, Medicaid is designed as a federal-state partnership in which the federal government matches the
money a state spends to cover its Medicaid population. The new program, Healthy
Adult Opportunity (HAO), would provide a route for states to receive a capped
amount of federal dollars (i.e., a block grant) in exchange for fewer
restrictions on determining who qualifies and what services are available to
them. Seema Verma, the Administrator of the Centers for Medicare and Medicaid
Services (CMS), celebrated this plan as an innovative approach to ensure the
long-term financial sustainability of Medicaid. While Medicaid’s financial
maintenance is an ever-present concern, HAO may reduce access to important healthcare
services, create greater financial risk for states, and present significant
legal barriers.

            Changing Medicaid’s financing scheme
creates greater financial risks for states that pursue HAO. Medicaid’s current
open-ended financing structure was designed
to broaden states’ ability to provide healthcare coverage to their low-income
residents by adjusting
federal funding depending on the state’s level of need. For example, if a
recession hits and Medicaid enrollment grows, federal funding would increase to
cover most of the additional costs. However, states adopting the new approach
must accept responsibility for costs higher than the caps. This change would shift financial risk to states, with federal funding cuts likely to occur
when states have the least ability to accommodate them— such as during
recessions, public health emergencies, and other instances when states must
balance high demand for coverage and budgetary strain. The risk of hitting the
funding caps would put pressure
on states to control spending by cutting coverage.

            States that adopt HAO will likely
face litigation. By offering funding through a capped fund scheme, the Trump
Administration claims expansive authority to overturn explicit statutory
requirements for Medicaid eligibility, cost sharing, and financing. The legal basis of HAO lies in the “expenditure authority” outlined
in section 1115 of the Social Security Act. This section authorizes federal
matching funds for expenditures not typically allowed under Medicaid, if these
expenditures are needed to implement an experimental project likely to assist
in promoting Medicaid’s objectives. However, two legal problems exist for this framework. First, the ability
of block grants to promote the objectives of Medicaid, the legal standard for the authorization of
these waivers, is unclear. The U.S. Court of Appeals for the D.C. Circuit recently affirmed that Medicaid’s main objective is to provide
health coverage to low-income people, but block grants would incentivize
coverage of fewer people. Second, the part of the Medicaid statute that governs
its open-ended financing structure is not listed
as a provision that is alterable through waiver.

            The heightened discretion offered by
the demonstration program may reduce access to services and impact millions of
people. To receive federal matching funds, states must provide core benefits (e.g.
hospital services) to mandatory populations (e.g. low-income pregnant women)
without imposing waitlists or enrollment caps. States may also receive matching
funds to cover “optional” benefits, such as prescription drugs. Conversely,
states that adopt HAO would receive broad, and in some instances unprecedented,
authority
to change benefits. The demonstration project encourages states to include the
millions of low-income adults without children who obtained coverage through
the Affordable Care Act’s Medicaid expansion under capped funds, which would
likely negatively impact their ability to access health care. Moreover, states
would also gain the ability to deny coverage
for costly but necessary prescription drugs, including those for diabetes and
cardiovascular conditions. Finally, states may impose new out-of-pocket costs for physician visits and prescription drugs on
low-income enrollees. Cost sharing in Medicaid, even in the amount of a $1
copay, has been shown to deter people from accessing care.   

            The idea of capped funds to meet
Medicaid’s financing challenges is far from new. Policymakers have discussed
block grants for Medicaid since the Nixon Administration and as recently as the 2017
repeal-and-replace. In light of this history, the Trump Administration should
consider why prior administrations and congresses have chosen not to take up
this policy, as well as its potential to create financial risks, lead to
litigation, and reduce access to healthcare for millions
of low-income people.

A severe mental illness can be a death
sentence, but not for the reasons you might think. Individuals living in the
United States with untreated mental illness are 16 times more likely to be
killed during a police encounter than any other civilian approached or stopped
by law enforcement. The reality is,
police officers are often the “first responders” to individuals with severe
mental illness–answering calls about “disturbances”, suicidal ideation, or
crimes committed– but are ill-prepared for dealing with these complex psychiatric cases.

According to the Treatment Advocacy
Reports, 1 in 5 inmates in America have a serious mental illness; even more
have diagnosable mental illness. First
responders (including police) are reluctantly taking over the role many believe
that should involve psychiatrists or other mental health professionals. The
justice system in turn is tasked with solving the social problems that occur as
a consequence of a severe mental illness. It is abundantly clear that prison is
not the answer for solving serious
mental health issues. Rather, reports compiled by organizations such as the WHO show that incarceration will only
exacerbate these problems. Still, law enforcement see few options apart from
arrest and/or incarceration when dealing with mentally ill individuals; when
they are tasked with balancing individual well-being against public safety.

The alternative to incarceration is
involuntary hospitalization. The misconception held by some mental health and
legal professionals is that involuntary hospitalization can be the best thing
for people with severe mental illness; and protects those with severe mental
illnesses from ending up in the justice system. However, there is
inconclusive evidence of the effectiveness of involuntary hospitalization.
Ironically, one of the reasons why there is an overrepresentation of persons
with serious mental illness in the justice system is because of deinstitutionalization. Following the arrival
of antipsychotics in the 1950s, the public view became that it was not
necessary to detain individuals with mental illness since treatment of psychiatric
symptoms was available. By the 1990s the number of psychiatric inpatients had
been reduced from 550,000 in 1950
to 30,000. Nonetheless, the issue became that individuals with serious mental
illness, who were disproportionately homeless or extremely low-income, could
not afford access to these new treatments. As a result, the number of
individuals with untreated serious mental illness within the prison population increased.

At the end of what seems to be a very
complex issue is a very simple solution. The medical profession has reached a
point where effective treatments are available for
individuals with mental illness. Medical facilities provide access to mental
health professionals beyond psychiatrists; facilities have social workers,
counsellors, psychologists, occupational therapists, even specialists with specific training to treat addiction.
The only remaining issue is funding. How can those who need access to mental
health services get that access when the cost is so high? Well, recent research
has shown that publicly funding psychiatric medication may save taxpayers money. A Desmarais study
recently found that people who receive less mental health services
unsurprisingly incurred higher criminal justice costs, which averaged $95,000 per person. In
comparison, the study showed that people who received more mental health
services had lower arrest rates bringing the criminal justice costs down to
$68,000 per person

The answer is to
provide better access to mental health services for people who need it the
most. Simply pushing mental health issues away has caused these issues to be
dealt with in inappropriate, and often detrimental, ways that are not only
unhelpful but economically burdensome to society. Our choice
does not need to be between involuntary and incarceration as the means to
combating serious mental illness.

There’s an
app for just about everything. There’s an app for pretending to
shave your beard. There’s an app for helping bread become toast. There’s even
an app for timing your pee breaks at the movie theater. However pointless these
apps might be, one of their functions is much more sinister…. they collect and sell your data. You might think, “Why
does it matter if someone knows when I take my pee break during a movie?” Well.
It probably doesn’t. But the practice of selling your data isn’t isolated to
silly apps like these— apps may actually sell data about your  health and personal habits.

Let’s take
an ovulation tracker, for example. Young women across the country willingly
download apps to manually submit information about the schedule of their
monthly period for a variety of reasons. They may be trying to get pregnant.
They may be trying to avoid getting pregnant. They may just want to be as informed
about their body as possible. But what they likely don’t know is the privacy
policy of that app… or lack thereof.

According
to a study by the British Medical Journal, 19
out of the 24 health monitoring apps they tested shared health related data
with companies like Google or Amazon. Furthermore, one third of the apps that sold this personal data to
companies did not even disclose the practice in any privacy policy.

In many cases, this data will be used in
marketing and advertising campaigns. While targeted ads are annoying, they
aren’t the real threat here. If health insurance
companies gain access to your medications or medical history, it could affect
insurance rates or employment benefits. The healthcare privacy rules that
typically protect people simply don’t apply to information voluntarily
submitted to mobile apps. The majority of health apps aren’t subject to
national regulations, which can be detrimental to the financial well-being and
privacy of people utilizing apps to help them with weight loss, addiction, and
mental illnesses. This is even more worrisome as companies, such as Amazon, Apple, and Google, attempt to move into the
healthcare market.

Thankfully,
this issue has not been completely ignored. Vermont recently passed privacy laws to
force companies to be transparent about the collection of health-related data.
Last November, legislation was proposed in the Senate to
prevent companies from mining personal health data from patients. In the meantime,
if you are worried about how companies may use the information from your apps, the best advice is to read an app’s privacy
policy, know your own privacy settings, and be wary of free apps.

On January 17, 2020,
the U.S. Supreme Court
granted the writ of certiorari to hear two cases involving employers’
obligation to provide health insurance coverage for contraceptives. Employers
are currently
required to provide employees with health insurance including women’s
preventive care under the Affordable Care Act (“ACA”). In 2011, the U.S.
Department of Health and Human Services (“DHHS’) announced a rule to allow employers to use religious
beliefs as an exception to providing female employees with insurance that
includes women’s preventive care.  Later,
in 2017, DHHS announced an interim rule which expanded
upon its original exemption to include employers who had not only religious
conflicts but also moral or ethical objections. 

The Supreme Court
consolidated two cases relating to the DHHS’ rule.  The first case began before the new rule went
into effect, when the Attorney General of Pennsylvania filed for a
preliminary injunction to stop the rules enforcement. The District Court for
the Eastern District of Pennsylvania entered a nationwide injunction against
the rule’s enforcement;  the Third Circuit Court upheld
the District Court’s decision. The second
case involves a right of intervener filed by the Little Sisters of the
Poor, a mission based organization led by catholic nuns 
who intervened to object to the national
injunction on the DHS’ rule.

 In support of the DHHS rule, religious
organization and employers contend that under the Religious Freedom Restoration Act (“RFRA”) they are entitled to exercise their religious
belief.  Since the use of contraception is
not supported by those religious beliefs, religious organizations claim an
exemption from the ACA requirement.  However,
Pennsylvania
argued that the DHHS did not follow the rule making requirements under the
Administrative Procedures Act, and the rule goes beyond the legislative intent
of the ACA.  Further, RFRA does not
create an exception for the ACA requirement because the ACA’s requirement does
not put a substantial burden on religious exercise.  Finally, Pennsylvania argues that the interim
rule would create irreparable harm to state citizens by limiting access to
affordable health care.

This is not the first
time the Supreme Court has listened to an argument regarding the religious
exception to the ACA. In 2014, the court decided in Burwell v. Hobby Lobby Stores by a 5-4 decision
that under RFRA, DHS could expand religious exceptions to for-profit companies
since those rights were already extended to non-profit companies. In her dissent,
Justice Ginsburg, disagreed with the majority’s view because for-profit
companies are not allowed to declare a religion.  Additionally, judicial
precedent states that a religious belief cannot “impinge on the rights of
third parties”.

In the writ for certiorari
in Little Sisters of the Poor Home for the Aged v. Burwell, the petitioners
asked
the Court to answer whether the federal government lawfully exempted
religious objectors from the regulatory requirement to provide health plans
that include contraceptive coverage.  Meanwhile,
in Trump v. Pennsylvania, the State of Pennsylvania proposed the following
questions to the Court: First, whether the
agencies had statutory authority under the ACA and the RFRA, to expand the
conscience exemption to the contraceptive-coverage mandate; and second, whether
the agencies’ decision to forgo notice and opportunity for public comment
before issuing the interim final rules rendered the final rules—which were
issued after notice and comment—invalid under the Administrative Procedure Act,
5 U.S.C. 551 et seq., 701 et seq; and third, whether the court of appeals erred
in affirming a nationwide preliminary injunction barring implementation of the
final rules.

The Supreme Court is
poised to deliver its opinion on this high-profile issue before the end of the
current session. The court’s decision might finally clarify the obligations
employers have to provide women’s preventative healthcare to female employees
and if there are exceptions to that obligation under RFRA, the ACA or the U.S.
Constitution. 

Typically,
individuals and families with health insurance have the advantage of receiving
free flu shots every season, but a recent report from the Kaiser Health Network
paints a different picture of the true cost insurers pay to provide free vaccinations to its plan holders. While the
cost of a yearly flu shot appears low, the millions of Americans who are
vaccinated in the US do not realize that the costs of providing such services
are recouped in the high insurance premiums consumers pay each month. Specifically,
the true cost of this “free” service can be found in the explanation of
benefits provided by insurers. Moreover, 
Kaiser Health Network reported significant variations in the cost of flu
shots among health care payers and insurers.

Cigna
reported paying different prices for the vaccine in DC versus MD where
distances between some clinics were 10 miles or less. For instance, in 2017,
the Peterson Kaiser Family Foundation Health System Tracker reported flu vaccine costs ranging from $28 to $80, with a
misleading median cost of $45.” Insurance payers such as Cigna indicate that
geographic variations are major price factors, even in the DC/MD region.

Market
dominance has also been attributed to the varied cost of flu shots. Sutter Health, a
nonprofit medical network giant,
tentatively settled a lawsuit with expected damages of $2.7 billion after being
accused of violating antitrust laws. Self-insured employers initiated the
lawsuit and were later enjoined by California’s Attorney General’s Office. The lawsuit
accused the conglomerate of taking advantage of its market dominance by
charging insurers higher rates to provide flu shots at affiliated health care
facilities. The state alleged that Sutter Health, a major health care system in
Northern California, used its market dominance to drive up the cost of services
and apply an all-or-nothing approach when contracting with insurance companies.

US antitrust
law prohibits the use of unfair tactics to control a market or form a monopoly.
When determining whether a company engaged in antitrust
behavior, the
court considers the company’s effect on the market as well as if the business
activity intended to remove competition. Federal and state authorities can
bring charges against those who violate these laws, and both civil and criminal
remedies are available to companies affected by unlawful business activity.

The Sutter
Health settlement may have nationwide implications on price negotiation tactics
between large hospital systems and insurance companies. The lawsuit revealed
that Sutter Health uses tactics to unnecessarily increase insurance prices. For
example, Sutter Health uses factors such as location, competition, and plan
provider when determining the cost to administer the vaccine. But the Kaiser
Foundation reported that, even in consideration of those factors, Medicaid pays
significantly less for the flu vaccine, and the price appears to be comparable
across locations within states. This public revelation may send a signal to
other large health systems who might be involved in similar practices.

Nonetheless,
it seems disadvantageous for consumers to pay the high cost of the flu vaccine
when there is no guarantee of its effectiveness. The rising cost of the flu
vaccine is indicative of a larger problem in the US health delivery system. While
the flu vaccine has proven beneficial to most Americans, its administration
across the country lacks efficiency due to unfair business practices. Lawmakers
should use the Sutter Health antitrust lawsuit as an opportunity to examine this
aspect of the healthcare market and develop meaningful policies to prevent
unfair and predatory practices.

Since
the onset of the AIDS epidemic in the early 80s, public health officials and
lawmakers have proposed legislative approaches to prevent HIV transmission at both the national and
state level. lawmakers have tried to address this issue using punitive measures
by enacting laws that criminalize high-risk behaviors linked to negligent HIV
exposure. Twenty-five states criminalize behaviors that increases the risk for HIV exposure; and some states include low-risk
behaviors like oral sex. Most of these laws were enacted before the emergence
of antiretroviral therapy, and the laws do not account for other preventative
measures such as condom use and pre-exposure prophylaxis (PreP).

States also criminalize intentional STD exposure, but typically result in short sentences (rarely exceed thirty-four months). Similarly, all states have assault and battery laws and other criminal statutes that can be used to prosecute high-risk behaviors that can lead to negligent HIV exposure. Despite its intention, state laws further sanction and stigmatize those with HIV. In addition to criminalizing certain behaviors, state law also determines the maximum sentences for violating HIV-specific statutes. The CDC reports that eight states issue sentences for HIV-specific violations between eleven and twenty years in prison; while two states impose longer sentences (greater than twenty years), and two may impose up to life in prison.

LGBTQ advocates outline how many of these laws were rooted in homophobia but gained traction by claiming to promote public health. Not only do they have a disproportionate effect on LGBTQ individuals, but these laws have a disparate impact on women and people of color. Aware of this discriminatory effect, the California legislature introduced Senate Bill 239 in February 2017. This bill reduces HIV transmission from felony to misdemeanor and repeals mandated criminal penalties for donating blood, organ, and breast milk while being HIV-positive. Unfortunately, not many states have followed suit.

Experts in AIDS research have long resisted these laws, claiming that they are ineffective and unwarranted. Linda-Fail Bekker, a professor of medicine at the Desmond Tutu HIV Foundation says, “in many cases, these misconceived laws exacerbate the spread of HIV by driving people living with, and at risk of, infection away from treatment services.” The science of dispelling HIV stigma is insufficient to end HIV criminalization. Lawmakers must consider the overarching human rights principles and advance public health efforts and education to adequately address the criminalization of HIV in the US.