Category: Blog

Before the
Affordable Healthcare Act (ACA), 44 million Americans were uninsured. While the
Affordable Care Act (ACA), passed in 2010, improved the provision and delivery
of healthcare to over 16 million Americans, there are still gaps in coverage. Since its rollout, the ACA has faced several legal
challenges including a lawsuit filed in 2016 against Sylvia Burwell, the HHS
Secretary during the Obama Administration. This initial challenge sparked a
nationwide injunction against certain ACA provisions. In what has been known as
the landmark ACA case, U.S. v. Texas, 20 states sought to strike down the entire Act after
challenging the individual mandate to maintain health coverage each tax year
that was enacted following the passage of the Tax Cuts and Jobs Act of 2018 ( under the Trump Administration). The Supreme
Court is expected to make its final ruling later this year as to whether ACA,
in its entirety, will be upheld.

The
COVID-19 crisis further complicates the ACA issues. A vaccine is likely not going
to be available for the next year or so, meaning it will be available only after
the Supreme Court will make its decision. Experts suspect that overturning the ACA will cost many Americans their insurance
benefits, which limits their access to vaccines (when available), leaving
Americans vulnerable to the continued spread of the virus. High-ranking elected
officials view the continued pursuit of some courts to strike down the ACA as  “unconscionable” during a public health emergency such as
this. 

Lawmakers are split on their
views of the ACA in the wake of the 2020 Pandemic. Democratic lawmakers have
expressed concerns over the problems that gaps in coverage will have on the spread
of COVID-19, while Republican lawmakers have upheld their contention that
Americans’ previously demonstrated intent to seek alternatives to ACA health
plans, negates arguments that ACA should re-open enrollment. A House Republican
further noted that coronavirus testing is free and the Administration reports
that many states continue to expand Medicare to cover those experiencing loss
of jobs and health coverage. 

In contrast to what Republican lawmakers presented in
the ACA debate, nine states (Colorado,
Connecticut, Maryland, Massachusetts, Nevada, New York, Rhode Island, and
Washington) have made it possible for its citizens to obtain some form of
medical coverage during the COVID-19 crisis. Typical of most insurance plans,
individuals and families can only elect coverage during open enrollment once a
year without a qualifying status change. Nonetheless, these nine states have
created a special enrollment for citizens or extending the current open
enrollment period. Insurers are supportive of these states and are looking for
ways to mitigate any risks associated with new enrollees during the Pandemic.

Kaiser Family Foundation describes the use of ACA
health plans as a safety net during the Pandemic that can be used by Americans
who have lost wages due to reduced hours or business closings. Subsequent
limits on health coverage may cause some to delay care which harms the health
of the community. KFF further reports substantial out-of-pocket expenses for
those hospitalized. The report insists that
gaps in coverage will cause some people to delay treatment which could have
serious consequences as the country tries to reduce the number of new or
undiagnosed COVID-19 infections. As the ACA moves closer to its final day
in court and the COVID-19 continues as a pandemic lawmakers are now asked to
consider whether the health of the nation should suffer as a result of
political turmoil.

Since
the COVID-19 outbreak emerged in the U.S., federal guidance and state orders
have been released in waves over the last several months having an especially
drastic effect on healthcare that extends beyond the care of patients infected
with the virus. Many states have now mandated the suspension of elective
medical services. When response efforts are locally executed and state managed,
however, disparities emerge over what governments consider to be “elective”. As
a result, while many healthcare services have remained uninterrupted, surgical
abortions are being called into question as to whether they should be
considered “elective,” and therefore suspended during this time.

What
is an essential business?

On
March 16, 2020, the President and the Coronavirus Task Force recommended that
civilians work from home while calling for those who work in critical
infrastructure industries to remain in operation. The “Essential Critical
Infrastructure Workforce” advisory list was developed to help state officials
determine which businesses and services should remain operational during this
period.

State
interpretations

To
create capacity and meet the increases in resource demands, many states have
chosen to follow CDC guidelines stating that “healthcare
facilities and clinicians should prioritize urgent and emergency visits and
procedures…”

In
states where surgical abortion procedures were previously facing challenges,
the term “elective” in these materials has given states significant latitude in
determining what patients need, under what terms, and when. The argument for
restricting elective or non-urgent medical procedures is not without merit. The
U.S. is experiencing a shortage of personal protective equipment and medical
supplies leaving states to ration existing provisions. Most states have required
providers to suspend non-urgent services such as annual physicals, dental
check-ups, cosmetic procedures, and routine screenings such as colonoscopies
and mammograms.

Although a patient may choose to receive an abortion, relying on this choice to classify surgical abortions as elective results in unique issues unfaced by other elective-designated medical procedures. Abortions are time sensitive. Most acutely in states that have reduced the window of time a patient may obtain an abortion, requiring a patient to wait until after the outbreak jeopardizes the opportunity they have to access this service. This is especially challenging when states are consistently moving back the date upon which elective or nonessential medical services can be resumed as new information emerges on the severity of state outbreaks. Historically, we know that restricting access to surgical abortions does not decrease the need for their services. Women who are unable to obtain an abortion will either require complex surgical procedures for later-term abortions, remain pregnant and require prenatal care and delivery services, or may use dangerous methods to induce an abortion on their own (UCSF Bixby Center). The side effects of suspending surgical abortions would result in more frequent clinical visits (i.e. prenatal care) or longer admissions (i.e. later-term abortions, self-induction, delivery) in the hardest hit clinical settings these restrictions are trying to protect. If suspending elective medical procedures is also a tactic to reduce social contact among patients and with medical providers, restricting abortions will likely result in women traveling to other states where the service is preserved, increasing the chance for viral mobility and exposure.

Below
is a summary of the states that have classified abortions as “elective” during
the pandemic and states that are facing challenges to these determinations in
court.

Additional
information on state-specific mandates/guidance can be found here. Challenges to these
designations in court have been summarized here.

Post-pandemic

The
COVID-19 outbreak has illuminated many vulnerabilities in our healthcare
system. Prior to the pandemic, abortion services were facing renewed challenges
in courts. Classifying abortions as “elective”, however, perpetuates the
rhetoric that abortions are chosen luxuries when women often face little choice
in the nonmedical reasons they have to obtain an abortion. It is difficult to
see through the thicket of disparate recommendations and orders made by state
and local governments, but it is clear that the end of the pandemic will not
eliminate the challenges raised by these regulations nor the discretion states
may take in the future in deeming what is and is not essential medical care.

Medical innovation in Assisted
Reproductive Technology (ART) has rapidly outpaced the statutory Estate and Tax
guidance that governs the inheritance rights of children conceived by such
technology. The use of cryopreserved reproductive material and embryos poses a significant
challenge for estate planning: how must we draft and administer
multi-generational trusts to protect the wealth of families created by such
technology?

            According
to the 1992 Fertility
Clinic Success Rate and Certification Act, ART is defined as fertility
treatments in which both eggs and embryos are handled, specifically, medical
procedures that surgically remove eggs from a woman’s ovaries, combine them
with sperm, and return them to a woman’s uterus. The most common types of ART
include in
vitro fertilization-embryo transfer (IVF-ET), gamete intrafallopian
transfer (GIFT), zygote intrafallopian transfer (ZIFT), and frozen embryo
transfer (FET).

            The
advancement of reproductive technology has enabled reproductive material to
remain viable decades later. In fact, embryos can be preserved and used to
conceive a child years after both of the genetic parents are deceased. While
this may seem like an exceedingly rare circumstance, as of 2011, “the
Social Security Administration reported receiving more than 100 applications
for Social Security survivor benefits on behalf of posthumously
conceived children.” It is unsurprising that this type of medical innovation
has prompted innumerable estate
planning questions to which applicable statutory guidance is yet to exist.
Thus, courts are tasked with interpreting the wills and trusts of decedents who
would have likely considered ART to be the subject of science fiction at the
time of executing their wills or trusts.

            A
core task of estate planning is to create documents that secure the future
transfers of a family’s wealth, while protecting the inheritance from unfriendly
or uncertain tax environments. An estate planning tool that seeks to accomplish
such a task is called a multi-generational trust, which allows a grandparent to
transfer money or property to his or her grandchild without transferring it to
the grandchild’s parent first, thus skipping a generation of estate tax
liability. However, such transfers will incur an astronomical generation-skipping
tax (GST) rate of 40% on the value of the transferred money or property that
exceeds the $11.8
million exemption, per the Tax Cuts and Jobs Act (TCJA) of 2018. Put
simply, an individual’s generational assignment has remarkable tax
implications.

            The
collision between traditional estate law notions and current tax code begets
the question: what is the generational assignment for children born
posthumously by ART? The Internal Revenue Code offers rudimentary guidance:

• 26 U.S. Code § 2651(f)(2) provides that if an estate or trust has an interest
  in property, each individual having a beneficial interest in such entity shall
  be assigned to a generation.
• § 2651(f)(1) provides that when an individual is
  assigned to more than one generation, he or she is assigned to the youngest
  such generation.
• §
  2651(d)(2) states that the GST applies to gifts or transfers made to
  individuals at least 37.5 years younger than the donor, meaning that the
  individual need not be a lineal descendant.
• §
  2651(e) creates an exception for persons with a deceased parent, stating that
  if an individual’s
  parent who is a lineal descendant of the donor is dead at the time of the
  transfer, such individual shall be treated as if she was a member of the
  generation which is 1 generation below the lower of the transferor’s generation
  (i.e., a grandchild).

            Consider
a parent
who seeks to use the cryopreserved eggs, sperm or embryos of a deceased child
to give life to his or her own grandchildren. To what generation does that
conceived child belong? Would the child be the child of the parent or would the
child be the grandchild? Would the predeceased parent exception apply? Would § 2651(f)(1)
treat such a child as a grandchild? If the reproductive material was preserved
for enough time, perhaps the 37.5-year threshold would trigger a generational
shift regardless.

             The staggering legal uncertainty surrounding
ART signals courts and legislatures to adopt reliable methods of administering
the inheritance rights of children conceived by evolving technology. Without
sophisticated models, fiduciaries are left stretching age-old principles of
estate law to fit the needs of unimaginable and ever-changing family
structures.

As
the 2020 presidential election draws closer, the conversation of health care
spending has continued to intensify, particularly when it comes to the price of
prescription drugs. A recent poll found that the #1
and #2 domestic concerns for Democrats and Republicans were to
lower the cost of health care and reduce the price of prescription drugs,
respectively.

            There are several competing proposals in Congress to
lower the cost of prescription drugs, as both Democrats and Republicans attempt
to craft competing strategies. Last summer, Senators Chuck Grassley (R-IA) and
Ron Wyden (D-OR), the Chairman and Ranking Member of the Senate Finance
Committee, introduced S.
2543, the Prescription Drug Pricing Reduction Act (PDPRA). This bill would impose
a yearly cap on how much manufacturers raise their list prices and establish a
100 percent rebate on any increases that rise above that level. In December,
House Democrats passed H.R. 3, the Elijah E. Cummings Lower Drug Costs Now
Act, that would permit the Department of Health and Human Services (HHS) to
negotiate the price of certain prescription drugs offered under the Medicare
Part D program. The bill also integrates provisions in S. 2543 on inflation
caps but adds an additional provision that retroactively penalizes price
increases above the rate of inflation going back to 2016. In December, House
Republicans introduced competing legislation to House Democrat proposals, H.R.
19, the Lower
Costs, More Cures Act. This bill stripped out proposals
related to drug negotiation and inflation caps and integrated several provisions
from previously introduced previous draft drug pricing legislation, such as
increasing generic drug entry to market and modernizing the benefit structure
under Part D to lower annual out-of-pocket costs for eligible seniors. Five
Senate Republicans, including the current chairman of the Senate Budget
Committee and likely future chairs of the Senate Finance Committee and Senate
Committee on Health, Education, Labor & Pensions (HELP), introduced companion
legislation to H.R. 19 for consideration in the
Senate.

            It is unlikely that any of the proposed drug pricing
proposals will become law in 2020, as Senate Majority Leader McConnell has
declared H.R. 3 “dead
on arrival.” The Trump Administration has expressed a preference
for S. 2543, but the bill has run into difficulties
among Senate Republicans, who have raised concerns about the proposed inflation
caps on price increases. Signaling some concern about the influence of
prescription drug pricing on the 2020 presidential election, Senator Martha
McSally (R-AZ), who is in a contentious reelection bid, recently introduced the
Lowering
Prescription Drug Prices for America’s Seniors and Families Act. If passed, the
legislation would permit HHS to negotiate the price of prescription drugs
covered under Part D, but only after those drugs lose their patent exclusivity
and do not have any market competition. Congress has had some recent bipartisan
success in drug pricing legislation, including the Creating and Restoring Equal
Access to Equivalent Samples (CREATES) Act in the FY20
spending bill. The CREATES Act requires brand-name
manufacturers to provide samples to generic drug manufacturers, which could
increase competition among products. The last vehicle for any drug pricing
proposals to be signed into law would be as part of a health
care extender package, whose funding is set to expire on May 22^nd.
There are some bipartisan proposals that may be included in this package,
particularly a redesign of the Part D benefit structure, which all competing
drug pricing bills reform to some degree.

            President Trump has been under significant pressure to
counter Democrat claims that his administration has failed to make meaningful
steps to lower the price of prescription drugs. Many of his regulatory
proposals have faced challenges in the courts or the administration
has chosen not to finalize those initiatives. Proposals by presidential
candidates Senator Bernie Sanders (I-VT) and former Vice President Joe Biden
support greater government intervention in prescription drug pricing, with both
candidates supporting
direct negotiations with manufacturers on pricing. Given the Supreme Court’s decision
to hear a new challenge to the validity of the Affordable Care Act (ACA),
health care will likely continue to be a pressing issue to voters in upcoming
elections.

Solitary confinement, or the practice of isolating incarcerated people
in a cell for up to 23 hours a day, is a controversial practice often reserved
for punishing the bad behavior of adult inmates. Both psychologically and
emotionally damaging, the research on solitary confinement as an effective
disciplinary measure is limited. Its usage is especially dangerous for
juveniles and has been prohibited in many
states. So why does this practice persist despite the risk
of permanent damage to the developing adolescent brain?

The answer is complicated. In states lacking policies that prevent
minors from being sentenced to adult facilities, juveniles can be housed with
adult inmates and are often immediately
victimized upon entry. Youth incarcerated under these conditions are more
likely than any other subset of the American prison population to suffer
sexual violence. Incarcerated youth are also 36 times more
likely to commit suicide than youth housed separately from adult populations.

Considering these statistics, in 2003, Congress passed the Prison Rape
Elimination Act that aimed to curb instances of sexual assault
in all correctional facilities. It took the Department of Justice nine years to
approve and begin implementing the standards established by the National Prison
Rape Elimination Commission. The PREA contains a provision requiring “sight
and sound separation,” or mandatory segregation of inmates under the
age of 18 from older prisoners. While this provision can be satisfied by
measures such as constant supervision or preventing minors from sharing cells
with adults, it sometimes manifests in isolation as a penalty for minors, which
is not wholly prohibited.

The Justice
for All Reauthorization Act of 2016 imposed a six-year deadline on states
to fully comply with PREA standards. Faced with the option of either
losing federal grant funding or exhausting the designated prison
funding they receive from the Department of Justice for alternative-compliance
efforts, some facilities subject youth to solitary confinement instead. The
majority of the youth detainees, already deprived of the beneficial
rehabilitative programming they
likely would receive at a youth facility, are non-violent
offenders.

Amid the debate over the constitutionality of solitary confinement,
then-President Barack Obama announced a ban on the practice for juveniles in
the federal prison system in 2016. As of January 2020, seventeen
states as well as the District of Columbia limit or prohibit solitary
confinement for minors. Other states would do well to follow suit. Not only is
solitary a poor solution, but it makes incarcerated minors more likely to
experience depression
and anxiety, especially among those already suffering from trauma or mental illness
at the time of conviction. Exacerbating the conditions that contribute to youth
incarceration rates will worsen rates of recidivism.

This reality is particularly troubling for minors forced into solitary
confinement for safety reasons rather than as a disciplinary measure. Solitary
is categorized in two ways: disciplinary
or administrative segregation. Administrative segregation is
the inverse of what youths face; it is intended to isolate an inmate who is
deemed to pose a threat to the rest of the population. Instead of using this
safety measure to isolate predators, the potential victims are isolated
instead. The effects of prolonged isolation pose physiological
threats to juvenile development. The prefrontal cortex, the area of the brain
primarily responsible for impulse control and decision-making, is still
developing while these minors are in isolated lock-up. The cognitive
disturbances, psychosis, and sleep deprivation (which
can all accompany solitary confinement) may permanently inhibit these brain
functions in incarcerated youth. When the mental
health needs of minors are not being met in adult facilities, hope for
rehabilitation is significantly reduced.

Sexual violence against minors in adult facilities must be addressed through
comprehensive reform and preventative measures. However, isolating juveniles in
solitary confinement is not an acceptable way to achieve PREA compliance. In
fact, due to the health risks associated with this practice, it may be just as
dangerous as housing minors and adults together. One productive solution to
this problem would be taking precautions around adolescent brain malleability,
such as assessing evidence which supports the benefits of raising the age
of criminal responsibility. 

If we operate a separate legal system for minors in this country, why
are we undermining it by allowing them to end up in the same place as adult
offenders?

Since the beginning of 2020, the Centers for Disease Control
Prevention (CDC)
has been mounting a response to a respiratory disease, that, at present, has
been declared a public health emergency in 80 countries, including the US. The
SAR-CoV-2 virus, also known as the Coronavirus (COVID-19), has elicited the
concern and attention of public health authorities, the healthcare community,
and the public-at-large. As the Coronavirus continues to grow globally and
begins to emerge through cases in parts of the US, the greatest dilemma is who
and what to believe. Social media has exploded over the recent conflicts in
reporting between leaders in government and public health officials.

Americans should be concerned about the credibility and
timeliness of reporting as this emergency continues to trend in the news. Here
are some tips for those of you want to know if Coronavirus is happening the way
it’s being reported.

• Consider the source. There are many internet and
  social media outlets reporting on every facet of news, so it is easy to be
  compelled by a flashy headline or a credible name reference. An agency like the
  CDC and organizations such as the World Health Organization (WHO) are tasked
  with protecting the health of the public nationally and globally, and in many ways
  are responsible for the preparedness of their respective officials and
  effectiveness of subsequent responses at every level. Specifically, the CDC, in
  collaboration with the WHO, confirmed COVID-19 emerged as a virus spread
  by person-to-person contact—and was first detected in travelers from the Wuhan
  Province of China.

• Remember news changes rapidly. Try not to get
  hung up on the evening news or trending social media updates about the virus,
  because these are likely to change within hours (sometimes minutes). Since
  January 21, the WHO released 42 “situation
  reports” on the Coronavirus, providing
  the most up-to-date and accurate developments concerning the virus. The purpose
  of these reports is to monitor the number of 
  confirmed cases and deaths globally, and to provide the public with
  routine updates on the WHO’s efforts to deliver supplies to support the global
  response to the Coronavirus. Similarly, the CDC continues to provide health
  notices to debunk the fear and stigma around the origin of the virus and the
  severity of the risk of its spread. Ultimately, you should expect to see
  changes in travel patterns, stories about the increased use of protective gear,
  and local and state officials making regular statements to the public.

• At a White House Press Conference last month,
  Vice President Mike Pence made a statement on the impact
  of Coronavirus in America. Pence reported the risk to Americans as “low” while
  the incidence of Coronavirus grows in different regions of the country. Pence
  also assured Americans that the administration rolled out a new Coronavirus
  Taskforce to streamline information to the public and coordinate efforts
  with partnering countries to track the progress of the global response. Nonetheless,
  CNN reports that the CDC urges Americans to prepare themselves for the worst. The
  report goes on to suggest how daily life will change in the face of a
  Coronavirus epidemic. CNN reports an uncertain future based on conflicting
  remarks during the White House Press Conference.

• Observe standard precautions. While the risk
  remains low, Americans are planning for the worst. California
  has declared a state of emergency after a recent Coronavirus-related death.
  Moreover, NBC
  News reports that President Trump signed an $8 billion spending package for
  CA to use in wake of the virus outbreak. To date, states affected by the virus
  have begun rolling out guidelines for treatment and possible quarantine of
  patients as new cases emerge. For instance, local health authorities in New
  York have implemented screening procedures for citizens returning to the US
  from countries affected by Coronavirus. Other states continue to publish
  statements of their efforts to prevent the transmission and spread of the
  Coronavirus through universities and schools in various communities.

What should be taken from the CDC and other state and local
health authorities is that you should observe standard precautions, which can
reduce the transmission of the virus. Health.gov
posted a simple statement about preventing human-to-human spread of the virus by
suggesting washing hands, covering mouths, and staying home if you’re sick. In
the wake of uncertainty of the trajectory of the virus, Americans can be
certain that our coverage of and reporting on the Coronavirus will be driven by
how the administration, health authorities, and media want to frame the
national and global response.