Category: Blog

On Monday, March 30, GNC reached an agreement with the New York Attorney General requiring testing standards for their “Herbal Plus” supplements that exceed current Food and Drug Administration (FDA) requirements. This agreement comes almost two months after the NY Attorney General sent letters to GNC, Walmart, Walgreens, and Target for allegedly selling store brand herbal supplements with ingredients that could not be verified or ingredients that were not listed on the labels.

GNC has been fighting lawsuits that have resulted from the New York Attorney General’s announcement because the company believes the lawsuits to be “without merit.” Despite this, GNC reached the agreement with the New York Attorney General to give its consumers “even greater confidence” in its products.

Under the agreement, GNC will perform DNA barcode testing on all “active” plant ingredients listed on labels, and will test for contamination with allergens before and after production. GNC will also make these tests standard procedure before placing their products on any of their stores nationwide. Furthermore, the company will introduce new policies over the next 18 months and submit semi-annual safety reports to the New York Attorney General’s office. The agreement confirms that GNC’s products are in full compliance the FDA’s Current Good Manufacturing Practices. Finally, the agreement recognizes GNC’s full cooperation with the attorney general. As a result of its updated testing, GNC has restored its “Herbal Plus” products to its shelves.

This move is a major shift in the lightly-regulated market for herbal supplements. The herbal supplement industry is estimated to be worth $60 billion worldwide. However, herbal supplements are not subject to the same level of scrutiny as drugs are by the FDA.

The New York Attorney General’s actions have not only caused GNC to pay attention, but have caused other Attorney Generals to take note as well. In fact, on April 2, a group of 14 state Attorneys General asked the U.S. Congress to investigate the herbal supplements industry. The Attorneys General sent their letter to Kansas Senator Jerry Moran and Pennsylvania Representative Joe Pitts, chairmen of subcommittees on product safety and health. The Attorneys General asked the subcommittees to work with the FDA to determine whether the agency should develop enhanced quality assurance programs and other safety requirements. The attorneys general stated “we believe the safety and efficacy of these supplements is a matter of deep public concern across the country,” and they urged “swift action.”

While industry officials and others say the industry is already sufficiently regulated on a federal level, it is time to re-think federal regulation of herbal supplements. Consumers have a right to know what they are purchasing and putting in their bodies. Most importantly, consumers deserve to know that the claims on these products are validated and that these products are safe.

On March 4, 2015, the Supreme Court participated in a divided and heated argument addressing the issue of whether the Internal Revenue Service (IRS) may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

The Affordable Care Act (ACA) is also known as Obamacare, which is a law enacted to ensure access to affordable health insurance for all Americans. To achieve this, Obamacare offers consumer discounts, or tax credits, on government-sponsored health insurance plans by expanding Medicaid to include more consumers who cannot afford health care. To receive discounts, one’s household income must be between one and four times the Federal Poverty Level, a government regulated number used to determine the minimum amount of money needed for basic living expenses. These credits can be applied to premiums to lower monthly insurance bills or they can be declared on tax returns at the end of the year. For individuals whose income does not fall within that range, the option to purchase a plan on the federal insurance marketplace or through state exchanges is still available, but he or she will not get any discounts.

King v. Burwell, the case addressing this issue, centers on the language of the ACA. The statute approved federal subsidies to help Americans purchase health insurance on state exchanges. Instead of setting up their own exchanges, some states permitted the federal government to do so for their residents. Conservatives, contesting Obamacare, argue that those states are now being illegally subsidized, because the statute’s language specifically applies to state exchanges. Liberals, supporting Obamacare, argue that the law contains a typo regarding this provision, and the subsidies should continue.

After eighty minutes of controversial debate at the Supreme Court, it seemed that Obamacare’s future could depend on what was conveyed to the states when the Act was passed, whether tax credits could be offered in state and federal exchanges, or only in state exchanges. Under the first interpretation, the statute survives. Under the second interpretation, the law could still survive if the Supreme Court judges find that interpretation unconstitutionally coercive.

The plaintiff, challenger of Obamacare, argued that the issue rests on statutory interpretation, and the statute’s language does not include federal exchanges in its provision addressing the application of tax credits. The Supreme Court’s liberal wing responded by asserting that they do not just look at a few words, but the whole text to provide context. Justice Scalia then responded that the law “means what it says” even if that generates negative consequences.

Justice Kennedy, whose vote may decide the case, acknowledges that the plain reading of the statute may support the argument that tax subsidies are only permissible in state exchanges, but that that interpretation may be unconstitutional. Suggesting that the statute may be ambiguous enough to give the IRS deference to allow tax credits in federal health exchanges, Kennedy also recognized that authorizing the IRS that power might be a “drastic step” since billions of dollars is at risk.

Perhaps the statute should be expanded to include federal exchanges because the purpose of Obamacare is to make health insurance more affordable for those less fortunate. By refusing to incorporate federal exchanges, many citizens will not be able to participate in tax credits only because their state decided not to set up its own exchanges. However, if federal exchanges are included, the government may not be able to afford to offer everyone tax credits. The court’s decision is expected by late June, and will decide whether seven million low and middle-income people in around forty states will continue to receive discounts to aid them in affording health insurance. If the Supreme Court rules that the subsidies in federal exchanges were not authorized by the Act, most of those people will no longer be able to purchase health insurance, which could cause insurance markets in those states to downfall.

On January 20, 2015, in his State of the Union Address, President Obama launched a new Precision Medicine Initiative. This research initiative is a bold new effort to improve how we treat disease and how we cure diseases like cancer and diabetes. The Precision Medicine Initiative will pioneer a new model of patient-powered research that aims to accelerate biomedical discoveries and provide clinicians with new tools, knowledge, and therapies to select which treatments will work best for which patients. Personalized medicine is often described as providing “the right patient with the right drug at the right dose at the right time.”

Currently, medical practitioners follow a trial-and-error approach when treating patients. In other words, if a patient has a disease, his or her doctor will prescribe a treatment plan based on general information, and re-assess after a few weeks. If the treatment is not working, the doctor will change some variable in the plan, and wait a few more weeks to see if there is any improvement. This approach can lead to patient dissatisfaction, adverse drug responses and interactions, and poor adherence to treatment regimens by the patient. While this may seem bleak, there have been rapid developments in a variety of medical fields like genomics, medical imaging, and computational biology that are making it possible for scientists and doctors to personalize diagnosis and treatment of diseases. Precision medicine gives clinicians tools to better understand the complex mechanisms underlying a patient’s health, disease, or condition, and to better predict which treatments will be most effective. I believe the Precision Medicine Initiative is just what is needed to continue encouraging creative approaches to precision medicine and build the evidence base necessary to guide clinical practices.

The main objectives of this initiative are:

• An increase in better cancer treatments: The National Cancer Institute (NCI) will accelerate the design and testing of effective, tailored treatments for cancer by expanding genetically based clinical cancer trials, exploring fundamental aspects of cancer biology, and establishing a national “cancer knowledge network,” that will generate and share new knowledge to fuel scientific discovery and guide treatment decisions.
• Creation of a voluntary national research cohort: The National Institute of Health (NIH), in collaboration with other agencies and stakeholders, will launch a national, patient-powered research cohort of one million or more Americans who volunteer to participate in research. Participants will be involved in the design of the initiative and will have the opportunity to contribute diverse sources of data – including (but not limited to) medical records, profiles of patient genes, chemical makeup, and environmental and lifestyle data.
• Commitment to protecting privacy: The White House will launch a multi-stakeholder process with Health and Human Services (HHS) and other Federal agencies to solicit input from patient groups, bioethicists, privacy and civil liberties advocates, technologists, and other experts to identify and address any legal and technical issues related to the privacy and security of patient data.
• Regulatory modernization: The Initiative will review the current regulatory landscape and work with the Food and Drug Administration (FDA) to determine whether changes are needed to support the development of this new research and care model.
• Public-private partnerships: The Obama Administration will forge strong partnerships with existing research cohorts, patient groups, and the private sector to develop the infrastructure that will be needed to expand cancer genomics, and to launch a voluntary million-person cohort.

Key Investments to Launch the Precision Medicine Initiative:

1. $130 million to NIH
2. $70 million to NCI
3. $10 million to FDA
4. $5 million to The Office of the National Coordinator for Health Information Technology (ONC)

In sum, the Precision Medicine Initiative is a great endeavor and its greatest benefits will likely be seen many years in the future. However, this initiative will revolutionize the practice of medicine, and give patients a better chance at good health than they have ever had.

 

On February 3, the New York State Attorney General’s Office accused four major retailers of selling fraudulent and potentially dangerous herbal supplements, demanding that they cease the sale of these products. Law enforcement officials investigated herbal supplements sold at GNC, Target, Walgreens and Wal-Mart. The investigation found that four out of five products tested did not contain any of the herbs on their labels. The pills only contained cheap fillers like powdered rice, asparagus, and houseplants. In some cases, the supplements consisted of common allergens, such as wheat-products.

Health experts welcomed the investigation, having long complained about the quality and safety of dietary supplements. The Dietary Supplement Health and Education Act (DSHEA) of 1994 exempts substances from the requirements to demonstrate safety and effectiveness and from the Food and Drug Administration’s (FDA) pre-market approval. In contrast, the European Union regulates dietary supplements and requires a demonstration of safety before they can be sold. On the other hand, the FDA strictly regulates pharmaceuticals. Under 21 U.S.C. § 355, a provision of the Federal Food, Drug, and Cosmetic Act, the FDA requires that new drugs demonstrate safety and effectiveness through scientific evidence before receiving market approval.

In the past, the FDA has issued warning letters to manufacturers of dangerous supplements requiring them to either change the recipe of their supplement or remove their product from the market. In the majority of these cases, the FDA has received several reports of adverse events from consumers. For example, in November 2014, the FDA issued a warning letter to V26 Slimming Coffee because it contained sibutramine, a controlled substance that was removed from the market in October 2010 for safety reasons. Consumers may look at the FDA’s Consumer Updates web site for updates on recalls and alerts. However, this move by the New York State Attorney General’s Office is the first time a law enforcement agency has threatened the biggest retail and drugstore chains with legal action for selling “deliberately misleading herbal products.”

Some of the investigation’s findings at these retailers included:

1. Walgreens: store brand of ginseng pills contained only powdered garlic and rice;
2. Walmart: ginkgo biloba contained no ginkgo biloba, but radish, wheat, rice, and mustard;
3. Target: six herbal products tested negative for the herbs on their labels but did contain powdered rice, beans, peas and wild carrots; and,
4. GNC: pills contained unlisted ingredients used as fillers like powdered peanuts and soybeans.

Regulating supplements has been hotly debated in Congress. Senator Orrin Hatch (R-UT), the sponsor of DSHEA, has successfully opposed potential amendments that would require supplement makers to register their products with the FDA. In 2013, Senators Richard Blumenthal (D-CT) and Richard Durbin (D-IL) introduced the Dietary Supplement Labeling Act, which would require dietary supplement manufacturers to register their products with the FDA and to disclose known risks of any ingredients on their labels. However, this bill remains in the Committee on Health, Education, Labor, and Pensions (HELP).

Industry representatives dispute the testing methods used in the investigation, arguing that only a handful of fringe companies have caused these problems. However, New York’s investigations targeted store generic brands at national drugstores and retail giants, suggesting that these problems are pervasive and extensive. Dr. Pieter Cohen, an assistant professor at Harvard Medical School and an expert on supplement safety, stated, “If this data is accurate, then it is an unbelievably devastating indictment of the industry.”

Currently, tests are being conducted to confirm the results of New York’s investigation. Until the results are released, the debate continues. Consumers should be wary that the supplements they are taking may not contain the ingredient listed on their labels. James Hamblin, a physician and senior editor at The Atlantic, notes that even if these supplements do not contain their listed ingredients, there may be a legitimate placebo effect to taking these supplements. However, it is better for the public to know what’s in their supplements, rather than letting this “apparent institutionalized fraud” continue. Consumers have a right to know what is in their products, what they are putting in their bodies, and what they are spending their money on. The Dietary Supplement Labeling Act is a commendable step in the right direction, and the Senate HELP Committee should move it forward.

 

A warehouse fire in the Williamsburg neighborhood of Brooklyn, NY provided yet another compelling argument for the need for protected health information to be accessible through an Electronic Health Record (EHR) system. The federal government, through the Department of Health and Human Services (HHS), among other entities, have released various statements highlighting the importance of developing EHRs. The fire, which burned a Williamsburg warehouse on January 31, 2015, resulted in innumerable pieces of personal health information (PHI) littering the streets of New York. The fire, which began on a Saturday, still burned on Monday.

According to EHR Intelligence, “recovery specialists [continue to] comb the streets and the East River for fragments of papers with personal health information, social security numbers, and bank account details exposed to the public.” Moreover, EHR Intelligence reports that North Shore-Long Island Jewish Health System, New York-Presbyterian Hospital, NYU Langone Medical Center, and Mount Sinai Health System stored records and patient information at the warehouse. Luckily, all the organizations, according to the New York Times, had copies of the patient records within its respective EHR systems.

Fortunately with responsive recovery teams and on the ground personnel the warehouse fire did not result in a massive breach potentially affecting thousands of patients, but it did illustrate the importance of having effective EHR systems and also the need to store patient data in more than one place. Imagine if any of the health care providers storing data at the warehouse did not have an EHR system. Could you imagine mitigating that situation? What would you tell patients? How would HHS deal with the breach?

The Office of the National Coordinator, within HHS, has numerous resources available to providers to help implement an effect EHR system. Moreover, the ONC provides additional information about the importance of EHR systems to improving patient care. Other than helping to reduce potential breaches, EHR systems are so popular because they help further the goal of interoperability. Interoperability is on the national health care agenda and has support from both Congress and the White House. President Obama’s proposed fiscal year 2016 budget allocates $78 million to ONC, which is a $17 million dollar increase since ONC’s inception, to help further the interoperability mission. Having an effective EHR system helps to promote the interoperability message in that, after the initial interoperable framework is laid by the federal government, it will be crucial for providers to be well equipped with systems that can easily interact with one another. EHR systems allow a patient with various providers to receive more coordinated care. Moreover, EHR systems can make it much less burdensome for individual patients to access their personal health records.

While the weekend warehouse fire is a tell tale example of the necessity for electronic record keeping, the federal government is also invested in the electronic systems to help further an even more important goal: increasing the quality and effectiveness of health care services.

Since the Supreme Court ruled against the Affordable Care Act’s mandatory Medicaid expansion in 2012, twenty-nine states and the District of Columbia have expanded the program to individuals at or below 138% of the Federal Poverty Index (FPI), or approximately $16,000 for an individual per year. Resistance to the expansion has largely come from states with Republican governors and/or legislatures. However, in December, three GOP governors moved to expand Medicaid in their states – Utah, Tennessee, and Texas. Indiana received Federal approval for its Medicaid plan the last week in January. While a big move in support of the President’s signature health care law, the proposals come with drawbacks that may negatively affect the effectiveness of the expansion.

The Utah expansion does not rely on Federal programs to insure its citizens. Adapting the Arkansas expansion plan, the Utah plan allows the State’s citizens to purchase private insurance with Federal funds rather than enrolling in the Federal Medicaid program. Utah’s program will cover nearly 100,000 residents over the next four years. Residents under 100% FPI continue their enrollment in traditional Medicaid while the “expanded” individuals (between 100-138% FPI) receive assistance to purchase private insurance or enroll in an employer-offered plan. The Utah plan touts $15 monthly premiums. However, the plan also poses a $50 penalty for every Emergency Room visit for a non-emergency situation in an effort to bring down health care costs. Notably, this adapted Medicaid expansion had to be approved by the Centers for Medicaid and Medicare Services (CMS).

Tennessee liked the plan behind Utah’s expansion. Medicaid expansion under these terms has been deemed a compromise between Republican and Democratic ideals. Gov. Bill Haslam has specifically stated that his 2015 proposal is not an expansion of the Medicaid program, but the “unveil[ing] of Insure Tennessee.” Early estimates predict that nearly 200,000 Tennesseans will be eligible for State assistance under the proposed expansion. Notably, Tennessean hospitals are largely in favor of the Expansion. The Tennessee Expansion does more than focus solely on making available funds to purchase private insurance, but also shifts bill-payment to an outcome-based method rather than fee-for-service. Representatives in Tennessee on all sides of the Expansion debate support the Governor’s decision to make insurance available through the proposed means. The proposals must still be approved by the Tennessee legislature and CMS.

The biggest potential win for the President’s health law is the state of Texas. Former Governor Rick Perry has been one of the most vociferous opponents of the Medicaid expansion. However, Governor-Elect Greg Abbott addressed the extremely controversial topic with state lawmakers in Houston. Working with CMS to expand Medicare could mean nearly $10 billion in Federal funds for Texas over the coming years. Texas has the most of any state to gain from the Medicaid Expansion. Nearly 950,000 Texans live between 100-138% FPI. The Kaiser Foundation believes these Texans represent approximately twenty-five percent of all Americans living in the “gap.” The Texas legislature has rejected the “traditional” Expansion, but the Governor-Elect’s meetings may indicate an alternative similar to those in Utah and Tennessee, though his office has yet to comment.

The approval of Indiana’s plan may encourage even more states to expand their Medicaid services. The Indiana plans extends coverage to nearly 350,000 low-income individuals and families. The plan requires enrollees to contribute to a health savings account, an effort to keep “personal responsibility” as part of the expansion. However, the plan comes with high penalties for missed payments, including up to six-month exclusions from the program. The plan also increases reimbursement rates, which were cut across the board by the Affordable Care Act. Indiana’s plan has already caught the attention of the Wyoming legislature.

The twenty-two states that are yet to expand the Federal program need to act quickly. The Affordable Care Act only covers 100% of any state’s expansion through 2016, covering only 90% of associated costs thereafter. Understandably, political and ideological differences will hamper Medicaid expansion in many states. However, Utah’s adaptation to the Medicaid expansion may allow well-meaning legislatures to not only follow their ideals but also act in the best interest of their citizens. In Tennessee, for example, the proposal allows the State legislature to provide expanded coverage while encouraging Tennesseans to take an active role and have more personal responsibility for their own health care.