Physicians and Pharmacists Concerned Over Post Dobbs State Laws Limiting Independent Medical Judgment

On September 8, 2022, the American Medical Association (AMA), American Pharmacists Association (APhA), American Society of Health-System Pharmacists (ASHP), and National Community Pharmacists Association (NCPA) issued a press release expressing their concern “about state laws that limit patients’ access to medically necessary medications and impede physicians and pharmacists from using their professional judgment.” The concerns stem from the vague and imprecise language in laws, which prohibit prescribing and dispensing an “abortion-inducing drug” or comparable terms. There are many medications today, that while they may have the effect of inducing an abortion, maybe the best medical option to treat an unrelated medical condition. For example, “methotrexate can be used off-label for the termination of intrauterine pregnancy and is also approved and used off-label for numerous indications such as cancer and ectopic pregnancy along with being commonly prescribed as the first-line treatment of inflammatory diseases such as arthritis.” Statement on state laws impacting patient access to necessary medicine, Sept. 8, 2022, p. 2. The concern is whether the statutory language is only intended to prohibit the prescribing and dispensing of the medication to induce abortion or is it intended to prohibit the prescribing and dispensing of any medication that is known to induce an abortion?

The press release concludes with a call for state policymakers to “ensure through guidance, law or regulation that patient care is not disrupted and that physicians and pharmacists shall be free to continue to practice medicine and pharmacy without fear of professional sanction or liability.” Id.

Source: American Medical Association

Federal Judge Ruled Against ACA Coverage for HIV and Preventive Service

Judge Reed O’Connor ruled on September 7, 2022, that a key part of the Affordable Care Act (ACA) requiring private insurance plans to cover, free of charge, drugs that prevent HIV infection violates both federal law and the Constitution. In determining the provision unconstitutional, O’Connor found that U.S. Preventive Services Task Force members (basically the experts that decide which services need to be covered under ACA plans) are unconstitutionally appointed and preventive services, including HIV prevention, are unconstitutional. In 2018 Judge O’Connor ruled that the ACA was unconstitutional, a ruling later overturned by SCOTUS. The judge found that the Task Force had to be appointed by the President. The judge further ruled that the provision “could infringe upon the rights of employers under a law called the Religious Freedom Restoration Act.” Braidwood Management Inc. v. Xavier Becerra, Case 4:20-cv-00283-O, filed 09/07/22.

Plaintiffs in Braidwood argued they should not have to pay for or buy coverage that includes “PrEP drugs, contraception, the HPV vaccine, and the screenings and behavioral counseling for [sexually transmitted diseases] and drug use.” The order did not mandate a particular form of relief, instead, requested the parties provide additional briefing on various issues including “the scope of relief, standing for the remaining Plaintiffs as it relates to the scope of relief, and the claims relating to the contraceptive mandate.” The court ordered a status report by September 9, 2022, to include the remaining issues to be decided and a proposed schedule for the remaining briefing.

An analysis by the Robert Wood Johnson Foundation in July 2022 found that overturning the ACA preventative mandate could affect nearly 168 million Americans.

Source: The Hill

States Increasingly Expanding Medicaid Coverage For New Mothers

The AP (9/5, Murphy) reported states across the US “are making it easier for new moms to keep Medicaid in the year after childbirth.” However, “tight government budgets and the program’s low reimbursement may ultimately limit this push or make it hard for women with extended coverage to find [physicians].” Washington, DC, and 23 states “have said they will extend that coverage for a full year postpartum,” and “several more states are planning to do so.” The “extensions will start helping people after the federal government’s COVID-19 public health emergency ends because states are required to keep patients enrolled during the emergency.”

A provision in the American Rescue Plan Act of 2021 provides new options for states to extend Medicaid postpartum coverage for 12 months through a state plan amendment. Effective April 1, 2022, this option is available for five years. As of September 9, 2022, 26 states, including DC, have implemented the 12-month extension (includes FL, SC, TN, and NC); eight states are planning the extension (including AL, GA, and DE); two states have proposed limited coverage extension and the remaining 14 states have not acted (includes MS).

Sources: AHLA Health Law Daily, Kaiser Family Foundation

Walmart, UnitedHealth Group Partner to Provide Preventive Health Care For Seniors

As Reuters reported on September 7, 2022, Walmart and UnitedHealth Group “are planning to team up to provide preventive care for people aged 65 and up, and virtual health care services for all age groups, the companies said on Wednesday.” This 10-year partnership will represent “Walmart’s latest push into health care and could help the retail giant better compete with CVS Health and Walgreens Boots Alliance.” Under the terms of the partnership, the two companies “will target common ailments among aging Americans such as heart disease and diabetes.”

Modern Healthcare (9/7, Berryman, Subscription Publication) reports, “The initiative will begin in January at 15 Walmart Health locations in Florida and Georgia before expanding elsewhere, and the partners project it eventually will serve hundreds of thousands of patients.”

Sources: AHLA Health Law Daily, Modern Healthcare, Reuters

FTC Urges State Lawmakers to Repeal Certificate Of Public Advantage Laws

RevCycle Intelligence (9/6, Bailey) reports, “The Federal Trade Commission (FTC) has urged state lawmakers to repeal Certificate of Public Advantage (COPA) laws, asserting that the agreements allow otherwise illegal hospital mergers to bypass antitrust laws.” According to the agency, “COPAs aim to replace competition with state oversight and limit FTC’s ability to challenge hospital mergers that are likely to harm patients and employees.” In its policy paper, the FTC wrote, “Mergers that lead to lower prices or better health outcomes for patients are unlikely to violate antitrust laws and thus would not require COPAs to mitigate anticompetitive harms.”

Generally stated, the purpose of a COPA is to allow state action to shield cooperative agreements between health care providers that are beneficial to the state’s citizens when the agreements may otherwise violate state and federal antitrust laws. Mississippi, Florida, Tennessee, and South Carolina have COPA laws. North Carolina has repealed its COPA law.

Sources: Federal Trade Commission, RevCycle Intelligence

Biden Administration Eyeing Annual COVID-19 Vaccinations as Updated Boosters Roll Out

The Washington Post (9/6, Sun) reports White House COVID-19 Response Coordinator Dr. Ashish Jha “said Tuesday the newly reformulated Omicron-targeting boosters mark an ‘important milestone’ in the U.S. pandemic response, moving the country to a point where a single annual coronavirus shot should provide a ‘high degree of protection against serious illness all year.’” Such “cadence would be similar to that of the annual flu shot, which could be administered at the same time.”

Bloomberg (9/6, Griffin, Baumann, Wingrove) reports Biden Administration “health officials held a briefing Tuesday after regulators cleared the new generation of coronavirus inoculations and threw open eligibility – calling on people age 12 and older to get another dose if they haven’t had one in the past two months.” COVID-19 “vaccinations will likely shift to an annual injection – tailored to the latest strains – for the majority of the population, with more frequent doses offered for higher-risk people, the officials said.”

These Covid-19 boosters are “bivalent”—they are designed to protect against two strains, SARS-CoV-2 and the Omicron sub-variants BA.4/BA.5. The CDC recommends the booster. People 12 and older can receive the Pfizer-BioNTech and 18 and older can receive the Moderna. You have to have been vaccinated to receive the bivalent booster. You should wait at least 2 months after receiving the final dose of your primary vaccine series to get the bivalent booster.

Source: AHLA Health Law Daily (Sept. 7, 2022), Washington Post, Bloomberg, StatNews.com

For more information on these Health Care “Hot Topics”, please contact M. Elizabeth Crum in our Columbia, SC office at (803) 753-3240 or lcrum@burr.com.