Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Are Employers That Ditch Mask Mandates Liable for COVID-19 Infections at Work?

By Chloe Reichel

Last week, in response to U.S. Centers for Disease Control and Prevention (CDC) guidance indicating that vaccinated individuals need not wear face coverings indoors, a number of states and businesses swiftly did away with indoor mask mandates.

Widespread criticism followed, focusing on the dangerous policy vacuum that now exists. The CDC has suggested unvaccinated individuals follow an honor system and continue masking — but such an honor system is difficult, if not impossible, to enforce.

In the absence of indoor mask policies, individuals face increased risk of exposure to the virus. And some groups are particularly at risk of contracting the virus now, including immunocompromised individuals, for whom vaccines may not confer protection, and children under the age of 12, for whom a vaccine has not yet been authorized.

To better understand the new guidance and its implications for workers who are no longer protected by mask mandates, I spoke with Sharona Hoffman, an expert in health and employment law. Hoffman is the Edgar A. Hahn Professor of Law, a professor of bioethics, and Co-Director of Law-Medicine Center at Case Western Reserve University School of Law. In our interview, Hoffman explained whether an employer may be held liable if an employee contracts COVID-19 after an occupational exposure, and highlighted other key issues to anticipate regarding COVID-19 and the workplace.

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a crowd of people shuffling through a sidewalk

What Makes a Bad Public Health Decision? And How Can We Make Good Ones?

By Jennifer S. Bard

What makes a bad public health decision?

What we’ve seen across both the Trump and Biden administrations is that relying on the CDC’s medical model of decision-making isn’t working. No matter how sound the underlying science or medicine, public health guidance cannot be effective if its target audiences don’t understand it and it’s impossible to deploy.

The recent U.S. Centers for Disease Control and Prevention (CDC) guidance suggesting that people who are vaccinated do not have to wear masks is an instructive example.

Reporters over the past few days have confirmed that this decision was made inside the CDC, by its director, without any notice to, let alone consultation of, the state and local health authorities, retailers, and schools that would have to implement it.

But the job of public health demands an approach that encompasses such groups. Unlike medical doctors (and practicing attorneys) who bear fiduciary duties to individual patients, public health professionals’ obligations are not to individuals, but to populations. And fulfilling these obligations is very hard. It’s one thing to tailor an intervention or craft an explanation for the person in front of you, and quite another to do the same for a community.

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Grafton, Illinois, USA, June 1, 2019 -Car submerged under flood water in small river town, Grafton, Illinois, as Mississippi River floods roads, businesses and houses. vehicle under water, men in boat

Bail Out Humans

By Christina S. Ho

This past year has sensitized us politically to government’s affirmative obligations, especially the duty to backstop health catastrophes in order to dampen the risks that ordinary people must bear. 

Our government bails out large risks in so many other arenas. Yet we too often fail to backstop the most human risk of all — our vulnerability to suffering and death. 

Throngs of scholars have described our deep tradition of government-sponsored risk mitigation to nurture favored private activities and expectations, and relieve those favored actors from catastrophes beyond what they could be expected to plan for. I have characterized this distinctive political role figuratively as one of “government as reinsurer.”

The federal government provides standard reinsurance for private crop insurers, virtually full risk-assumption for private flood insurance, guarantees for employer pension benefits, robust backstops for bank liquidity risks, FHA mortgage insurance and a federal secondary market to absorb the risks of housing finance.

In these arenas and more, statistically correlated or high-magnitude catastrophic losses are shed onto the state in order to smooth out and shore up the underlying private risk market. We have yet to commit similarly in the health care domain. 

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People protesting with signs that say "healthcare is a human right" and "medicare for all."

A Long View on Health Insurance Reform: The Case for an Employer Public Option

By Allison K. Hoffman

Historically, job-based health insurance coverage was the gold standard. It was broadly available to workers and was comprehensive. It covered the lion’s share of most services someone might need. 

Yet, job-based private health coverage has been in decline. Employers are struggling to maintain plans in the face of escalating health care prices, and indicating the need for government involvement to solve this problem.  

Even before the pandemic, a decreasing share of workers, especially lower wage workers, had health benefits through their jobs. The majority of the currently uninsured are workers, either those whose jobs do not offer them coverage, such as gig workers and part-time workers, or those who are offered coverage but cannot afford their share of the cost. Ironically, some of these workers become ineligible for Affordable Care Act (ACA) marketplace subsidies because they are offered job-based coverage. 

Even for those who have job-based coverage, health benefits have become less generous over time, leaving households vulnerable to unmanageable health care expenses. The average deductible for a worker-only plan has increased 25% over the last five years and 79% over the last ten years. 

To help address these shortcomings and challenges of job-based coverage, the Biden administration should offer employers a Medicare-based public health insurance option for their employee coverage. It would simultaneously offer an out for employers who want it, and start to build the foundation for a simpler, more equitable financing system down the road.

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Key Takeaways from Petrie-Flom Center Discussion on Vaccine Passports

As mask mandates fall to the wayside, COVID-19 digital health passes, often called vaccine passports, hold promise as a tool to verify whether individuals may enter a space without a face covering.

Vaccine passports, however, also pose a number of ethical and legal challenges. Panelists discussed these concerns during an April 28 webinar hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics titled, “Vaccine Passports: A Path to the New Normal?”

This article highlights key points made during the conversation.

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Game of whack-a-mole.

Stop Playing Health Care Antitrust Whack-A-Mole

By Jaime S. King

The time has come to meaningfully address the most significant driver of health care costs in the United States — the consolidation of provider market power. 

Over the last 30 years, our health care markets have consolidated to the point that nearly 95% of metropolitan areas have highly concentrated hospital markets and nearly 80% have highly concentrated specialist physician markets. Market research has consistently found that increased consolidation leads to higher health care prices (sometimes as much as 40% more). Provider consolidation has also been associated with reductions in quality of care and wages for nurses

In consolidated provider markets, insurance companies often must choose between paying dominant providers supracompetitive rates or exiting the market. Unfortunately, insurers have little incentive to push back against provider rate demands because they have the ability to pass those rate increases directly to employers and individuals, in the form of higher premiums. In turn, employers take premium increases out of employee wages, contributing to the growing disparity between health care price growth and employee wages. As a result, rising health care premiums mean that every year, consumers pay more, but receive less. 

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LONDON, UNITED KINGDOM- 1 APRIL 2015: A newspaper rack holding several international newspapers, such as The International New York Times, USA Today, Irish Times, Londra Sera and Corriere Della Sera.

Monthly Round-Up of What to Read on Pharma Law and Policy

By Ameet SarpatwariBeatrice Brown, Neeraj Patel, and Aaron S. Kesselheim

Each month, members of the Program On Regulation, Therapeutics, And Law (PORTAL) review the peer-reviewed medical literature to identify interesting empirical studies, policy analyses, and editorials on health law and policy issues.

Below are the citations for papers identified from the month of April. The selections feature topics ranging from the pre-market development times for innovative vaccines, to an assessment of FDA postmarketing requirements and commitments from 2009 to 2018, to an analysis of implementation challenges and potential effects of U.S. adoption of international reference pricing for prescription drugs. A full posting of abstracts/summaries of these articles may be found on our website.

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doctor holding clipboard.

Transformation of Behavioral Health Care Through Section 1115 Waivers

By John Jacobi

As the Biden administration works to improve health access and transform health delivery, behavioral health reform should be at the front of the queue.

People with severe mental illness and opioid use disorder are dying young for lack of routine health care. Much of the work that needs to be done in behavioral health is developed or developing at the state level. But the Biden administration has a powerful tool for encouraging state-level innovation in the § 1115 Medicaid waiver process.

Reform through state waivers

Section 1115 waiver authority permits the Department of Health and Human Services to approve pilots and demonstrations if they are found likely to promote the objectives of the Medicaid program. Waivers, which do not require Congressional or formal regulatory enactments, permit relatively rapid cycling of innovation, in contrast to the lumbering pace of legislative or regulatory change.

While applications for waivers originate with the states, presidents have set the agenda by signaling what categories of waivers will be looked upon favorably, offering the administration the ability to put its stamp on the development of care for low-income and disabled people.

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A pile of three surgical masks.

Public Health Law vs. Individual Advice: Why Discarding Indoor Mask Mandates Is a Mistake

By Jennifer S. Bard

The U.S. Centers for Disease Control and Prevention (CDC) announced today that fully vaccinated individuals no longer need to wear masks indoors or outdoors in most cases.

The agency has emphasized that this is merely guidance, and is not intended to affect public policy or to change practices of private companies. But it is naïve to imagine that health departments and private organizations will not make changes in response to the announcement.

There is a growing public wish to put COVID-19 behind us by eliminating visible signs that it still exists (e.g., mask wearing). But guidance driven by this magical thinking will cause unnecessary harm. Public health measures should protect the larger population, including those who cannot be or have not yet been vaccinated. This CDC guidance proffers individual advice at the expense of the goals of public health.

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Biden’s Early Focus: Durable and Attainable Private Insurance

By Zack Buck

Though health policy debates during the 2020 presidential primaries centered around expanding access to public health insurance programs (e.g., “Medicare-for-All”), the focus of the nascent Biden administration has been on making private health insurance more durable, not deconstructing it.

While these changes are likely to make private insurance plans more affordable and attainable, choosing to reinforce private insurance plans puts global systemic reform, the goal of many advocates, further out of reach.

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