By Doron Dorfman
On May 11, the U.S. Food and Drug Administration (FDA) announced that it is lifting its highly contested blood deferral policy for men who have sex with men (MSM, i.e., gay and bisexual men), colloquially known as the blood ban.
While this decision should be applauded as a step toward equality, the policy remains flawed and needlessly stigmatizing, as it excludes potential donors who use pre-exposure prophylaxis (PrEP), an antiviral regimen that prevents HIV infection from sex.
Last week, a federal judge in Texas dealt a blow to the Affordable Care Act’s preventative care requirements that private insurers cover services such as behavioral counseling, HPV vaccination, and pre-exposure prophylaxis for HIV/AIDS (PrEP). In Braidwood Management Inc. v. Becerra, Judge Reed O’Connor enjoined the enforcement of the preventative care coverage mandate.
Led by Braidwood Management Inc., the plaintiffs claimed that the preventive services requirements were unconstitutional, violating the Appointments Clause and the Nondelegation Doctrine. Further, they argued that requiring coverage of PrEP violates the Religious Freedom Restoration Act.
In siding with the plaintiffs, Judge O’Connor has jeopardized access to critical health care services, potentially affecting over 150 million insured Americans. The Biden administration was quick to challenge the ruling; on Friday, attorneys for the Department of Health and Human Services filed a notice of appeal.
To make sense of these developments, leading experts in health law policy analyze Judge O’Connor’s ruling below.
Read More
By Elizabeth Weeks
The most promising path forward in public health is to continue recognizing federal authority and responsibility in this space. I carefully choose “recognizing,” rather than “expanding” or “moving” because it is critical to the argument that federal authority for public health already exists within the federalist structure and that employing federal authority to address public health problems does not represent a dimunition of state authority. Rather than a pie, of which pieces consumed at the federal level necessarily reduce pieces consumable at the state level, we should envision the relationship as a Venn diagram, where increasing overlap strengthens authority for promoting and protecting public health broadly.
By Cathy Zhang
The COVID-19 Public Health Emergency (PHE) expires at the end of this week, with Department of Health and Human Services (HHS) Secretary Xavier Becerra expected to renew the PHE once more to extend through mid-July.
When the PHE ultimately expires, this will also trigger the end of the Medicaid continuous enrollment requirement, under which states must provide continuous Medicaid coverage for enrollees through the end of the last month of the PHE in order to receive enhanced federal funding. This policy improves coverage and helps reduce churn, which is associated with poor health outcomes.
After the PHE, states can facilitate smooth transitions for those no longer eligible for Medicaid by taking advantage of the full 12- to 14- month period that the Centers for Medicare & Medicaid Services (CMS) has established for redetermining eligibility.
In August 2021, CMS released guidance giving states up to 12 months following the end of the PHE to redetermine whether Medicaid enrollees were still eligible and renew coverage. Last month, CMS released new guidance specifying that states must initiate redeterminations and renewals within 12 months of the PHE ending, but have up to 14 months to complete them. The agency is encouraging states to spread its renewals over the course of the full 12-month unwinding period, processing no more than 1/9th of their caseloads in a month, in order to reduce the risk of inappropriate terminations.
By Cathy Zhang
Last week, on the heels of attacks on trans youth and their families in Texas, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a notice and guidance expressing support for transgender and gender nonconforming youth and highlighting the civil rights and privacy laws surrounding gender affirming care.
OCR all but names the Texas attacks as unlawful under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability by federally funded health programs or activities. It notes that for federally funded entities, restricting medically necessary care on the basis of gender — such as doctors reporting parents of patients to state authorities — “likely violates Section 1557.”
The guidance directs those who have been discriminated against on the basis of gender identity or disability in seeking access to gender-affirming health care to file a complaint through OCR. HHS can go further, however, by formally acknowledging that individuals have a legal right to enforce Section 1557 when they have experienced prohibited health care discrimination.
By Gregory Curfman
Within the coming months, the constitutional right to abortion, which has been in place for nearly 50 years, is likely to be overturned.
In this light, it is more crucial than ever that women have unfettered access to contraception at no charge. Accordingly, the Biden Administration should act now to return the Affordable Care Act’s (ACA) contraceptive coverage mandate to its status originally intended by Congress in 2010.
By Cathy Zhang
Open enrollment for the health insurance marketplace begins on November 1.
Among the options available to consumers will be short-term, limited-duration insurance (STLDI), also known as junk insurance plans. The Trump administration facilitated the proliferation of these cheap, underprotective plans in an attempt to undermine the marketplace, and the Biden administration has yet to reverse that policy.
As part of the Biden administration’s public effort “to restore and strengthen Americans’ access to quality, affordable health care,” the administration needs to take executive action to protect consumers and eliminate junk plans.
By Cathy Zhang
During the COVID-19 pandemic, ensuring widespread health coverage took on a new sense of urgency, leading many states to implement policies to address the longstanding problem of Medicaid churn.
Churn is a persistent problem in the U.S. health care system. Changes in health insurance coverage disrupt care and worsen self-reported health at significant rates, even for individuals who go from one insurer to another with no gap in coverage. Legislation enacted as a stopgap measure during the pandemic may present a path forward for securing more durable Medicaid coverage beyond the public health emergency.
By Elizabeth McCuskey
Health justice is the lodestar we need for the next generation of health reform. It centers justice as the destination for health care regulation and supplies the conceptual framework for assessing our progress toward it. It does so by judging health reforms on their equitable distribution of the burdens and benefits of investments in the health care system, and their abilities to improve public health and to empower subordinated individuals and communities. Refocusing health reform on a health justice gestalt has greater urgency than ever, given the scale of injustice in our health care system and its tragic, unignorable consequences during the coronavirus pandemic.
By Dessie Otachliska
The COVID-19 pandemic has shone a light on the underinsurance crisis that has long kept millions of Americans on the precipice of financial disaster — just one unexpected illness or injury away from bankruptcy.
A 2019 Gallup poll showed that 25% of Americans reported delaying treatment for serious medical conditions due to cost concerns — the highest proportion since Gallup first began asking the question in 1991. Even during the pandemic, when medical treatment could mean the difference between life and death, studies show that nearly 1 in 7 Americans would avoid seeking medical care if they experienced key COVID-19 symptoms because of fears associated with the cost of treatment.
These statistics are unsurprising, and the concerns they underscore well-founded: the average treatment costs for COVID patients with symptoms serious enough to require inpatient hospital stays range from $42,486 for relatively mild cases to $74,310 for patients with major complications or comorbidities.
In the pandemic context, hesitance to seek medical treatment due to fear of the associated cost has proved tragically fatal. Darius Settles died after being dissuaded from seeking further COVID-19 treatment due to his uninsured status. The Nashville, TN hospital where Settles originally received care had failed to disclose the possibility that his medical costs would be covered by the federal government. And, despite the availability of reimbursement funds, the hospital nonetheless sent his widow a bill for a portion of his treatment costs.