Affordable Care Act

Group Gathering Signatures for the “Healthcare Quality Improvement Act”

A group called Healthcare Rising Arizona filed the paperwork with the AZ Secretary of State with language for a voter initiative that would make some changes to healthcare law and provide a backstop for consumers in case the Affordable Care Act is overturned by the US Supreme Court now that the tax penalty for not having health insurance has been removed from the ACA by the 2017 major tax law overhaul.

Here’s the language filed by the group on Monday this week.  The folks running the campaign still need almost 238,000 valid signatures by July 2, 2020 to get on the ballot- no easy feat given the new requirements passed by the Legislature and signed by the Governor which make getting things on the ballot harder. There are 4 basic components to the measure:

Consumer Protections for Health Insurance

Some consumer protections for Arizonans in case the Supreme Court overturns the ACA now that the tax penalties for not having insurance are gone.  This initiative would prevent commercial health insurance companies in Arizona from doing the following things (if the ACA is overturned):

1) denying someone health insurance because they have a preexisting condition -called the “guaranteed issue” requirement;

2) refusing to cover individual services that people need to treat a pre-existing condition- called “pre-existing condition exclusions”; and

3) charging a higher premium based on a person’s health status - called the “community rating” provision.

Hospital Associated Infections

Requires private hospitals to meet national safety standards regarding hospital-acquired infections and gives the Arizona Department of Health Services the authority to impose civil penalties if hospitals fail to meet those standards.

Surprise Billing

Protects Arizona consumers against surprise medical bills from out-of-network providers and requires refunds if patients are overcharged.

Raises for Direct Care Workers

Gives direct care hospital workers a 5% wage increase each year for four years. Direct hospital care workers include nurses, aides, technicians, janitorial and housekeeping staff, social workers and nonmanagerial administrative staff.

The fly in the ointment on this one is that last bullet. My guess is that there wouldn’t be a whole lot of organized opposition to the measure without that last piece- requiring raises for hospital direct care workers. 

Honestly, I think the provisions that require raises for direct care workers is what will make the Initiative fail, and along with it the opportunity to provide consumer protections in the health insurance market in case the US Supreme Court overturns the ACA now that the tax penalties for not having health insurance have been eliminated.

We’ll continue to review the language and evaluate whether to take a position on this and other voter initiatives that are I the works like the retail marijuana initiative and the Voter’s Right to Know Amendment.

Federal 5th Circuit Court Signals New Threat to the ACA

Health Care Increasingly Looking Like a Major Campaign Topic for 2020

Background on the 2012 Ruling Upholding the ACA

In the 2012 Ruling that upheld the ACA, Chief Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a taxbecause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” 

Roberts rejected the Obama Administration's argument that the federal government's authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).  Fortunately, the court held (5-4) that the ACA was constitutional based on the federal government’s taxing authority.

The Texas v Azar Challenge

Last week the 5th US Circuit Court of Appeals heard the Texas v Azar case which, once again, challenges the constitutionality of the Affordable care Act. Arizona is a party to the case and is supporting the suit (to overturn the ACA).

This latest challenge essentially argues that the ACA is no longer constitutional because the tax penalty for not having health insurance has been eliminated. 

All the media reports that I found about the questions they were asking and the statements they were making suggest that the appellate court may rule that the ACA is unconstitutional (now that the tax penalties for not having insurance are gone) - which would send the case up to the Supreme Court.

Protections at Risk

In addition to the coverage that the ACA provides through Medicaid expansion and the availability of Marketplace Plans with subsidies, the ACA has a ton of health insurance reform measures including preventing commercial health insurance companies from:

1) denying someone health insurance because they have a preexisting condition -called the “guaranteed issue” requirement;

2) refusing to cover individual services that people need to treat a pre-existing condition- called “pre-existing condition exclusions”; and

3) charging a higher premium based on a person’s health status - called the “community rating” provision.

Supreme Court Forecast

Because of the makeup of the 5th Circuit Court of Appeals (and the signals they sent through their questions at the hearing this week) the Court will likely uphold O’Connor’s decision to invalidate the ACA and the case will probably end up with the US Supreme Court…  which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since the 2012 decision upholding the ACA, Gorsuch has replaced Scalia and Kavanaugh has replaced Kennedy.  Both Scalia and Kennedy voted to overturn the ACA- so not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law. His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year's federal tax overhaul, pulling out the structure that Roberts used in his argument.

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Roberts views the ACA as fundamentally different now that the financial penalties are gone.

Healthcare’s Link to the 2020 Election

If a decision comes from the 5th Circuit in the next couple of months (as is likely) the US Supreme Court could be hearing the case during their October 2019 – April 2020 schedule…  making access to healthcare a sentinel issue in the November 2020 election.

Pre-existing exclusion exemptions, community rating, guarantee issue of health insurance, the availability of Marketplace plans with subsidies, and Medicaid expansion will all be front and center with the electorate. All very personal issues.

Social science suggests that people feel a loss of a benefit much more acutely than a missed opportunity.  In other words, it’s a lot harder to take something away than to not give it in the first place. 

With the American people now accustomed to the benefits that the ACA provides, there could be a backlash against those that take those benefits away.  Just sayin’.

AZ Can Prepare for a Post ACA Arizona

It's easy to see how the ACA could end up being struck down once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.

Prior to the ACA, the standards to protect people with pre-existing conditions were determined at the state level.  Most states including AZ had very limited protections. Many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums.  35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.

Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn't do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the Marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.

Several states have enacted their own laws to be consistent with the ACA market reforms. Several states already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same.  Also, CMS released new resources to support states with improving their health insurance markets and making coverage more affordable through section 1332 waivers.

The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A good 1st step would be for the Governor to ask our state agencies to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is successful. The report would put forward options for state-based health insurance market reform laws to require things like prohibiting pre-existing condition exclusions.

Such a report would give the Arizona State Legislature an analysis to evaluate public policy options for state-based market reforms.

I know what you're thinking, it's impossible to pass these kind of market reforms in Arizona.  Maybe, but many thought Arizona's expansion of our Medicaid system back in 2013 was impossible.  That case study shows that with the right kind of leadership on the 9th floor, anything is possible.

States Lowering Marketplace Premiums with 1332 Waivers

One of the successes of the Affordable Care Act was the development of the health insurance Marketplace.  States can have can have a significant impact on what the premiums are on their state's Marketplace plans by using some of the policy tools available in the ACA. 

For example, Section 1332 waivers in the ACA allow states to implement innovative market driven solutions to lower premiums and protect coverage at the same time.  The goal of Section 1332 waivers is to allow states to experiment with alternative payment and delivery models

Recent CMS guidance changed several components of the 1332 waiver processes including allowing executive orders or state regulations to pursue 1332 waivers.

Many states have recently taken administrative action to lower the Marketplace premiums in their states by implementing reinsurance waivers.  Reinsurance programs allow states to reimburse insurers for certain high-cost claims, allowing them to lower premiums overall. In essence, reinsurance (insurance for insurance) creates a backstop for insurers for super-expensive claims - which makes insurance for everybody more affordable. 

So far this year, CMS has approved Section 1332 reinsurance waivers in Alaska, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, and Wisconsin. There are reinsurance waiver applications pending in Colorado (following their passage of HB 19-1168) and North Dakota (following their enactment of HB 1106).

More 1332 waiver applications are on the way too.  Delaware, Montana, and New Mexico enacted legislation authorizing reinsurance 1332 waiver applications - so those waiver applications should be on the way in the near future.   Maryland passed HB 1098 which authorizes (but doesn't require) their state to submit a 1332 reinsurance waiver by January 1, 2020.

Basically, 1332 waivers offer states the opportunity to implement reinsurance waivers that have a direct and beneficial effect on Marketplace premiums that benefit their residents. Seems like a no-brainer in terms of smart public policy. 

Will Arizona be next in line to seek a reinsurance waiver to help reduce Marketplace premiums in AZ? 

Tools to Align Public Health & Medicaid Polices

The Center for Healthcare Strategies has been partnering with the CDC, CMS, ASTHO, and the National Association of Medicaid Directors on a really interesting policy development partnership that aligns and accelerates the adoption of evidence-based prevention strategies between public health and Medicaid for high-cost health conditions like tobacco use, high blood pressure, inappropriate antibiotic use, asthma, unintended pregnancies, and type 2 diabetes.

It’s called the 6|18 Initiative and it’s supporting Medicaid-public health partnerships in 34 states to accelerate adoption of proven prevention strategies (the “18” refers to a set of evidence-based interventions that address the “6” conditions above).  The collaborative has developed practical tools to help Medicaid agencies, state and local health departments, and other payers and purchasers plan, design, implement, and assess CDC’s 6|18 Initiative prevention activities.

The tools are designed to help the collaborative teams (Medicaid and public health officials and managed care organizations) to implement high-opportunity prevention interventions.  Here’s a link to those entity specific tools.

Arizona and many other states are aggressively adopting new value-based payment models to improve health care quality and stabilize or reduce healthcare costs.  CDC’s 6|18 Initiative offers some evidence-based preventive practices and payment and delivery models that offer opportunities for state and local agencies to collaborate on enhancing the coverage, access, utilization, and quality of cost-effective prevention practices.

Washington Passes Medicaid Buy-In Law

This week Washington Governor passed the nation’s first Medicaid buy-in law.  The new law will offer a new health insurance option to people who make too much money to qualify for Medicaid but not enough to afford private health coverage. 

Washington's new law directs their state Medicaid agency to contract directly with at least one private health insurer to offer a "qualified health coverage" plan that meets Affordable Care Act standards on the state’s marketplace. It will expand subsidies to people making up to 500% of the federal poverty line, or $62,450 a year, for a single person.

The tiered public plans are expected to be up to 10% cheaper than comparable private insurance, in part because of savings from a cap on rates paid to providers. The WA public plans are set to be available to all residents regardless of income by 2021.  Here’s more info in a Time Magazine article from this week.

In addition to Washington, legislation to study or start a public option or Medicaid buy-in program is currently pending in Colorado, Connecticut, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey and Oregon.

The basic idea is to leverage the buying power of state Medicaid programs to negotiate better premium rates that offer a lower-cost alternative to the health-care marketplace and spur competition which would lower premiums overall.

Legislative Update

Not a ton news since last week. The main thing that happened this week is that the Governor signed a good bill on suicide prevention (more info below). He also signed a bill that will make Association Health Plans more available in AZ. Info on that below too.  Last week’s  Legislative Update covers things pretty well so far.

Other than that, we're moving full force into the budget negotiations process now. By all accounts it looks to be a more deliberative process than in years past because of the tight party affiliation margins and the disconnect between the executive budget priorities and those of the legislature. It's likely that we'll have at least a few more weeks before a final budget is complete- and it might even go into June this year. 

SB 1468 Suicide Prevention Training

It will require school districts, charter schools, and Arizona teacher training programs to include suicide awareness and prevention training in their continuing education curricula.  It’ll require AHCCCS to make suicide awareness and prevention training available (fortunately some evidence- based tools curricula already exist).

Starting in the 2020 school year, school districts and charter schools would need to provide training in suicide awareness and prevention to school personnel in grades 6 to 12.  The bill also establishes requirements for suicide awareness and prevention training and specifically says that the training use evidenced-based training materials and instruct participants on how to identify the warning signs of suicidal behavior in adolescents and teens.

SB 1085 Association Health Plans (AzPHA Opposed)

This bill was passed by the House this week and is awaiting the Governor’s signature.  He’s sure to sign it. It basically provides a regulatory structure at the state level to regulate AHPs in AZ - serving to make them more available in Arizona. A primary concern for folks interested in public health and consumer protection is that AHPs don’t need to cover the essential health benefits, they can charge differently depending on gender and age. 

Additionally, we’re concerned that if an employer offers a “skinny” benefit plan that barely meets the definition of minimum value (and doesn’t include important essential health benefits) families could be prevented from benefitting from the subsidies that would otherwise be available to them on the Marketplace.

Back in August (at the direction of the President) the US Department of Labor issued a final rule that established criteria for determining when employers can join in an association and be treated as an employer sponsor of a group health plan.  The federal regulation loosens the rules for additional plans to come onto the market, allowing more small businesses including individuals who work for themselves to join these plans.  This bill will make these plans more available in AZ.

US Justice Department Files its Argument Against the ACA

A few months ago a federal judge in Texas (Judge Reed O’Connor) dealt a blow to the ACA when he ruled in Texas v. Azar that the ACA is unconstitutional in its entirety…  including the implementation of market reforms (e.g. protections for folks with pre-existing conditions), the health insurance marketplaces, and the expansion of Medicaid. He didn’t issue an injunction ordering the suspension of the law - so the ACA will remain the law of the land for now.

The DOJ made it clear that they have no intention of defending any of the provisions of the ACA (including covering pre-existing conditions) because they agree with the plaintiff States. That message came in a short statement by the Attorney General when he notified the court that they fully side with Judge O’Connor’s decision in Texas v. Azar & won't defend the ACA.

This week the Department of Justice filed their argument against the ACA with the court. The government argues that since the "individual mandate" has now been effectively eliminated by the tax overhaul law last year the whole ACA unconstitutional.

Last week’s filing concedes that the administration had previously argued that parts of the ACA could remain in effect even if the individual mandate were struck down, but they are changing that position now and their position is that the court should strike down the law in its entirety.

Because of the makeup of the 5th Circuit Court of Appeals, the court will likely uphold O’Connor’s decision and the case will probably end up with the US Supreme Court…  which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since then, Gorsuch replaced Scalia and Kavanaugh replaced Kennedy.  Both Scalia and Kennedy voted against the ACA- so not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law.  His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year's federal tax overhaul, pulling out the structure that Roberts used in his argument.

In the 2012 Ruling, Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a taxbecause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” 

Roberts rejected the Administration's argument that the federal government's authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Roberts views the ACA as fundamentally different now that the financial penalties are gone.

US Justice Department Won't Defend the ACA

A couple of months ago a federal judge in Texas (Judge Reed O’Connor) dealt a blow to the ACA when he ruled in Texas v. Azar that it's unconstitutional in its entirety- including the implementation of market reforms (e.g. protections for folks with pre-existing conditions), the health insurance marketplaces, and the expansion of Medicaid. He didn’t issue an injunction ordering the suspension of the law - so the ACA will remain the law of the land for now.

Last week the DOJ made it crystal clear that they have no intention of defending any of the provisions of the ACA (including covering pre-existing conditions) because they agree with the plaintiff States. That clear message came in a short statement by the Attorney General when he notified the court that they fully side with Judge O’Connor’s decision in Texas v. Azar & won't defend the ACA.

The December 2018 ruling isn’t the last word. The case has been appealed to the federal appellate court system.  It will probably end up with the US Supreme Court…  which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since then, Gorsuch replaced Scalia and Kavanaugh replaced Kennedy.  Both Scalia and Kennedy voted against the ACA- so not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law.  His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year's federal tax overhaul, pulling out the structure that Roberts used in his argument.

In the 2012 Ruling, Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a taxbecause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” 

Roberts rejected the Administration's argument that the federal government's authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Roberts views the ACA as fundamentally different now that the financial penalties are gone.

How Can AZ Prepare for a Post ACA America?

It's easy to see how the ACA could end up being struck down in a couple of years once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.

Prior to the ACA, the standards to protect people with pre-existing conditions were determined at the state level.  Most states including AZ had very limited protections. Many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums.  35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.

Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn't do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the Marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.

Several states have enacted their own laws to be consistent with the ACA market reforms. Several states already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same. 

The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A good 1st step would be for the Governor to ask our state agencies to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is successful. The report would put forward options for state-based health insurance market reform laws to require things like prohibiting pre-existing condition exclusions.

Such a report would give the Arizona State Legislature an analysis to evaluate public policy options for state-based market reforms.

I know what you're thinking, it's impossible to pass these kind of market reforms in Arizona.  Maybe, but many thought that Arizona's expansion of our Medicaid system back in 2013 was impossible.  That case study shows that with the right kind of leadership on the 9th floor, anything is possible.

Public Health Bills that have Passed a Chamber

Access to Care & Healthcare Workforce

SB 1088 Dental Care During Pregnancy (Carter) – AzPHA Position: YES

Passed the Senate 27-3.  Assigned to House Health & Human Services Committee.

SB 1354 Graduate Medical Information & Student Loan Repayment (Carter) AzPHA Position: Yes

Passed Senate 28-2.  Not assigned to a House Committee yet. 

 

SB 1089Telemedicine Insurance Coverage (Carter) – AzPHA Position: Yes

Passed Senate 30-0. Assigned to House Health & Human Services Committee.

 

SB 1174 Tribal Area Health Education Center – AzPHA Position: Yes

Passed Senate 30-0. Assigned to Senate Education Committee.

 

SB 1355 Native American Dental Care – AzPHA Position: Yes

Passed Senate 25-5.  Assigned to House Health & Human Services Commottee.

 

SB 1456 Vision Screening- AzPHA Position: Yes

Passed Senate 29-0. Assigned to Senate Education Committee.

** Kids Care: The Kids Care Reauthorization bills have all languished in their chamber of origin, however, we have good reason to believe that reauthorizing Kids Care including the appropriation needed to pay the state match (10%) will be negotiation in the state budget bills.

 

Injury Prevention

SB 1165 Texting and Driving Prohibition (Brophy McGee) – AzPHA Position: YES

Passed Senate 20-10. Assigned to House Transportation Committee. 

 

Licensing & Vital Records

SB 1247 Residential Care Institutions (Brophy McGee) AzPHA Position: Yes

Passed the Senate 30-0.  Assigned to House Health and Human Services Committee.

 

SB 1211 Intermediate Care Facilities (Carter) AzPHA Position: Yes

Passed the Senate 30-0. Assigned to House Health & Human Services Committee.

 

SB 1245 Vital Records- Death Certificates (Brophy McGee) AzPHA Position: Yes

Passed the Senate 30-0.  Assigned to House Health and Human Services Committee.

 

Tobacco & Nicotine

SB 1009 Electronic Cigarettes, Tobacco Sales (Carter) – AzPHA Position: YES

Passed the Senate 30-0. Not assigned to a House Committee yet.

 

SB 1060 (Strike-all Amendment) Electronic Cigarettes. Smoke Free Arizona Act (Carter) – AzPHA Position: YES

Passed the Senate 28-0. Not assigned to a House Committee yet.

 

Surveillance & Social Determinants

HB 2125 Child Care Subsidies (Udall) – AzPHA Position: YES

Passed House 46-13.  Assigned to House Health and Human Services Committee.

 

HB 2488 Veteran Suicide Annual Report (Lawrence) AzPHA Position: Yes

Passed House 60-0. Assigned to Senate Health and Human Services Committee.

 

SB 1040 Maternal Mortality Report (Brophy-McGee) – AzPHA Position: YES

Passed the Senate 30-0. Assigned to House Health and Human Services Committee.

Disappointments

HB 2718 Syringe Services Programs (Rivero) AzPHA Position: Yes

This terrific bill stalled in the House after not being heard by the Rules Committee. Perhaps it can be restored somehow in the Senate with a Strike Amendment.

Here's this week's detail report

State Legislature Bill Update

More than 700 bills have so far been proposed by members of the Arizona State Legislature so far.  Our Public Health Policy Committee is busy sifting through them and looking for those that will have a public health impact.  We’re not done looking through them yet- but below is a summary of what we know so far.

Tobacco Bills:

SB 1009 Electronic Cigarettes, Tobacco Sales (Carter)

Expands the definition of tobacco products to include e-cigarettes. Among other things, it'll make it clear that it's illegal to sell e-cigarettes to minors. The penalty for selling to minors remains at $5K. Being heard in Senate Health & Human Services Committee Wednesday Feb 23 at 9 am.

HB 2024 Electronic Cigarettes. Smoke Free Arizona Act (Kavanaugh)

Includes e-cigarettes in the definition of tobacco products and smoking for the purposes of the Smoke Free Arizona Act.  Because the Act was voter approved- this modification to the law will require a 3/4 majority of both houses.

HB 2073 Vapor Products; Regulation (Shope)

This bill would basically set up a regulatory program at the ADHS to inspect and license electronic cigarette manufacturers in Arizona and specify that only licensed electronic cigarette manufacturers can sell products in Arizona.  It’s unclear what the objective of this bill is and we have not yet taken a position on it yet.


Maternal & Child Health:

SB 1088 Dental Care During Pregnancy (Carter)

This bill would expand AHCCCS covered services to include comprehensive dental coverage during pregnancy and appropriate the required state match funding.

SB 1040 Maternal Mortality Report (Brophy-McGee)

This bill would require the Child Fatality Review Team subcommittee on maternal mortality to compile an annual statistical report on the incidence and causes of "severe maternal morbidity" with recommendations for action.  The current law requires a review of the data but no report.

 

HB 2125 Child Care Subsidies (Udall)

Makes a supplemental appropriation of $56 million from the Federal Child Care and Development Fund block grant in FY2018-19 to the Department of Economic Security for child care assistance. Another bill, HB 2124 would allocate the money as follows: $26.7 million for provider rate increases, $14 million to serve children on the waiting list, and $13.1 million to increase tiered reimbursement for infants, toddlers and children in the care of DCS. HB 2436 is a similar bill.

HB 2337 Family Planning (Salman)

Would repeal the statute requiring the Department of Health Services to apply for the federal Title X family planning grant.

Injury Prevention:

HB 2069 Texting and Driving (Kavanaugh)

Makes texting while driving on a highway a nonmoving civil traffic violation.  The penalty for the 1qst violation would be $100 and the second offense would be $300.  If a crash is involved the penalty would be $500 but if someone died it would be $10K.   subject to a civil penalty of $500, except that if the accident results in the death of another person, the civil penalty is $10,000.

HB 2165  Distracted Driving (Townsend)

A person who drives a vehicle while participating in an activity that willfully distracts the person from safely operating the vehicle is guilty of reckless driving, a class 2 (mid-level) misdemeanor.  I’m not sure if texting and driving would qualify or not- it probably does.

HB 2172  Rear Facing Car Seats (Bolding)

Kids under two years of age need to be in a rear-facing restraint system unless the child weights at least 40 pounds or is at least 40 inches tall.

HB 2246  Motorcycle Helmets (Friese)

Motorcycle riders over 18 would be required to wear a helmet unless they pay a fee that would be set by ADOT. Violations would be a $500 civil penalty, but no points or other sanctions. 

HB 2075  Electronic Prescribing (Cobb)

Pushes the electronic prescribing requirement in last year’s Opioid Epidemic Act back to January 2, 2020 in all counties.  Being heard in House Health & Human Services Committee Thursday Feb 24 at 9 am.

Firearm Safety

HB 2247 Bump Stocks (Friese)

This bill would outlaw the sale of bump stocks on firearms.

HB 2248 Firearm Sales (Friese)

This bill would require a background check for all sales at gun shows.

HB 2161 Order of Protection (Hernandez)

A person who is at least 18 years of age and who is either a law enforcement officer, a “family or household member” (defined), a school administrator or teacher or a licensed behavioral health professional who has personal knowledge that the respondent is a danger to self or others is permitted to file a verified petition in the superior court for a one-year Severe Threat Order of Protection (STOP order), which prohibits the respondent from owning, purchasing, possessing or receiving or having in the respondent’s custody or control a firearm or ammunition for up to one year.

HB 2249  Mental Health and Firearm Possession (Friese)

An immediate family member or a peace officer is authorized to file a verified petition with a magistrate, justice of the peace or superior court judge for an injunction that prohibits a person from possessing, controlling, owning or receiving a firearm. Any court may issue or enforce a mental health injunction against firearm possession, regardless of the location of the person. Information that must be included in the petition is specified. If the court finds that there is clear and convincing evidence to issue a mental health injunction against firearm possession, the court must issue the injunction. Information that must be included in the injunction is specified.

Harm Reduction:

HB 2148 Syringe Access Programs (Rivero)

Decriminalizes syringe access programs, currently a class 6 felony. To qualify, programs need to list their services including disposal of used needles and hypodermic syringes, injection supplies at no cost, and access to kits that contain an opioid antagonist or referrals to programs that provide access to an opioid antagonist.

SB 1119 Tanning Studios (Mendez)

Would require people under 18 that want to use a commercial tanning bed service to have permission from their parent or guardian.

Vaccines

HB 2162 Vaccine Personal Exemptions (Hernandez)

This bill would remove the personal exemption option for parents to enroll in school even though they haven’t had all the required immunizations.

HB 2352 School Nurse and Immunization Postings (Butler)

School districts and charter schools would be required to post on their websites whether a registered nurse is assigned to each school as well as required reports on immunization rates.

Agency Administration

HB 2004 Nuclear Management Fund (Kavanaugh)

Assesses the Palo Verde nuclear plant $2.55M and gives it to ADEM, ADHS and other jurisdictions to compensate them for off-site nuclear emergency response plan response activities.  Being heard in House Appropriations Committee Wednesday Feb 23 at 2 pm.

 

HB 2280  Interfacility Ambulance Transports (Weninger)

A person may operate an "interfacility transfer ambulance service" by applying to the Department of Health Services for a certificate of operation with defined requirements.   The requirement to transport a patient under medical direction to the nearest, most appropriate facility as defined by federal medicare guidelines does not apply to an interfacility transfer ambulance service with a certificate of operation.

SB 1011 Information and Referral Service (Carter)

Appropriates $1.5 million from the general fund in FY2019-20 to the ADES for a statewide information and referral service for health care services, community services, human services and governmental services.  


AHCCCS Coverage & Services

HB 2347 Medicaid Buy-in (Butler)

Would require AHCCCS to set up a program in which eligible people could pay a premium and receive Medicaid health insurance.

HB 2350 HB2513 SB1134 Kids Care (Butler, Brophy-McGee, Cobb)

These bills Would appropriate funding so that Kids Care could continue after the federal match rate goes below 100% on October 1, 2019.

HB 2351 Medical Services Study Committee (Butler)

Establishes a 14-member Medical Services Purchase Program Study Committee to research and make recommendations for establishing and implementing a medical services purchase program. The Committee is required to submit a report of its findings and recommendations to the Governor

HB 2120  Chiropractic Coverage (Barto)

Would add chiropractic services to the list of reimbursable services under AHCCCS.  Being heard in House Health & Human Services Committee Thursday Feb 24 at 9 am.

SB 1088 Dental Care During Pregnancy (Carter)

This bill would expand AHCCCS covered services to include comprehensive dental coverage during pregnancy and appropriate the required state match funding.


Food Safety & Insecurity

HB 2178  Milk Manufacturing License Exemption

A restaurant wouldn’t be required to get a license to manufacture or distribute frozen desserts or frozen milk products if the product is manufactured or distributed and sold at the same facility for on-site consumption

HB 2186  School Meals (Udall)

Schools are required to provide a school meal to a student who requests it regardless of whether the student pays for a school meal or owes money for previous meals. Local education agencies are prohibited from taking a list of specified actions relating to unpaid school meal fees, including announcing or publicizing the names of students with unpaid school meal fees, requiring a student who cannot pay for a meal or who owes unpaid meal fees to work for a meal, and attempting to collect unpaid school meal fees from a student. Local education agencies are prohibited from using a debt collector to attempt to collect unpaid school meal fees.


Access to Care

HB 2218 State Loan Repayment (Blanc)

Makes a supplemental appropriation of $250,000 from the general fund in FY2019-20 to the Department of Health Services to pay off portions of education loans taken out by physicians, dentists, pharmacists, advance practice providers and behavioral health providers participating in the primary care provider loan repayment program. 

HB 2376  Associated Health Plans (Barto)

An association health plan is authorized to operate in Arizona if the plan is in compliance with federal laws and regulations, and if the plan's governing documents require the plan to be actuarially sound and the plan is actuarially sound.

Medical Marijuana

HB 2149  Cannabis Definition (Rivero)

Syncronizes the definitions of marijuana and cannabis in the state criminal code and the Arizona Medical Marijuana Act.  There has been some confusion in certain counties- as medical marijuana patients have been prosecuted for possessing extracts and preparations of marijuana that they bought at dispensaries. The appeal of this prosecutions will be heard by the state supreme court. This would make it more clear in state law that extracts and preparations are included in the Act.

HB 2412  Medical Marijuana Cards (Powers Hannley)

This bill would make medical marijuana cards valid for 2 years instead of the current 1 year.

Maternal Mortality: A Tragic Trend Continues in the US and AZ

The US has the highest maternal mortality rate of any developed country.  Sadly, it’s getting worse each year.  About 800 American women die and 65,000 almost die during pregnancy or childbirth.

The number of deaths in AZ jumped from around 10 in 2015 to about 30 in 2016 (the last year for which ADHS has data posted). The numbers are rounded for statistical reasons (called cell suppression in the public health statistics trade.)

Nationally, back women die from pregnancy-related causes at three to four times the rate of white women, even after controlling for social determinants. Women in rural areas also have higher maternal mortality rates than urban women.  Here’s a story that highlights some of the issues in an easy to read way.

Fortunately, there are public health policy leverage points that can make a difference within state health departments and Medicaid agencies.  Medicaid is a leverage point because it pays for over half of all births each year in 25 states including Arizona.  

All states provide Medicaid coverage for women with incomes up to 133% of poverty during pregnancy and for 60 days after delivery.  But the scope of services covered before and after delivery vary between states.  As a result, some women lose coverage or Medicaid eligibility in certain states after that 60-day period (mostly in states without Medicaid expansion).

In Medicaid expansion states (like AZ) women have more opportunities to achieve better preconception health because they’re more likely to be able to access contraception and plan their pregnancies, receive primary care services to manage chronic conditions prior to and between pregnancies and access prenatal and perinatal care once pregnant.

Evidence-based policy making is a key.  Twenty-nine states (including Arizona) have committees that review maternal deaths and make public policy recommendations.  Back in 2011, Arizona passed, and the Governor signed a bill that amended our child fatality review statutes by adding reviews of maternal deaths.

The statute charges our existing Child Fatality State Teams to review maternal deaths (called the Maternal Mortality Review Subcommittee) and make policy recommendations. The primary goal is to identify preventive factors and make recommendations for systems change. The existing statute doesn't require an annual report- and the last report was published in 2017. Note: we've heard that there may be a Bill this session that will require an annual report of the committee's work.

Here are some of the recommendations from the most recent ADHS report (published in 2017):

  • All pregnant women should have access to prenatal care;

  • Encourage maternal care professionals, organizations, and health facilities to update their standards of practice and care to include all recommended guidelines for the prevention of medical complications;

  • Promote public awareness of the importance of healthy behaviors and women’s overall health prior to pregnancy;

  • Women should always wear proper restraints when riding in cars;

  • Maternal health-care systems require strengthened, prepared, and educated communities to improve deliveries in health facilities, particularly in rural areas;

  • Increase and streamline access to behavioral health services statewide, including training and education for advanced practice nurses in behavioral health services;

  • Support and implement community suicide prevention and awareness programs, such as Mental Health First Aid;

  • Health care providers should screen frequently for perinatal depression and domestic violence;

  • Institute and follow recommended California Maternal Quality Care Collaborative guidelines (www.cmqcc.org) for the timely transfer and transport to a higher-level care facility for any complications using regional transport services; and 

  • Educate providers on the availability of maternal postpartum resources such as home visiting programs.

Some states have gone further. For example, South Carolina’s Medicaid agency formed the South Carolina Birth Outcomes Initiative to advance reductions in early elective deliveries; incentivize Screening Brief Intervention and Referral to Treatment; promote long-acting reversible contraception; and support vaginal births.  One outcome of the SC initiative was to reimburse for long-acting birth control (LARC) devices provided in a hospital setting. 

Fortunately, Arizona has also included LARC reimbursement in a hospital setting post-partum.  This is an important policy intervention because it provides women with a long-acting and reversible option, so they can better plan future pregnancies – improving opportunities for preconception health, which is a key to improving health outcomes.

What We Can Do to Prepare for a Post ACA Arizona 

A federal judge in Texas (Judge Reed O’Connor) dealt a blow to the Affordable Care Act late last week when he ruled in Texas v. Azar that the ACA is unconstitutional in its entirety- including the implementation of market reforms (e.g. protections for folks with pre-existing conditions), the health insurance marketplaces, and the expansion of Medicaid.

Fortunately, he didn’t issue an injunction ordering the Administration to stop implementing the law- so the ACA will remain the law of the land for now.

Back in February, 20 states (including Arizona) filed the lawsuit seeking to invalidate the 3 legs of the ACA stool: pre-existing condition exclusions, community rating, and guaranteed issue. 

The ACA prevents health insurance companies from: 1) denying someone health insurance because they have a preexisting condition -called the “guaranteed issue” requirement; 2) refusing to cover services that people need to treat a pre-existing condition- called “pre-existing condition exclusions”; and 3) charging a higher premium based on a person’s health status - called the “community rating” provision.

The U.S. Department of Justice isn’t defending the ACA because they agree with the plaintiff States.  In fact, the Justice Department has urged the court to strike down the law.  Luckily, several states including CA are defending the law.

The Plaintiffs (including AZ) argue that since the new federal tax reform law removed the financial penalty for not having health insurance, the ACA is now unconstitutional.  

So, Will the Supreme Court Uphold the ACA Again?

Last week’s ruling isn’t the last word. The case will certainly be appealed in the federal appellate court system and then to the US Supreme Court, which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since then, Justice Gorsuch replaced Justice Scalia and Justice Kavanaugh replaced Justice Kennedy.  Both Scalia and Kennedy voted against the ACA- so not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law.  His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year's federal tax overhaul, pulling out the structure that Roberts used in his argument.

In the 2012 Ruling, Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a taxbecause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” 

Roberts rejected the Administration's argument that the federal government's authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Chief Justice Roberts views the ACA as fundamentally different now that the financial penalties for not having health insurance are gone.

 

What Happens in AZ if the ACA Goes Away & How Can We Prepare?

It's easy to see how the ACA could end up being struck down in a couple of years once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.

Prior to the ACA, the standards to protect people with pre-existing conditions were determined at the state level.  Most states including AZ had very limited protections. Many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums.  35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.

Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn't do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the Marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.

Several states have enacted their own laws to be consistent with the ACA market reforms. Several states (CT, HI, IA, IN, MA, ME, MD, MN, NE, NY, NC, ND, OR, SD, VA, VT) already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same. 

The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A reasonable first step would be for the Governor to ask the Arizona Department of Insurance, the ADHS and AHCCCS to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is ultimately successful. The report would also put forward options for state-based health insurance market reform laws that could be enacted to require things like prohibiting pre-existing condition exclusions.

Such a report would give the Arizona State Legislature an analysis with which to evaluate public policy options for state-based market reforms.

I know what you're thinking, it's impossible to pass these kind of market reforms in Arizona.  Maybe, but many thought that Arizona's expansion of our Medicaid system back in 2013 was impossible.

That case study shows that with the right kind of leadership on the 9th floor, anything is possible.

Marketplace Open Enrollment Ends December 15

December 15 is the last day to apply for Marketplace health insurance.  Most people get health insurance through their employer, Medicare or Medicaid, but about 87,000 Arizonans get their insurance though the Federally Facilitated Marketplace.  Nearly 9 out of 10 people in Arizona that get coverage from www.healthcare.gov receive tax credits – financial help – to make coverage more affordable. 

Each year many Arizonans meet with an Assister, thinking they will buy a www.HealthCare.gov plan, but find out they are in fact eligible for AHCCCS (Medicaid). Some learn their children are eligible for very low cost KidsCare (Children's Health Insurance Program). 

To find out what a comprehensive plan may cost go to www.healthcare.gov/see-plans. By simply entering your zip code, age, number of family members and projected 2019 income, you can look at available plans and find out if you qualify for a discount.  If a single person earns less than $48,560 they may qualify for financial help.  A family of four can earn up to $100,400 and qualify for financial help.

No matter where you live in Arizona, help is available. You can call 1-800-377-3536 or go to www.CoverAZ.org  and click on “Send a Message” to get your questions answered, or visit www.CoverAZ.org/Connector and make an appointment to meet with a local Assister.