Arizona Legislative Policy Updates
Tucson Voters Lead the Way
Last week Tucson voters approved Proposition 407 approving $225M in Bonds for improving the outdoor built environment. The funds will be used over the coming years for playgrounds, sports fields, pools, splash pads, recreation centers, pedestrian pathways, bike pathways, and pedestrian & bike safety infrastructure.
The plan includes 25 new splash pads, 22 new playgrounds and 17 shade structures installed at city parks in the next several years. Tucson will be reopening 2 city pools that have been closed and will make renovations the 22 other public pools. Improvements are also planned for sports fields, 28 new walking paths in parks, 26 new ramadas, 19 new restrooms and an amphitheater.
Safety and mobility projects will connect people to parks, schools, shopping and transportation. New sidewalks, enhanced major street crossings, off-street biking and walking paths and residential street traffic calming are also slated in the plan which will provide more than 210 km of enhancements across Tucson.
The $225M in improvements is spread over 9 years. You can learn more about the proposed Parks and Connections projects using Tucson’s Interactive Story Map.
Public Health Ballot Measures Approved in Other States
Here’s a summary of what voters approved in other states that link to public health policy.
Idaho, Nebraska, and Utah voted to expand their Medicaid programs (up to 138% of the federal poverty level). Idaho’s Proposition 2 was approved by 61% of voters and Nebraska’s passed with 53% approval (called Initiative 427 to expand Medicaid). Interestingly, neither of those states established a funding mechanism.
Utah’s Proposition 3 was approved by 54% of voters and funds the expansion with a 0.15% increase to the state’s sales tax. There are now 14 states left that haven’t expanded Medicaid. With gubernatorial party changes in Wisconsin & Kansas perhaps those states may be next.
Proposals related to marijuana were on the ballot in five states. Utah voters approved a medical marijuana initiative (Proposition 2) by a 53-47 percent margin. Interestingly, it will be a strictly “edibles” based program (prohibits the medical marijuana).
Missouri voters approved Amendment 2 (with 66% of the vote) that gives the Missouri Department of Health & Senior Services oversight of the state’s new medical marijuana program.
Michigan approved a measure to allowing adults to use marijuana for non-medical purposes and a retail sale program. Proposal 18-1 directs Michigan’s Department of Licensing and Regulatory Affairs to oversee the commercial production and retail sale of marijuana.
Wisconsin’s Medicaid Work Requirement Approved
CMS has approved Wisconsin’s Medicaid work requirement waiver, making them the 5th state to have their work requirement waiver approved. Wisconsin is the 1st state to receive approval for work requirements since a federal court ruled them unconstitutional in Kentucky.
Medicaid members between the ages of 19 and 49 will be required to work, volunteer, be in school or in a job training program for at least 80 hours a month. Recipients who don’t comply after 48 months will lose their eligibility. The state is also allowed to charge premiums for what is normally free and to raise those premiums for people with riskier health behaviors like smoking.
Of the four other states CMS has given the greenlight to, only Arkansas has implemented work requirements. Indiana and New Hampshire will start enforcing them in January, and Kentucky's have been sent back to CMS for review.
Arizona’s Work Requirement Request
A 2015 AZ law requires AHCCCS to annually ask the CMS for permission to require work (or work training) and income reporting for “able bodied adults” and a 5-year lifetime limit on AHCCCS eligibility.
Late last year AHCCCS submitted their annual official waiver request including a requirement to become employed, actively seek employment, attend school, or partake in Employment Support and Development activities (with exceptions) and a requirement to bi-annually verify compliance with the requirements and any changes in family income. CMS hasn't yet ruled on the AZ request.
HB 2228 requires AHCCCS to exempt of tribal members from the work requirements but CMS has suggested that they won’t be approving waiver requests that exempt tribal members due to civil rights issues.
New Federal Opioid Intervention Bill Becomes Law
In August, congress passed and the president signed the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act. Much like Arizona’s Arizona Opioid Epidemic Act – approval of the bill was bipartisan, with a House vote of 393-8 and 98-1 in the Senate.
The final bill creates, expands and reauthorizes programs and policies across several federal agencies, and focuses on prevention, treatment and recovery. The text of the Act is extremely long, but you can view a high level summary on this landing page.
Some of the provisions are in line with recommendations in the 2017 ADHS Opioid Response Report like calling for changing an old federal regulation that prohibited Medicaid from covering patients with substance abuse disorders who were getting treatment in a mental health facility with more than 16 beds. The effect of the former law limited the number of beds available for low-income patients suffering from addiction- so hopefully the network of treatment facilities will expand as a result of this change in the law. The new federal law allows for 30 days of residential treatment coverage.
The new law allows nurse practitioners and physician assistants to prescribe buprenorphine, which is an anti-addiction medication that requires a special license and extra training. For the next 5 years, it will also allow nurse anesthetists, nurse midwives and clinical nurse specialists to prescribe buprenorphine. Right now, only about 5% of doctors are licensed to prescribe it. It’ll take time for the inventory of prescribers to increase because of the training that’s required- but over time this provision will help network capacity especially in rural areas.
The Act also creates a grant program for comprehensive recovery centers that include housing and job training, as well as mental and physical health care. It will also increase access to medication-assisted treatment.
Some aspects of that law that relate to Medicaid include:
Temporarily requires coverage of medication-assisted treatment under Medicaid;
Prohibiting the termination of Medicaid eligibility for juveniles who are inmates of public institutions;
Requiring CMS to establish a demonstration project to increase provider treatment capacity for substance-use disorders;
Requiring state Medicaid programs to establish drug management programs and drug-review and utilization requirements for at-risk members; and
Extending enhanced federal matching rate for expenditures regarding substance-use disorder health-home services under Medicaid.
The bill also includes a provision to help stop the flow of black-market opioids into the country by mail, especially synthetic fentanyl and its analogs. The US Postal Service will need to provide the name and address of the sender and the contents of at least 70% percent of all international packages, and 100% of packages from China.
All international shipments will need to have the name and address of the sender by the end of 2020. The Postal Service was also given the authority to block or destroy shipments for which the information isn’t provided.
The Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act is long and comprehensive so I can’t cover everything…. But the bottom line is that public health policy – both here in AZ and now nationally is beginning to address the epidemic.
More States are Implementing School-based Nutrition and Physical Activity Policies
Obesity remains a complex health issue in the United States. Several factors—including behavioral, environmental, and genetic—interact and contribute to increasing obesity rates. Approximately 19% of children and adolescents aged 2-19 years old are obese and face a greater risk of developing chronic and other conditions like diabetes, heart disease, cancer, high blood pressure, asthma, and sleep apnea. By 2012, the estimated annual cost of obesity in the United States was $147 billion, in addition to other social and emotional costs.
The causes of childhood obesity include unavailability of healthy food options, easy access to unhealthy foods, lack of physical activity, as well as policy and environmental factors that do not support healthy lifestyles. Schools play a significant role in diet and activity through the foods and drinks offered and the opportunities for physical activity provided.
Recognizing the unique position of schools, states have enacted and proposed legislation to prevent and reduce childhood obesity by: (1) ensuring that nutritious food and beverages are available at schools, and (2) establishing physical activity and education standards at schools. Below is an overview of current laws and recent state and territorial legislative activities to increase the availability of healthy foods and opportunities for physical activity in schools.
School Nutrition Legislation
Children and adolescents consume much of the food they need each day while at school. Children may receive meals from federal programs like the National School Lunch Program and the School Breakfast Program, or they may purchase competitive food and drinks (i.e., food that’s purchased from school-based vending machines, snack bars, or concessions outside of the school’s food service program). Many states have adopted policies to make competitive foods healthier, set limits on food for rewards, and impose restrictions on food and beverage marketing in schools.
What are other states doing?:
A Colorado statute prohibits public schools from making available any food or beverage that contains any amount of industrially produced trans-fat on school grounds. In Kentucky, each school must limit access to retail fast foods in cafeterias to no more than one day each week. Laws in New Jersey prohibit the sale of foods of minimal nutritional value, all food and beverage items listing sugar as the first ingredient, and all forms of candy on school property during the school day.
In 2017, California’s governor approved a bill limiting the advertisement of food and beverages during the school day in schools, school districts, or charter schools participating in federal lunch and breakfast programs. California also prohibited participation in corporate incentive programs that reward children with food and beverages that do not comply with nutrition standards. New Hampshire proposed similar legislation prohibiting the advertisement of any food or beverage that does not meet the minimum nutrition standards as set forth by the school district, as well as participation in a corporate incentive program that rewards children with food and beverages.
Recognizing that many schools lack the necessary equipment to support the storage, preparation, and service of minimally processed and whole foods, the Washington State legislature introduced a bill that would establish a competitive equipment assistance grant program for public schools to improve the quality of food service meals that meet federal dietary guidelines and increase the consumption of whole foods. In 2017, Puerto Rico proposed a bill requiring that vending machines located in public schools only contain products of high nutritional value according to the standards imposed by the federal government.
Physical Activity Legislation
According to CDC, children and adolescents should have one hour or more of physical activity every day. State policymakers often target physical activity and education curriculums in K-12 schools to combat the childhood obesity epidemic. Promising trends include: improving physical education curricula,integrating physical activity into the school day and maximizing recess opportunities, as well as enhancing physical activity opportunities in school-based after-school programs.
Many states have statutes in place or have proposed legislation imposing physical activity and education requirements in schools. Last legislative session, Arizona approved a new law mandating that public schools include recess in their curriculum. Other states have gone further:
Iowa, Louisiana, North Carolina, and Texas require 30 minutes of physical activity each school day. Arkansas requires 90 minutes of physical activity each week for grades K-6. South Carolina sets a minimum standard of 150 minutes per week for grades K-5. Colorado requires 600 minutes of physical activity each month for full-time elementary students. Tennessee amended its statute to require a minimum of 130 minutes of physical activity per full school week for elementary school students and a minimum of 90 minutes for middle and high school students.
CMS Opens the Door to Waivers to Subsidize Weaker Health Insurance Plans
Section 1332 of the Affordable Care Act gives the HHS and the Department of Treasury authority to review and potentially approve a “State Innovation Waiver” related to Marketplace insurance if a state’s waiver application provides “coverage to a comparable number of residents of the state as would be provided coverage absent the waiver” and “provides coverage that is at least as comprehensive and affordable as would be provided absent the waiver”, and "doesn't increase the Federal deficit".
If a state’s waiver is approved by HHS, a state can get pass-through funding equal to what they would have received without the waiver. Back in 2015 the Obama Administration issued guidance regarding the requirements to get a 1332 waiver.
Last week CMS replaced the 2015 guidance with new guidance for 1332 waivers that would (if the guidance stands up to judicial review) allow states to implement what CMS is calling “State Relief Empowerment Waivers”. It’s a name they invented- not a name that’s outlined in the ACA. The new guidance will likely have an impact beginning in the 2020 open enrollment period- not the current open enrollment period.
CMS says they will now allow a wider range of insurance coverage levels in waiver requests, including plans that don’t comply with the ACA’s basic coverage requirements. For example, state 1332 waivers will now be able to include Association Health Plans and short-term limited duration insurance. Under the guidance, states could get a federal subsidy to subsidize the purchase of these plans.
The short-term limited duration insurance part of the guidance might not stand up to judicial review because the ACA states that the waivers must provide “coverage that is at least as comprehensive and affordable as would be provided absent the waiver.” Short term limited duration plans and some association health plans do not.
Association Health Plans and short-term plans don’t necessarily include coverage for essential health benefits, which can leave plan participants with high out-of-pocket costs or discourage individuals from seeking timely treatment. For example, short term plans don’t usually cover pre-existing conditions and generally don’t offer coverage for behavioral health services, prescription drug costs, or maternity care.
Under the new guidance, CMS’ analysis of affordability and coverage will be based on the types of coverage made available to state residents rather than on the coverage that residents buy - which may not be in accord with the statutory ACA requirements of 1332 waivers.
CMS says their analysis will focus on the aggregate effects of a waiver rather than on the effects on a subgroup of state residents. In other words, CMS will consider the overall improvements in affordability and coverage for state residents.
Right now, there are only eight 1332 waivers (they were approved under the 2015 guidance). Those 1332 waivers mostly focused on reinsurance programs to lower premiums in the federal marketplaces.
FDA Stepping Up Tobacco Control
On September 12, the FDA Commissioner called out the manufacturers of electronic cigarettes for their clear efforts to market to teenagers and put them on notice that additional regulations could be on the way.
The FDA is considering removing certain flavored e-cigarettes from the market and shortening the time to market review for most cigarettes now being sold. At a press conference, he acknowledged that his agency has failed to recognize the extent of the problem. Here’s a direct quote from him.
"We didn't predict what I now believe is an epidemic of e-cigarette use among teenagers, and today we can see that this epidemic of addiction was emerging when we first announced our plan last summer. Hindsight, and the data now available to us, reveal these trends. And the impact is clearly apparent to the FDA."
The FDA issued more than 1,300 warning letters and civil money penalty complaints to retailers who illegally sold JUUL and other e-cigarette products to minors during a nationwide. Last week’s action also included a request to 5 e-cigarette manufacturers to put forward plans to immediately and substantially reverse these trends toward marketing to teens or face a potential decision “to reconsider extending the compliance dates for submission of premarket applications”.
At least it's a start.
State Legislatures Tackling E-cigarettes
E-cigarette use by kids is growing across the nation including in Arizona. In September, the FDA Commissioner called out the manufacturers of electronic cigarettes for their clear efforts to market to teenagers and put them on notice that additional regulations could be on the way. Some of the most popular ones mimic USB flash drives so that they’re easily disguised adults (teachers and parents). They even actually plug into an USB port for charging!
Almost all of them contain nicotine which is of course highly addictive, harmful to adolescent brain development, and a health danger for pregnant women. E-cigarette aerosol can also contain cancer-causing chemicals, heavy metals like lead, and volatile organic compounds. Evidence shows that even those without nicotine are harmful to the lungs.
E-cigs are now the most commonly used tobacco products among youth and young adults, with e-cigarette use growing 900% among high school students from 2011 to 2015. In 2016, more than two million U.S. middle and high school students had used e-cigarettes in the past 30 days.
Middle aged e-cig users are quite different from younger users. Most middle aged e-cigarette users (aged 45 years and older) are either current or former regular cigarette smokers. Less than 2% had never been cigarette smokers! In contrast, among 18-23 year olds, 40% have never been regular cigarette smokers. A big concern is that many of these younger e-cig users will transition to actual cigarettes.
Some states have implemented legislative approaches to combat e-cigarette use. Pricing is among the most frequent interventions. Raising the price of e-cigarette reduces demand just like for other tobacco products, especially for younger users- that tends to dominate the approaches. Legislation to increase the price of e-cigarette products fall into three categories: 1) price increases based on the current sales price; 2) pricing e-cigarettes and vapor products at the same rates as regular cigarettes; and 3) imposing a per milliliter (ml) price increase on liquid nicotine or consumable material.
Percentage Price Increases
Two states have established percentage price increases for e-cigarettes. Pennsylvania increased the price of e-cigarette products (i.e., the electronic oral device with heating coil, battery, etc., as well as the liquid or substance used in the e-cigarette) by 40%. Minnesota increased the price of tobacco products including e-cigarette products by 95%.
Washington state introduced a bill that would raise the prices of vapor products by 60%. In New Mexico, an amendment was introduced to raise the price of e-cigarettes by 76% of the product value. This would be an increase from the current 25% set out in statute.
Legislators in New York recently introduced two bills (A011338 and S01089) to treat e-liquid cartridges as “tobacco products” and increase the price of cartridges by 75% of the wholesale price. A governor’s budget proposal in Rhode Island called for raising the price of e-cigarettes by 80% of the wholesale cost. Similarly, Kentucky proposed an amendment to increase the price of e-cigarettes by 15%.
Pricing Equalized to Cigarettes
California is adopting regulations to increase e-cigarettes prices equal to their Cigarette Distribution Tax ($0.10 per cigarette). District of Columbia increased the price of vapor products equal with the rate imposed on a pack of 20 cigarettes.
Price Increases Per Fluid Amount
Six states increased prices of vapor products, liquid nicotine, or consumable material per fluid ml. Delaware (vapor products), Kansas (consumable material), Louisiana (vapor products and e-cigarettes), and North Carolina (vapor products) added $0.05 per fluid ml. Louisiana’s law increased the price of consumable nicotine liquid solution or other material containing nicotine that is depleted as a vapor product.
New Jersey passed legislation raising the price of nicotine liquid by $0.10 per fluid ml. West Virginia increased the price of e-cigarette liquid by $0.075 per ml. Puerto Rico legislature approved a bill to increase the price of e-cigarettes by $3, nicotine cartridges by $0.05 for every millimeter of nicotine solution or any other substance in each nicotine cartridge, and vaporizers by $6 for every unit.
Legislation increasing the price of e-cigarettes, other electronic smoking devices, and e-liquids can encourage users to quit, seek and sustain cessation, prevent youth initiation, and reduce consumption among those who continue to use them. Many states have taken proactive steps to stem the tide using the fact that young people are price sensitive. Perhaps we’ll see some proposals from the Arizona State Legislature. However, how successful the effort will be depends on the makeup and view of the next legislature and governor.
Kids Care Included in the AHCCCS Budget Request
AHCCCS’ 2020 budget request includes a general fund request of $7.9 million for KidsCare. The request was made under the assumption that the KidsCare trigger law will be amended this coming legislative session, preventing a freeze to CHIP enrollment.
There’s a trigger in state law that automatically freezes the Arizona KidsCare program if FMAP (the federal contribution) drops below 100%. Under current federal law, the match rate is scheduled to go down to about 90% (9 federal dollars for every state dollar) on October 1, 2019. So, if the current law isn’t changed during this next legislative session then we’ll likely have an enrollment freeze of the Kids Care program again this time next year.
The fact that AHCCCS included the $7.9M in state matching funds in the budget is encouraging, but the legislature would need to change the statute and appropriate the funds to prevent an enrollment freeze.
Kids Care is run by AHCCCS and currently covers about 30,500 kids with a set of benefits and reasonable premiums. It’s only available for kids in families that don’t qualify for regular Medicaid and who live in a family that makes under 200% of poverty.
Kids Care & ACA Advocacy
Election season is upon us and KidsCare and healthcare generally are key issues we want candidates for state office to weigh in on. The Children’s Action Alliance has a helpful election’s page up and running now! On it you can link to it to point the communities your organization serves to where they can contact candidates, see where candidates stand on issues, and register to vote. CAA is also launching a digital ads campaign around the key questions for candidates today.
Here’s a fact sheet from Families USA explaining what’s at stake for people with pre-existing conditions in Arizona. Currently, there is a lawsuit, Texas v Azar, making its way through the courts that challenges the ACA as unconstitutional.
Arizona Attorney General Mark Brnovich has signed Arizona on as a plaintiff state. If the lawsuit is successful, the protections for people with pre-existing conditions, along with other parts of the ACA, will be repealed.
We don’t know the timetable on a final court decision, but we do know that, if the lawsuit is successful, Arizona’s law is set up so that these protections will essentially be repealed simultaneously in state statute.
Leveraging State Policy to Reduce Maternal Mortality
Black 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 super-interesting 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: state health departments and Medicaid agencies.
Medicaid finances 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 and coverage after delivery vary between states. As a result, some women lose coverage or Medicaid eligibility after that 60-day period (mostly in states without Medicaid expansion).
In states (like AZ, which expanded Medicaid), 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 the key. 29 states including Arizona, have committees that review maternal deaths and make public policy recommendations. Back in 2011, Arizona passed, and Governor Brewer signed a bill that amended our child fatality review statutes by adding reviews of maternal deaths. This change charged our existing Child Fatality State Teams to review maternal deaths (called the Maternal Mortality Review Subcommittee) and make policy recommendations. The primary goal for the Team is to identify preventive factors and make recommendations for systems change.
One of the best parts of these review boards is that it is not just public health, but it's other agencies and community docs and corrections and academics all coming together to review these deaths. Here are some of the recommendations from the most recent report:
All pregnant women must have access to prenatal care;
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;
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;
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, the 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 LARC 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.
FDA Steps It Up (A Little Bit)
In September, the FDA Commissioner called out the manufacturers of electronic cigarettes for their clear efforts to market to teenagers and put them on notice that additional regulations could be on the way. The FDA is at least considering removing certain flavored e-cigarettes from the market and shortening the time to market review for most cigarettes now being sold. At a press conference on September 19th, he acknowledged that his agency has failed to recognize the extent of the problem.
Here’s a direct quote from him:
"We didn't predict what I now believe is an epidemic of e-cigarette use among teenagers, and today we can see that this epidemic of addiction was emerging when we first announced our plan last summer. Hindsight, and the data now available to us, reveal these trends. And the impact is clearly apparent to the FDA."
The FDA issued more than 1,300 warning letters and civil money penalty complaints to retailers who illegally sold JUUL and other e-cigarette products to minors during a nationwide. The action also included a request to 5 e-cigarette manufacturers to put forward plans to immediately and substantially reverse these trends toward marketing to teens or face a potential decision “to reconsider extending the compliance dates for submission of premarket applications.”
Senate Passes Budget that Including Health Agencies
In September, the US Senate passed the FY19 Defense and Labor, Health and Human Services and Education appropriations bill. The bill provides funding for health agencies for FFY19. The bill contains a continuing resolution through December 7, 2018 in case the House doesn't take action on the bill in short order. Here's a summary:
CDC: $7.9B which is an increase of $126 million from FY18. The bill creates a $50M infectious disease rapid response fund (but the funds only become available for use in the event of a public health emergency). The bill includes $10M to continue efforts to track children and families affected by the Zika virus and $5M to address infectious diseases related to the opioid crisis.
HRSA: $6.8B, a $107M increase from FY18. This funding includes a $26M increase for the Title V Maternal and Child Health block grant and a $12M increase for the Healthy Start program.
SAMHSA: $5.7B, which is a $584M increase from FY18. Sadly, the legislation maintains a prohibition on federal funds for the purchase of syringes or sterile needles but allows communities with rapid increases in cases of HIV and hepatitis to access federal funds for other stuff like substance use counseling and treatment referrals. The bill also includes $1.5B for the state opioid response grants.
The bill doesn't include the bad policy riders that were in previous versions that would have eliminated funding for important reproductive health services (Title X).
State Action to Stem Rising Prescription Drug Costs
By Association for State and Territorial Health Officials Staff
The high cost of prescription drugs is a persistent problem in the United States, with about 10 percent of overall health spending attributed to prescription drugs. In recent years, there has been increased interest among states to address the rising cost of prescription drugs. Just this year, 24 states passed 37 bills to stem rising drug costs. In total, state legislatures have introduced 160 bills targeting prescription drug costs in 2018.
States have pursued a wide range of strategies to tackle the high cost of prescription drugs, including policies that address drug price transparency, rate setting requirements to prevent price gouging, drug importation programs, generic drugs companies, and pharmacy benefit manager transparency.
Drug Price Transparency
Controlling healthcare costs is one of the three elements of the Triple Aim, along with improving population health and patient care experience. As a first step toward controlling costs, states are seeking more price transparency requirements from drug manufacturers. In 2018, six states passed legislation addressing drug price transparency. Many of these laws adopt more stringent transparency policies requiring drug manufacturers to justify price increases over certain thresholds. For example, Connecticut requires drug manufacturers to justify price increases for specific drugs if the price increases by 20 percent or more in a year or 50 percent over three years.
Price-Gouging and Rate Setting Requirements
Anti-price gouging and rate setting requirements use information collected from transparency laws to allow states to impose penalties for excessive drug price increases. Currently, Maryland is the only state with an anti-price gouging law. The policy allows the state Medicaid agency to notify the state’s office of the attorney general when an essential off-patent brand name drug or generic medication has an excessive price increase.
Maryland’s attorney general can then request justification from manufacturers for the price increase. If the rationale of the price increase is deemed unjustified by “the cost of producing the drug, or the cost of appropriate expansion of access to the drug to promote public health,” the state can impose civil penalties or use other mechanisms to penalize the manufacturer. However, a lawsuit has since been filed in federal court by drug manufacturers asserting violations of Constitutional law as it relates to interstate commerce. To date, twelve other anti-price gouging bills have been introduced in states, although none have been enacted.
Earlier this year, Vermont became the first state to pass a drug importation bill, allowing the state to import wholesale prescription drugs from Canada for use by all state residents. The law requires the designation of a state agency to become a licensed drug wholesaler, or to contract with a licensed drug wholesaler. Several steps remain before Vermont’s program can go into effect, including the state health department receiving federal approval from HHS by July 2019. In addition, although the Utah legislature failed to pass a bill that would have created a program for importing drugs from Canada, the legislature requested that the Utah Department of Health conduct a feasibility study associated with drug importation.
Recently, Maine passed a law requiring brand name manufacturers to make samples of drugs available to generic drug manufacturers, with the intention of promoting competition by increasing access of information for companies developing lower-cost generic drugs. The law states that, “In order for there to be competition in the prescription drug market, developers of generic drugs and biosimilar biological products must be able to obtain quantities of the reference listed drug or biological product with which the generic drug or biosimilar biological product is intended to compete.”
Pharmacy Benefit Managers
Several states have passed bills regarding pharmacy benefit managers (PBMs), which require increased transparency and disclosure of information on drug rebates and concessions. For example, Nevada passed a law in 2017 requiring PBMs to disclose the amount of rebates received from drugs used to treat diabetes. Connecticut’s drug price transparency law also requires PBMs to provide information on rebates and other price concessions received from drug companies. Mississippi passed a law preventing PBM gag clauses, which stop pharmacists from sharing information with patients on lower-cost drug options.
Other State Policies
In Montana, the legislature passed a bill establishing an interagency committee to study state drug pricing and spending trends, which will make recommendations to the state legislature on drug pricing policies in late 2018. In addition, New York implemented an annual cap on drug spending in its Medicaid program. Under the law, if spending projections extend beyond the cap, the state health department must identify the costliest drugs and attempt to negotiate additional rebates with manufacturers. This law also gives the state the authority to develop an independent panel that can penalize manufacturers through various mechanisms.
Emerging state legislation to address the rising cost of drug prices in demonstrates potential paths forward to address drug prices at the state level. The National Academy of State Health Policy (NASHP) has developed model legislation to address drug price transparency, drug importation, rate setting, and pharmacy benefit managers. The NASHP resource includes model legislation for states, bill text from states that have already passed legislation, and relevant briefing documents.
Congress is Back in Session: Important Bills in the Balance
Members of the U.S. House of Representatives return to Washington D.C. this August. They’ll be discussing important public health bills including the Labor-HHS-Education appropriations bill for fiscal year 2019 and the reauthorization of the Farm Bill.
In July, the Senate passed H.R. 6157 which is the combined Defense and Labor, Health and Human Services, Education and Related Agencies appropriations bill for FY19. This one is the eighth and ninth out of 12 spending bills to be passed by the Senate for FY19. The legislation includes increased NIH funding and boosted resources for opioid treatment, prevention, and recovery programs. Here’s a list of some of the adopted amendments:
Schumer-Collins amendment to increase funding for Lyme disease activities (3759).
Cortez-Masto-Ernst amendment to provide for conducting a study on the relationship between intimate partner violence and traumatic brain injury (3825).
Peters-Capito amendment to ensure youth are considered when the Substance Abuse and Mental Health Services Administration follows guidance on the medication-assisted treatment for prescription drug and opioid addiction program (3870).
Heitkamp amendment to provide funding for the SOAR (Stop, Observe, Ask, Respond) to Health and Wellness Program (3893).
Casey amendment to provide funding for the Secretary of Health and Human Services to establish the Advisory Council to Support Grandparents Raising Grandchildren (3875).
Schatz-Hirono amendment to assess the ongoing mental health impact to the children and families impacted by a volcanic eruption covered by a major disaster declared by the President in calendar year 2018 (3897).
Heller-Manchin amendment to provide additional funding for activities related to neonatal abstinence syndrome (3912).
Heitkamp-Murkowski amendment to improve obstetric care for women living in rural areas (3933).
Durbin-Grassley amendment to provide for the use of funds by the Secretary of Health and Human Services to issue regulations on direct-to-consumer advertising of prescription drugs and biological products (3964).
More States following AZ’s Lead to Establish Overdose Fatality Review Teams
Overdose fatality reviews allow states to better understand the circumstances surrounding fatal drug overdoses so they can design better interventions. Review teams can uncover the individual and population factors and characteristics of potential overdose victims. Knowing the who, what, when, where, and how of fatal overdoses provides a better sense of the strategies and coordination needed to prevent future overdoses and results in the better allocation of overdose prevention resources and services.
Nine states including AZ have set up teams so far. The Network for Public Health Law provides a good overview of the states that have review teams. Here are some of the laws [OK (HB 2798), RI (S 2577 and H 7697), and VA (SB 399)], DE (HB 211) and our own (HB 2038). The laws establishing fatal overdose reviews often include the entity authorized to create and manage the review team or committee, the membership requirements for teams or committees, the scope of work of the teams or committees, confidentiality and liability protections, and data access authorizations.
FY 17-18 Opioid Emergency Response Report
The ADHS released their 2017 Arizona Opioid Emergency Response Report in July. The report confirms that there’s been real progress as a result of the policy interventions from a host of organizations in the public health and health care sectors, health insurance, EMS, and law enforcement sectors in the last few years… but that there’s clearly more work to do. More time will also be required for the existing interventions to mature and yield results.
The summary portion of the report is about 30 pages long- but the real meat of the report is in the Appendices. Many of you will be particularly interested in Appendix I and J at the very end of the report. Here are some of the findings:
There were 949 overdose deaths in the FY 17-18 timeframe which is a 20% increase from 2016 and a 109% increase since 2012.
Heroin was responsible for 51% of the growth in opioid deaths over the last 5 years.
The number of opioid prescriptions filled in AZ declined 40% last fiscal year.
The percent of patients receiving referrals to behavioral health or substance abuse treatment services after an overdose increased from 45% in June 2017 to 73% in May 2018.
Naloxone is becoming much more common in the community, among EMS and law enforcement.
Can the Arizona Medical Marijuana Fund pay for Drug Treatment?
On August 6, 2018, Attorney General Brnovich wrote an Opinion stating that state lawmakers (or presumably the ADHS) can use qualified medical marijuana patient card fees to operate programs to help get people off of other drugs. The Arizona Medical Marijuana Fund (administered by the ADHS) contains more than $44M right now (the fund consists of fees paid by patients for cards, other card fees like dispensary agent cards, and dispensary application fees).
Here’s a simple Q & A from the Opinion:
Q. Could the Legislature, through the budget process, direct the ADHS Director to appropriate some of the Fund monies to help people addicted to drugs?
A. Yes. The Legislature may direct the ADHS Director to spend Fund monies for programs to help people addicted to drugs if: (1) the appropriation is passed with a three-fourths vote of each legislative chamber; (2) the appropriation does not deplete the Fund and leave insufficient revenues to cover the immediate and future costs of the initiative; and (3) the appropriation furthers the purpose of the AMMA, i.e., it relates, in some way, to medical marijuana.
The AG Opinion states that:
“The Legislature may direct the ADHS Director to expend monies from the Fund for programs to help people addicted to drugs if: 1) the appropriation is passed with a three-fourths vote of each house; 2) the appropriation does not deplete the Fund and leave insufficient revenues to cover the immediate and future costs of the initiative; and 3) the appropriation furthers the purpose of the AMMA.
To that end, an appropriation for activities related to distinguishing between medical and nonmedical uses of marijuana, protecting patients and providers from criminal prosecution, or carrying out, implementing, or administering the AMMA would meet this criterion. If these requirements are met, it is not necessary to submit an appropriation request to Arizona’s voters.
Substance Abuse Prevention Needs Assessment
AHCCCS is conducting a Statewide Substance Abuse Prevention Needs Assessment to better understand what prevention activities are going on and what the prevention needs in our communities are and about the experiences of folks who work or volunteer in substance abuse prevention. If you fit the bill, it would be great if you could take 10 minutes to support this important effort by taking this Arizona Substance Use Prevention Workforce Survey.
Medicaid Program Scorecard Released by Feds
The Centers for Medicare & Medicaid Services released a new Medicaid program scorecard earlier this year. It includes some quality metrics along with federally reported measures in a Scorecard format.
The data that’s built into the state by state scorecard only uses information that states voluntarily submit. There are 3 main categories (state health system performance; state administrative accountability; and federal administrative accountability) and lots of subcategories.
The Scorecard includes a State Health System Performance Measures portion. Some of the subcategories that are reported in that category on a state by state basis are things like include hospitalization for mental illness, opioid use in high dosage, alcohol and other drug dependence treatment, and other chronic health conditions.
Opioid Public Health Emergency Executive Order Ends
In May, the Governor of Arizona officially ended the emergency public health declaration that was signed via an Executive Order about a year ago. Much has been accomplished over the last year including implementing legislation that improves prescribing practices and enhances emergency responses and increases access to treatment. Of course- the work will go on. The epidemic didn’t start overnight, and it surely won’t end overnight. You can read the official end of the emergency declaration here.
Legislative Session Webinar Posted
The UA has posted AZPHA's webinar from May that summarizes the legislative session from a public health perspective. The whole thing is about an hour long. You can check out the webinar on the UA Telemedicine Website. Here’s the PowerPoint.
Sonoran Prevention Works Scores Syringe Access Grant
Sonoran Prevention Works received a $125,000 grant in May from the Vitalyst Health Foundation to support advocacy and education for syringe access programs – a proven harm reduction strategy in response to the opioid crisis and rising hepatitis-C and HIV infection rates. They’ll be partnering with the University of Arizona College of Medicine Tucson and Creosote Partners to destigmatize syringe access programs and understand the comprehensive needs of people who inject drugs.
The Maricopa County Sheriff's Office will also work with Sonoran Prevention Works to implement a needle stick prevention program and to educate law enforcement on injection drug use. These partnerships will work to support policy change that treats substance use as a public health issue.
Snapshot of Public Health-related Bills in 2018
HB 2324 Voluntary Certification for Community Health Workers
HB 2088 Public Health Guidelines in Schools
HB 2235 Dental Therapy Licensure
SB 1245 SNAP- Fruits and Vegetables
HB2371 Statewide Food Truck Licensing
Public Health-related Bills Signed Into Law (2017)
HB 2038 Drug overdose review teams; records was passed and signed. Once it takes effect later this year, law enforcement agencies will now be required to provide unredacted reports to the chairperson of a local Drug Overdose Fatality Review Team on request.
HB 2228 Annual waiver, applicability was signed by the Governor. It’s good. It will direct AHCCCS to exempt tribes from their directed waiver request that asks for CMS permission to implement work requirements for some Medicaid members. The recently submitted Waiver request includes an exemption for American Indians, however, this would place the exemption into statute.
HB 2323 Schools; inhalers; contracted nurses was signed by the Governor. This bill adds contracted nurses to the list of people who are authorized to provide emergency inhaler medication in case of respiratory emergencies. Some charter and independent schools don’t employ nurses directly but engage them through contracts.
HB 2484 local food tax; equality, which will ban Arizona cities and counties from taxing sugary drinks as a public health intervention.
SB 1022 DHS; homemade food products ADHS will be required to establish an online registry of food preparers that are authorized to prepare "cottage food products" for commercial purposes. Registered food preparers would be required to renew the registration every three years.
SB 1083 Schools; recess periods was passed and signed! Beginning next school year K-3 will need to have at least 2 recess periods. Grades 4 and 5 will need to have 2 recess periods the year after that.
SB 1389 HIV; needs assessment; prevention was signed by the Governor last week. It requires the ADHS to establish and implement an HIV Action Program.
SB 1394 Abortion reporting was passed by the House and signed by the Governor. It will require the ADHS to collect and report additional data regarding abortions that are performed in AZ.
HB 2038 Drug overdose review teams; records
HB 2228 Annual waiver, applicability
HB 2484 local food tax; equality
SB 1022 ADHS; homemade food products
SB 1083 Schools; recess periods
SB 1389 HIV; needs assessment; prevention
SB 1394 Abortion reporting