Recently Passed Federal Public Health Legislation

Congress has passed several bills in the last few weeks related to public health.  Here’s a quick summary and links to the laws.

Improving Access to Maternity Care HR 315

This bill requires HRSA to identify maternity care health professional target areas and publish data comparing the availability of and need for maternity care health services in health professional shortage areas and areas within those areas.

Preventing Maternal Deaths Act of 2018 HR 1318

This bill authorizes HHS grants to states to review maternal deaths, publish reports with the results.

PREEMIE Reauthorization Act of 2018  S 3029

This bill increases federal research on preterm labor and delivery, improve the care, treatment, and outcomes of preterm birth and low birthweight infants. 

Agriculture Improvement Act of 2018 – The Farm Bill HR 2

The Farm Bill reauthorizes food security programs through FY23 including Supplemental Assistance Program (SNAP) and SNAP nutrituon education.  It also removes hemp from the Controlled Substances Act, which would legalize hemp production and therefore changes how CBD is regulated.

State Offices of Rural Health Reauthorization Act: S 2278

This bill reauthorizes $12.5M annually through FY22 for the Federal Office of Rural Health Policy to make grants to each state office of rural health to improve health care in rural areas. This bill was approved by both the House and Senate but is not yet signed.

The Action for Dental Health Act of 2018

This bill provides an opportunity to improve oral health across the country.  The bill will provide additional resources to the CDC to increase funding for groups and organizations to qualify for federal grants that develop programs and expand access to oral health education and care in states and tribal areas

CDC will still need to flesh out the grant guidance in the coming months before they put out their announcement with the application and expectations. 

PEPFAR Extension Act of 2018  HR 6651

This bill extends certain provisions of the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.

Sickle Cell Disease Research, Surveillance, Prevention, and Treatment Act of 2018  S 2465

This bill reauthorizes a sickle cell disease prevention and treatment program and to authorizes funding for grants for research, surveillance, prevention, and treatment of heritable blood disorders.

Infrastructure for Alzheimer’s Act S 2076

This bill would create an Alzheimer’s public health infrastructure across the country to implement effective Alzheimer’s interventions focused on public health issues such as increasing early detection and diagnosis, reducing risk and preventing avoidable hospitalizations.

Federal Government Shut-Down & Public Health

Federal funding for several federal agencies and programs expired on Saturday. The President wouldn’t sign a Senate-approved short-term continuing resolution extending funding for some federal agencies through Feb. 8.  The House subsequently approved a short-term continuing resolution that included $5.7 billion for a wall at the US Mexico border. The Senate couldn’t pass that House Resolution, and federal funding for several agencies and programs then expired, forcing a shut down of some programs.

The shut-down won’t impact very many core public health programs (except for WIC and IHS- which I’ll get to in a sec). That’s because a couple of months ago Congress passed a bill that included funding for the HHS family of agencies: CDC, HRSA, SAMHSA, NIH, CMS, FDA, AHRQ.  

Other federal agencies and programs, such as WIC, EPA, and the Indian Health Services are affected because they weren’t in the HHS funding bill. Public health programs outside of HHS are affected (WIC is within the US Department of Agriculture- not HHS).

Fortunately, Arizona has enough funding to keep WIC clinics open for a few weeks at least. Providing this information broadly is important so participating families don’t think the shutdown means that WIC clinics will be closed due to the shutdown.

Public health programs working in Indian Country funded by HHS will not be impacted butn some other IHS services will be impacted. IHS will continue to provide direct clinical health care services, but some programs and activities that aren’t directly related to the safety of human life may not be available during a shutdown.

Tribally-operated health programs will continue to operate under the direction of the Tribe- and each Tribe will determine how to address the impact from a government shutdown. 

For more information about initial estimates for activities under the appropriations lapse you can review the HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Agriculture and Interior Appropriations.

My “Mea Culpa” on E-cigarettes

There have been some compelling data in the last several months demonstrating a profound increase in e-cigarette use among the nations and Arizona’s youth.

E-cig use among youth has skyrocketed in the past year at a rate of epidemic proportions. According to data from the CDC and FDA’s National Youth Tobacco Survey, the percentage of high school-age children reporting past 30-day use of e-cigarettes rose by more than 75 percent between 2017 and 2018. Use among middle school-age children also increased nearly 50%.

The uptick in e-cigarette use has led overall tobacco product use to increase by 38% among high school students (to 27.%) and by 29% among middle school students (to 7.2%) in the last year. The results are similar in Arizona.

A few years ago when I was the Director over that the Arizona Department of Health Services I was convinced that e-cigarettes had a chance of providing a net public health benefit by providing active smokers with a new way to quit tobacco while posing a limited public health risk to youth and non tobacco smokers. My staff would often challenge my belief, but I clearly wasn’t listening closely enough.

I turned out to be dreadfully wrong. I didn’t anticipate that vaping among kids would become so popular or that the manufacturers would get so crafty at making them so attractive to kids and to manufacture them in a way that makes them virtually indistinguishable from things like thumb drives.

It’s now clear that e-cigarettes are causing more harm than good- and it’s time to do something about it. The FDA has been taking some actions in the last several months that look promising. I talked with Senator Elect Heather Carter this afternoon and she told me that she’s been working on several approaches to address the epidemic here in Arizona.

Mea Culpa


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.

US Supreme Court Declines to Hear Appeal Regarding Reproductive Health

This week the US Supreme Court declined to hear a case that would have given them an opportunity to overturn a lower court ruling that found that Medicaid agencies can’t exclude providers offering preventive reproductive health services like annual health screens, contraceptive coverage and cancer screening because they also offer abortion services.  Lower federal courts had ruled that while states have broad authority to ensure that Medicaid health care providers are qualified, that power has limits. 

The case isn’t about elective abortion services per se (the Hyde Amendment from 1977 makes it clear that federal funds can’t be used to pay for abortions except in cases of rape, incest, or life endangerment). The question is whether providers can be excluded from Medicaid contracts for preventive services like annual health screens, contraceptive coverage and cancer screening because they also separately offer abortion services outside of their public dollar contracts. 

The Supreme Court’s decision to decline the case will have implications here in Arizona. In 2016, Governor Ducey signed a bill giving the director of the AHCCCS the power (at his or her discretion) to disqualify any provider that doesn’t fully segregate the public dollars they get and ensure that none of those funds went toward providing elective abortions- including overhead expenses like rent, lights and A/C.

While that law is still on the books (as ARS 36-2930.05), it hasn’t been implemented. After a lawsuit was filed back in ’16, attorneys for AHCCCS agreed not to implement the law and stipulated that AHCCCS won’t try to cut family planning dollars from Planned Parenthood or any other organization because it hasn’t fully segregated out the costs of abortion services to the satisfaction of the director.  The implementation hold agreed to in the stipulation was until Rules (Administrative Code) could be adopted- which they estimated would take about 2 years.

In exchange, the attorneys for the providers agreed to drop their lawsuit challenging the legality of the measure until there are actual rules in place.  I checked on the AHCCCS and Secretary of State’s website and can’t find any Rules fleshing out the criteria- but I might have missed them.

In any event- the fact that the US Supreme Court this week declined to hear a case similar to Arizona’s suggests that- at least for now- the status quo remains…  and Arizona’s Managed Care Organizations that contract with AHCCCS are free to contract with Planned Parenthood or other providers even though they may not be segregating expenses as required in ARS 36-2930.05.Of course- that could change at any time if the Supreme Court changes their mind and agrees to hear a similar case in the future.

Support School Attendance Vaccination Requirements

Please express your support for immunization requirements for public school attendance and informed use of appropriate vaccine exemptions by signing on to this letter of support to the Governor.

By simply clicking here you can add your name to the growing list of Arizonans that believe that it’s important to protect Arizona children against vaccine preventable diseases and protect community immunity that protects the most vulnerable among us. Here’s the letter:

Dear Governor Ducey,

We, the undersigned, want to express our full support for this resolution adopted by the Arizona Medical Association (ArMA):

“ArMA supports adopting requirements that parents (or guardians) who do not wish to have their children vaccinated receive public health-approved counseling that provides scientifically accurate information about the childhood diseases, the available vaccines, the potential adverse outcomes from catching diseases, the risks unvaccinated children pose to children who cannot be vaccinated for medical reasons, the risks of vaccine side effects, and the procedures that are implemented to exclude unvaccinated children if an outbreak of disease occurs in the area administered by the local or state public health agency.

ArMA also supports adopting requirements that parents annually sign an affirmative statement that acknowledges the risks they are accepting for their own children and the children of others by claiming a personal exemption from mandatory vaccination requirements.”

As residents of Arizona, we actively support and encourage you to work with the Arizona Department of Health Services (ADHS), all County Health Departments, and longstanding partners of The Arizona Partnership for Immunization (TAPI) to maintain high levels of immunization coverage rates in our schools and our communities…to keep your constituents safer and healthier.


Action for Dental Act Passed

The Action for Dental Health Act of 2018 was overwhelmingly passed by congress last week providing an opportunity to improve oral health across the country.  The bill will provide (once signed by the President) additional resources to the CDC to increase funding for groups and organizations to qualify for federal grants that develop programs and expand access to oral health education and care in states and tribal areas.

Grantees are expected to include dentistry and hygiene programs working in rural and underserved areas as well as organizations helping to increase oral health literacy and disease prevention in low-income and minority communities.  The Bill is expected to a=invest an additional $133M over the next four years.

CDC will be entering into contracts with state, county, or local public officials and other stakeholders to develop and implement initiatives to: (1 improve oral health education and dental disease prevention;  2) reduce geographic barriers, language barriers, cultural barriers, and other similar barriers in the provision of dental services; 3) establish dental homes for children and adults; 4) reduce the use of emergency departments by individuals who seek dental services more appropriately delivered in a dental primary care setting; or 5) facilitate the provision of dental care to nursing home residents.

CDC will still need to flesh out the grant guidance in the coming months before they put out their announcement with the application and expectations.

Action Alert to Save Nutrition Education Programs

The Farm Bill is currently in its final negotiations, and important funding for SNAP-Ed programs in Arizona and across the country is at stake. We need your help to urge Congress to maintain the Senate version of the Farm Bill to save this critical support for these programs.

The SNAP-Ed program provides nutrition education and resources to thousands of Arizonans. If the Senate version of the funding is not maintained in the final Bill (expected to be approved before this congress exits), Arizona won’t be able to offer effective food and nutrition programs to low-income communities who need it, especially in Congressional Districts 1 and 3.  

The new House of Representatives funding formula would significantly shift SNAP-Ed grants away from more than 15 other states, thus ending programs for people in hundreds of low-income communities throughout the country. 

Click here to urge Congressman Tom O’Halleran and Congressman Raúl Grijalva to maintain the Senate version of the Farm Bill to save this critical support for these programs!

State Legislature Health Committees

Senate Health & Human Services Committee

The Senate Health and Human Services Committee will meet this Session on Wednesday mornings at 9 am in Senate Hearing Room #1.  The Chair will be Senator Kate Brophy McGee with Sen, Heather Carter as the Vice Chair.  Other committee members will be Tyler Pace, Rick Gray, Sylvia Allen, Rebecca Rios, Tony Navarette, and Victoria Steel.

House Health & Human Services Committee

The House of Representatives Health and Human Services Committee will meet this Session on Thursday mornings (no room named yet).  The Chair will be Rep. Nancy Barto with Jay Lawrence serving as Vice Chair.  Other members are Representatives John Allen, Gail Griffin, Becky Nutt, Kelli Butler, Pamela Powers-Hannley, Alma Hernandez and Amish Shah.

State Agency Budget Requests

Here’s a summary of some of the budget requests that were made by state agency directors for the upcoming fiscal year:

Department of Health Services

  • Seeks increased compensation for “key” positions to reduce turnover & vacancy rates.  No dollar figure is attached.

  • Requests an increase of $4.1 M lump sum from Health Licensing Fund & ongoing Radiation Regulation appropriation increase of $600,000 from Health Service Licensing Fund to cover administrative expenditures & ongoing growth & workload for Licensing Division.

  • Asks for $550,000 from the General Fund for an “administrative shortfall” at the Arizona State Hospital.

  • Requests $500,000 from the ADHS Indirect Fund for the public health emergency fund.

  • Seeks $200,000 from the Land Fund to pay for higher costs for services at the State Hospital for pharmacy, dietary, EHR, housekeeping, etc.

  • Asks for an appropriation increase of $600,000 from the Newborn Screening Fund to cover administrative costs.

  • Asking for a $240,000 in state general funds for the Behavioral Risk Factor Surveillance Survey (under a cooperative agreement with CDC).



  • Requesting a net increase of $44.7 M over the current year.

  • Seeks an overall acute capitation rate increase of 1.9% over the blended rates from the prior year

  • Asks for overall weighted capitation rate increase of 2.5% over baseline across all populations.

  • Anticipates the FMAP rate (federal matching rate percentage) for the acute traditional members of 69.48%

  • Includes a $7.9M dollar figure if state law is modified to prevent freezing KidsCare (because of the reduction in federal payments (FMAP) moving from the current 100% to 90% beginning October 1, 2019)


AZ Department of Economic Security

  • Requests $41.6 M in increased funding to help providers cover some of the costs that providers of services for folks with developmental disabilities to cover costs for the coming increase in the minimum wage next fiscal year. 

  • Pursues use of federal Child Care Development Block Grant of $55.8 M (OF) which would allow child care rates to increase from 2000 to 2010 market rate and serve an additional 5,000 children