Shelby Public Health Law, State Legislature

2021 Legislative Session Summary

On Friday, June 25th, the Arizona House of Representatives wrapped up work on a $12.8 billion budget that dramatically overhauls the state’s income tax code shielding wealthy Arizonans from paying the voter-approved tax in Prop 208 to boost teacher pay and mandates new civics curriculum in public schools.

This legislative session will be remembered for the missed opportunities despite record revenue thanks to federal dollars that were appropriated to Arizona to fight COVID-19 and the passage of a skinny budget last year, legislators faced a more than billion-dollar revenue surplus.

Budget Outcome

This record amount of revenue could have been allocated to reduce the state debt, buy back the buildings at the Capitol that were sold during the economic downturn in 2010. They also could have used the funds for unfunded or underfunded public needs and programs like covering oral health for pregnant Medicaid members.

They also refused to make a $12M investment in KidsCare even though the federal matching funds would have insured an additional 30,000 Arizona kids in a state that has one of the highest rates of uninsured children in the nation. There were no provider increases for caregivers for persons with developmental disabilities.

Here are the highlights of the specific state agency budgets:

AHCCCS

  • Adds a footnote requiring AHCCCS to report to the JLBC by September 30, 2022 on its progress in implementing services specified in the housing and health opportunities section 1115 waiver amendment.

  • Adds a footnote stating that $60 million in Expenditure Authority reverts from the Supported Housing line item in the event AHCCCS doesn’t receive federal approval for its housing and health opportunities section 1115 waiver amendment.

  • Adjusts the baseline by $228.3 M due to increase FMAP allocations

  • Adds $3.0 M for IT Operating Funds for each of the next 3 years

  • Allocates $6.0 M for GME in FY 22 with $6 M dedicated to Rural GME & $1.3 M dedicated to Urban GME and $9.0 M in FY 23 & FY 24

  • Increases for Elderly/Physically Disabled Providers with $13.3M with $7.0 M for SNF for FY 22, F& 23 & FY 24

  • Adds $60.0 M in Expenditure Authority for Supported Housing if the Section 1115 waiver is approved.

  • Provides $200,000 for SMI Housing Administration & requires report by members served & on waiting list for services

  • Shifts Prescription Drug Rebate Fund ($16.7 M) for FY 22, FY 23 & FY 24 while adding $16.7 M from Prescription Drug Rebate Fund

  • Adds funding of $.5 M in FY 23 with an increase to $.6 M in FY 23 and the $.8 M in FY 24 for Newborn Screening

  • Sets aside $6.0 for Opioid Treatment in FY 22

  • Adds 1 time fund from Prescription Drug Rebate Fund $78,000 (OF) for ‘PMMS Roadmap’

Department of Economic Security:

  • Adds $1.0 M for FY 22 – FY 24 for Area Agencies on Aging Providers

  • Allocates $15.4 M for FY 22, FY 223 & FY 24 for DD Providers (Reallocates $15.0 M of the base funding) as well as allocates $5.1 M for DDD state funding Long Term Care Costs

  • Provides $1.0 M in Homeless Youth Funding to start in FY 24

  • Adds a 5% Salary increase for 4,900 FTEs for $2.3 M for FY 22, FY 23 & FY 24

  • Provides 1-time funding $.5 M for FY 22 for After School/Summer Youth Program Funding as well exempts from non-lapsing

  • Sets aside in FY 22 $1.0 M for the State Long-Term Care Ombudsman as ongoing

  • Establishes a Sexual Violence Services Fund by adding $8.0 M

  • Adds to the baseline $14.5 M (TANF) due to Pandemic Assistance

  • Enhances the baseline by adding to the baseline $1.6 M for the Child Care Development Grant

  • Adds $1.0 B for Child Care Development Fund due to the ARP with these funds designated as non-lapsing

Arizona Department of Health Services:

  • Provides $1.6 M for 16 FTEs for FY 22, FY 23 & FY 24 for Long Term Care Surveyors

  • Adds $250,000 for additional High Risk Perinatal visit for FY 22, FY 23 & FY 24 as well as allots $5.8 M using Prop 108 funds for the additional screening tests

  • Adds $100,000 for expanding Child Fatality Review Team

  • Allocates $1.0 M for funding for Alzheimer’s Research in FY 22, FY 23 & FY 24

  • Allocates $1.0 M for adoption/birth certificate records

  • Earmarks $100,000 for 1 time funding FY 22 & FY 23 for Homeless Pregnant Women Services by using Health Services Lottery Fund

  • Sets aside $1.5 M in FY 22 & FY 23 for ‘Family Health Pilot Program’ with program for parents under 2 with restrictions on referrals for abortion

  • Reduces ER Medical Services Fund by $1.9 M by replacing with Prop 207 (marijuana) Funds

  • Require DHS to add Spinal Muscular Atrophy and X-Linked Adrenoleukodystrophy to the newborn screening panel by December 30, 2021. Require all congenital disorders that are included on the HHS Recommended Uniform Screening Panel to be added by December 31, 2023.

Budget Reconciliation Bills

Each year the legislature throws bills that had little support in committee or that were controversial into what are called BRB’s which is short for Budget Reconciliation Bills. This year there were some doozies. I’ll cover a few of them here before moving on to the regular bills that passed.

Governor Ducey and Director Christ have issued many harmful executive orders over the last few months using their emergency authority that I have covered extensively earlier. Recognizing that their authority may wane at some point, they made sure to include several of their harmful orders into law (using BRB’s). Below are a few:

SB 1819 Prohibits a county, city or town from making or issuing any order, rule, ordinance or regulation related to mitigating the COVID-19 pandemic that impacts private businesses, schools, churches or other private entities, including an order, rule, ordinance or regulation that mandates the use of face coverings, requires closing a business or imposes a curfew.

In addition, Ducey & Christ ensured that school districts can’t  require masks this fall (even elementary school students – who will not qualify for the vaccine by fall). They were able to insert this language into the K-12 budget bill – HB 2898:

15-342.05. Face coverings; requirement prohibition

A school district governing board may not require the use of face coverings by students or staff…  

Likewise, they locked in their executive order restrictions on university and community college COVID intervention strategies by inserting the following language into the higher education BRB (HB 2897):

15-1650.05. COVID-19 vaccine; face covering; testing

A public university or a community college may not require that a student obtain a COVID-19 vaccine or place any conditions on attendance or participation in classes including mandatory testing or face covering usage.

They also included SB 1819 in the budget bills, which puts substantial limitations on the ability of  a future  governor and a health director to declare a public health emergency.

  • Caps the next governor’s initial public health state of emergency at 30 days (beginning 1/2/23 – their last day in office).

  • Allows the next governor to extend a public health emergency for up to 120 days and prohibits subsequent extensions to 30 days.

  • Terminates a public health emergency after 120 days unless extended by the Legislature.

  • Allows the Legislature to extend the state of emergency, limiting extensions to 30 days.

Regular Bills

There were actually some good bills that came out of this legislative session. Here are a few of the highlights with a link to the actual bills:

Senate Bills

  • SB1250 – Legalizes overdose and disease prevention programs (i.e., syringe access programs) in Arizona.

  • SB1301 – Establishes a sixth Area Health Education Center at the University of Arizona that is specific to developing a workforce pipeline for Indian health care delivery.

  • SB1376 – Requires mental health lessons be included in K-12 health education curricula.

  • SB1486 – Legalizes fentanyl strips (possessing them was a felony)

  • SB1695 – Requires health insurers to cover single-tablet antiretroviral therapies without step therapy and prior authorization.

  • SB 1839 Phases out the Psychiatric Security Review Board and moves those responsibilities to the juducual branch. Audit showing PSRB is crappy Arizona Psychiatric Security Review Board (azauditor.gov)

  • SB1851 Outlines information that must be included in the Arizona State Hospital (ASH) financial and programmatic report. Establishes the Joint Legislative Psychiatric Hospital Review Council.

  • SB1847 Distributes $15M in excess funds from the Medical Marijuana Fund for the following purposes:

  • $5M to the county public health departments to address public health issues related to drug addiction and incarceration;

    1. $2M to the Institute for Mental Health Research for research to improve mental health services, research and education;

    2. $2M to the Primary Care Provider Loan Repayment Program & the Rural Private Primary Care Provider Loan Repayment Program (prioritizing providers in behavioral health);

    3. $2M to the Board of Medical Student Loans with a focus on psychiatry or other areas of practice;

    4. $1.25M to ADHS for suicide prevention;

    5. $1.25M to the AHCCCS for suicide prevention;

    6. $1M for the health care directives registry; and

    7. $250K to the ADHS’ Arizona Biomedical Research Commission for research the correlation between marijuana use and mental illness.

House Bills

  • HB2142 & SB1150 – Appropriates $1MM to develop a 2-year Agriculture Workforce Program at the Uof A Cooperative Extension to reimburse food-producing agricultural organizations for the costs of hiring apprentices.

  • HB2392 – Establishes separate GME program for health centers to encourage providers to practice in rural and underserved communities.

  • HB2454 – Requires telehealth services to be paid at the same rate as services provided in-person. Includes audio-only payment parity for behavioral health and substance abuse services.

  • HB2489 – Appropriates $4M to the housing trust fund. Amount is likely to be cut significantly as the bill moves forward. HB2562 and SB1327 – Establishes an affordable housing tax credit that is equal to at least 50% of the federal low-income housing tax credit for investments in qualifying rental housing.

 

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Shelby Disease Control, Federal Public Health Bud, Health Insurance, Maternal Health, Social Determinants

Arizona Town Halls: Spending One-Time Federal Funds

Over the next two years, Arizona will receive more than $12 billion dollars in one-time federal funding, through legislation like the CARES Act and the American Rescue Plan Act. The key question is, what do Arizonans think about how it might be used most effectively?

Arizonans’ voices need to be heard regarding how these funds can be used to maximize the resiliency and vibrancy of our communities. Vitalyst has partnered with Arizona Town Hall to create forums around the state to collect input on where these funds can be invested to address disparities in health and well-being.

Get connected to the process, and get your voice heard. See the dates below and register to engage in one of these forums. All sessions will be held from 12:00pm-1:00pm.

Shelby Disease Control

Exponential Growth is Back

It’s now crystal clear… Arizona is back in a COVID-19 exponential growth curve The situation has deteriorated so quickly that Dr. Gerald put out two updates this week- the latest one this morning, View his report here.

For the week ending July 11th, 5813 Arizonans were diagnosed with COVID-19, a 48% increase from last week’s initial tally of 3842 cases. This marks the 5th consecutive weekly increase and a brisk acceleration over past trends. The current rate, 80 cases per 100K residents per week, is increasing by 25 cases per 100K residents per week.

For historical reference, the last time Arizona recorded this level of transmission on an upward trajectory was October 18, 2020 when 6330 cases were reported. Unlike the update earlier this week, which suggested slowly worsening conditions, this week’s change makes it likely that Arizona will soon experience cases rates >100 per 100K residents per week marking a transition from substantial to high levels of transmission. Rt is meaningfully above 1 and may remain so.

Hospitalizations for COVID-19 are also increasing. As of July 14th, 689 (9%) of Arizona’s 8648 general ward beds were occupied by Covid-19 patients, a 26% increase from the previous week’s 548 occupied beds. Twelve percent (12%) of Arizona’s 1737 ICU beds were occupied with Covid-19 patients, a 22% increase from the prior week’s count of 152 patients.

Editorial Note: At this point, Governor Ducey, Director Christ and a majority of the state legislature have tied the hands of virtually the entire state to the point where nobody is allowed to do virtually anything to slow the spread of COVID-19.

K-12 schools are prohibited from requiring masks on campus. Universities and community colleges cannot require masks nor can they have a student code of conduct that has different expectations for vaccinated and unvaccinated students. Cities and counties cannot have mask requirements in their jurisdictions. Vaccination requirements and requirements for vaccination records are prohibited. It’s like they have us in reverse lockdown.

I was in the room many years ago with Dr. Bob England, Susan Gerard and many others as we were developing the Bill that provided the public health emergency authority in ARS 36-787 et seq to the governor and state health director. Never in our wildest dreams did we think that a governor and a state health director would use that public health emergency authority for such harmful purposes.

Wow, were we wearing rose colored glasses!

Shelby Disease Control, Vaccination

Ducey’s Staff Tells School Districts they Can’t Temporarily Exclude Unvaccinated Close Contacts of COVID Cases this Fall

IS THAT LEGAL?

NO. QUARANTINE AUTHORITY LIES WITH THE COUNTY HEALTH DEPARTMENTS

SUPERINTENDENTS WILL NOT BE REQUIRED TO COMPLY UNLESS GOVERNOR DUCEY & DIRECTOR CHRIST MISUSE THEIR EMERGENCY AUTHORITY AGAIN

On July 14, a person named Kaitlin Harrier, the governor’s policy advisor for education, sent a letter to the Peoria Unified School and Catalina Foothills School Districts stating that they cannot require a 10-day quarantine period for unvaccinated students who are close contacts of a confirmed COVID-19 case (which is their current policy).

The letter goes on to say that “A district or charter school may not require a student to receive a vaccine for covid-19…” – referring to a new law that passed with the state budget. However, the District’s policies don’t require kids to get vaccinated. They simply define a quarantine period for unvaccinated COVID-19 close contacts.

OK, so what’s going on?

Authority for controlling communicable diseases rests with the county health departments, not the governor’s education policy advisor…  and actually not with a school district. Rather, the county health departments have the exclusive authority to implement disease control measures like requiring quarantine of exposed unvaccinated students in school settings. That authority is in ARS 36-624:

36-624. Quarantine and sanitary measures to prevent contagion

When a county health department is apprised that infectious or contagious disease exists within its jurisdiction, it shall immediately make an investigation. If the investigation discloses that the disease does exist, the county health department or public health services district may adopt quarantine and sanitary measures consistent with department rules to prevent the spread of the disease.

So, what is a county health department supposed to do when there’s a COVID-19 outbreak in a school? The county health department’s decisions about isolation and quarantine are supposed to be consistent with the ADHS’ disease specific communicable disease rules – whether the exposure is at a school or elsewhere in the community.

A big problem is that, astonishingly, after more than 16 months, the ADHS (under Director Christ’s leadership)  hasn’t updated their communicable disease rules to define school or community control measures for COVID-19!  They have measures in Rule for SARS & MERS (which are also coronaviruses) but not for COVID-19. Let’s explore what the SARS/MERS rules say:

R9-6-361(B): A local health agency, in consultation with the Department, shall determine which novel coronavirus contacts will be quarantined or excluded, according to R9-6-303, to prevent transmission. 

So, the closest rule we have says that the county health department should work with the school districts to develop quarantine measures for unvaccinated students that are contacts of cases in school settings….  which is clearly in conflict with what Ms. Harrier wrote in her letter to the Peoria Unified School District and Catalina Foothills School Districts yesterday.

The ADHS hasn’t been completely negligent when it comes to providing guidance for COVID-19 exposures in the community. They have produced guidance (not in Rule) that provides some clarity for what county health departments should do when there are exposures among unvaccinated (or previously infected) students on campus. That guidance says the following:

**”A person who had known close contact with a confirmed COVID-19 case should quarantine for 14 days from their last exposure to the case. However, individuals may be eligible for shortened quarantine or may not be required to quarantine if certain conditions are met”.

The guidance doesn’t mention what those “certain conditions” are.

Bottom line:  Ms. Harrier’s letter to the Peoria Unified School District and Catalina Foothills School Districts is inconsistent with state law, the Arizona Administrative Code for communicable disease control, and even current ADHS guidance for unvaccinated close contacts.

Next, I expect Governor Ducey & Director Christ to issue a new Executive Order explicitly overriding  ARS 36-624 and R9-6-361(B) taking COVID-19 quarantine authority away from the county health departments. I also expect Director Christ to sell out again and modify the current ADHS Guidance to state that quarantining close contacts of exposed unvaccinated students in school settings is unnecessary – despite evidence and guidance to the contrary. Totally on-brand for her.

It won’t be the first time that they’ve abused their authority and/or ignored evidence for political reasons.

Shelby Affordable Care Act

New Report: Rental Eviction and the COVID-19 Pandemic

A new report released by The National Academies of Sciences, Engineering, and Medicine recommends urgent action over the next three years to address the immediate crisis and long-standing need for housing choice, affordability, and security across the United States as the federal moratorium on rental eviction is set to expire on July 31. For more, see the full report, press release, and interactive overview.

Shelby Vaccination

Help TAPI Gather Information about Underserved Communities in Arizona

The Arizona Partnership for Immunization is a state-wide coalition of over 500 members created to foster community wellness, advocate for good public policy and best immunization practices. TAPI would like to hear feedback about your communities. Completing the following survey regarding needs and barrier in underserved communities in Arizona counties will help TAPI facilitate more resources in Arizona communities.

Participate in the survey here: Underserved Communities in Arizona Survey (surveymonkey.com)

Shelby Vaccination

Legal Challenges Underlying COVID-19 Vaccinations

James G. Hodge, Jennifer L. Piatt, Leila Barraza, Rebecca Freed, Summer Ghaith, Nora Wells

Immunizing hundreds of millions against COVID-19 through the most extensive national vaccine roll-out ever undertaken in the

United States has generated significant law and policy challenges. Beyond initial controversies in the development and FDA authorization of the vaccines, multiple issues pervade their real-time allocation and administration. This commentary by AzPHA members examines premier law and policy issues shaping the COVID-19 national vaccination campaign: Legal Challenges Underlying COVID-19 Vaccinations

Shelby Disease Control

Dr. Gerald Produces Supplemental COVID-19 Epidemiological & Hospital Capacity Report

As you know if you’ve been following this blog throughput the pandemic, Joe Gerald, MD, PhD had been publishing weekly epidemiology and hospital capacity reports to help inform public health policy. He suspended those updates a couple of months ago- but wrote a supplemental report today owing to the impact that the Delta Variant is having in Arizona given our relatively anemic vaccination rates. From Dr. Gerald:

Given increasing COVID-19 rates and greater prevalence of the more transmissible Delta variant, I thought it appropriate to provide another update. Like my May update, Arizona continues to chug along with COVID-19 case rates of about 50 cases per 100,000 residents per week after making some progress. The major difference being that Mohave County, not Maricopa County, is behaving badly this month.

My best guess is that much of the recent increase in cases and hospitalizations is attributable to the July 4th holiday (short-term) overlaid on greater transmission pressure due to the Delta variant, waning individual precautions, and continued absence of any effective state mitigation efforts (long-term).

Nevertheless, reasonable levels of vaccination supplemented by a relatively large number previously infected but recovered individuals is providing sufficient population immunity to prevent a substantial resurgence like last summer. Basically, keeping a lid on things. I don’t think the pool of remaining susceptibles is large enough to facilitate sustained, large increases. Instead, transmission is more likely to hover 50 cases per 100K residents per week for the next month or so.

Our priority must be continued vaccination of adolescents/working-age adults to slow transmission and vaccination of older adults to prevent hospitalizations/deaths even though this latter group has already achieved 75%+ vaccination levels. While it ain’t going to happen, imposing mask mandates would drive transmission rates to even lower levels prior to school re-openings this fall.

As I mention in my update, the CDC erred when it tied mask recommendation to individual risk rather than population risk. That mistake has allowed COVID-19 to hang around at higher levels than it should have.

My ASU, NAU, and UA colleagues and I continue to monitor the outbreak and will alert you if conditions meaningfully worsen. We have experienced a tremendous collective trauma these past 18 months, and it is only natural to fear the other shoe is going to drop any minute. However, I convinced both shoes have already fallen with one grinding our face in the dirt this past January. In that spirit, I’m trying to tamp down my hyper-vigilance and heightened anxiety to new COVID-19 stimuli.

HERE IS DR. GERALD’S FULL SUPPLEMENTAL REPORT AND BELOW SOME OF THE SUMMARY REMARKS:

Except for small oscillations around 50 cases per 100K residents per week, viral transmission has not changed much since April of this year. Moderate levels of transmission are expected through the summer. Continued normalization of behaviors along with more transmissible variants (e.g., delta) will be mostly balanced by immunity from vaccination and recovery from past infection.

As of July 7th, new cases were being diagnosed at a rate of 56 cases per 100,000 residents per week. Over the next several weeks, rates can be expected to change relatively slowly, +/- 5 – 10 cases per 100,000 residents per week, as we continue to hover around Rt values of 1.

The emergence of another large wave of cases and hospitalizations seems unlikely despite the increasing prevalence of the Delta variant. While Arizona has not achieved herd immunity, total immunity is high enough to prevent a repeat of the past two outbreaks. However, unvaccinated, partially vaccinated, and immunocompromised individuals will remain at risk of severe infection as community transmission is expected to persist at moderate levels. o Vaccination remains the most important public health priority to reduce viral transmission among everyone and severe illness among those at greatest risk.

While not expected, mask mandates would lead to faster disease reduction by decreasing transmission in public settings. In retrospect, mask mandates should have been tied to population case rates (e.g., <10 cases per 100K residents per week) or some population vaccination goal (e.g., 80% fully vaccinated) instead of being lifted based on risk of infection to the individual. This was, and continues to be, a significant policy failure/error at the state and federal level.

With inadequate vaccination uptake, eliminating COVID-19 is no longer a plausible public health policy goal. COVID-19 is almost certain to become an endemic disease with varying temporal and geographic implications. Fortunately, vaccination will remain a viable disease control strategy offering a high degree of protection to those willing to accept them.

• Hospital COVID-19 occupancy is holding steady in the ward and ICU at 5 – 10% of occupancy. Access to care remains somewhat restricted as overall occupancy remains unseasonably high at 85%.

• Arizona Covid-19 fatality counts are now <50 deaths per week should remain below that level unless case rates meaningfully increase.

• According to the CDC, 54% of Arizona adults have received at least 2-doses of vaccine while another 8% have received 1-dose. Arizona passed peak vaccination rates in early April and these rates continue to erode. We are unlikely to achieve 70+% vaccination of our eligible population and should be prepared to adjust to COVID-19 as persistent risk. o Despite evidence of limited immune escape to the Delta variant, especially before completion of the full vaccination sequence, vaccination continues to provide extraordinarily high levels of protection from infection and severe illness.

Shelby Disease Control

Governor Rescinds Pandemic-related Executive Orders

Governor Ducey repealed 25 pandemic-related Executive Orders last week. Many of them were repealed after the legislature locked some into state law, like restricting universities and K-12 from managing COVID spread in their systems.  Additional rescinded Executive Orders include:

  • Executive Order, which 2020-17 deferred requirements to renew state agency and board licenses that had an expiration date between March 1, 2020, and September 1, 2020, by six months from the expiration date, unless those requirements could be completed online. The timeframe for the deferrals lapsed on March 1, 2021.

  • Executive Order 2020-28, which addressed critical demand for nursing home and long-term care facility staff, allowing caregiver trainees to utilize on-the-job training to meet a certification program. This policy was codified through legislation in 2020.

  • Executive Order 2020-58, which ensured cost-sharing requirements, such as co-pays and co-insurance, for the COVID-19 vaccine. This policy was codified by congress through the CARES Act.

  • Executive Order 2020-20, which allowed pharmacists to dispense emergency refills of maintenance medications for up to 180 days, minimizing unnecessary trips to the doctor. With legislation expanding the availability of telemedicine, obtaining refills is now more accessible.

  • Executive Order 2021-14, which is the Enhanced Surveillance Advisory Order stays in place for now. Those continue to require hospitals, testing laboratories and other health facilities to provide detailed information and data related to COVID-19. The public health surveillance requirements (case reporting) continues to be needed because the ADHS has not conducted a rulemaking to make COVID-19 reportable. Also, ADHS still hasn’t placed COVID community control measures in rule yet, making it still unclear what county health department control measures should be.

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