Will Humble Disease Control, Public Health Law, Wills Blog

Secretary Becerra Extends Federal Public Health Emergency to mid-July

Here’s What it Does & Why It’s Important

U.S. Department of Health & Human Services Secretary Becerra just extended the federal public health emergency for another 90 days [See renewal declaration here], bringing the new expiration date to mid-July. It’s likely that the federal public health emergency will end at that time.

Many policy changes are tied to the federal public health emergency like flexibilities to waive or modify certain requirements in a range of areas, including in the Medicare, Medicaid, and CHIP (KidsCare) programs, mandates for private health insurance, authorization of medical countermeasures, telehealth, providing liability immunity to providers who administer services, and authorizing the FDA to do emergency use authorizations, among other things:

The public health emergency was initially declared by HHS Secretary Azar in late January 2020 under Section 319 of the Public Health Service Act. A PHE lasts for 90 days and must be renewed to continue. It has been renewed several times, most recently today. The new expiration date is July 16, 2022.

The Kaiser Family Foundation out together this good summary of what changes are coming when the federal declaration ends: What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access

Here are the sub-categories:

The thing I’m most immediately concerned about is that once the federal emergency ends on July 16, AHCCCS will begin its redetermination processes (redetermination has been suspended during the federal PH emergency since AHCCCS accepted the 6.2% enhancement in the federal share of Medicaid in AZ). AHCCCS estimates that as many as 500,000 members have moved in the last 2 years and didn’t update their address.

Once the federal emergency ends, they’ll send out notices to members and those that don’t reply in 10 days will get kicked off (at least I think it’s 10 days). If the letter goes to their old address they’ll obviously get kicked off.

There needs to be a full-court-press by AHCCCS, their contracted Managed Care Organizations, nonprofits and others to get the word out between now and July to make sure folks that have moved in the last year update their addresses at www.healthearizonaplus.gov or 1-855-432-7587.

Will Humble Public Health Law, Wills Blog

50 State Survey Summary of Bills Limiting Public Health Emergency Authority

50 State Survey Summary of Bills Limiting Public Health Emergency Authority

Arizona isn’t the only state where bills have been proposed this legislative session that restrict public health emergency authority, prohibiting things like compulsory masking, vaccine policy, and restricting policy making by political jurisdictions, schools and the like.

The Network for Public Health Law produced a compendium this week that tracks the laws that have been introduced restricting executive authority and has followed them through the process – documenting where the bills are in the process.

In their report, you can find a table that details COVID-19-related legislation and broader proposed limitations on public health authority pending in all 50 states (including Arizona).

You can see that the list of harmful bills that were introduced in Arizona were pretty long, but only a couple of bills have survived this far. One has been signed (stopping political jurisdictions from closing businesses during a PH emergency).

A couple more are just waiting for final floor votes and a couple of other bad ones just need Rules Committee hearings and then a final floor vote.

  • SB1009 requires that as of Jan. 2021, the governor may issue an emergency proclamation for a public health emergency for no more than 30 days and may extend the order for additional 30-day periods, not to exceed 120 days, without passage of a concurrent legislative resolution. Just Waiting for House Floor Vote.
  • HB2107 prohibits the mayor of an incorporated city or town, and the chairman of the board of supervisors (BOS) for the unincorporated areas of the county, from ordering the closure of businesses during a declared emergency. Passed and Signed
  • HB2086 provides that COVID-19 vaccine and the HPV vaccine are not required for school attendance. Just Waiting for Senate Floor Vote
  • HB2471 requires that 14 days after a state of emergency is proclaimed, the governor must call for a special legislative session relating to the state of emergency. Passed House. Still needs Senate Rules Committee.
  • SB1567 prohibits state government and business affiliations from requiring any person to receive a COVID-19 vaccination or carry a COVID-19 immunity passport, discriminate against any person based on vaccination status, or enter into a contract, loan, or grant with an organization requiring COVID-19 vaccination. Provides an exemption for health care facilities. Passed Senate, still needs House Rules Committee/House Floor.
Will Humble State Legislature, Wills Blog

Weekly Legislative Session Roundup

Very little happened at the state capitol last week. The Senate met each day, but the agendas were super short. The House only gaveled in for two of their four workdays.  Word in the street is that this trend will continue while leadership continues to negotiate on the budget (even though there are many bills – good and bad- that remain in limbo).

The Rules Committees in both the House and Senate are both super-anemic, creating a bottleneck for many bills both good and bad. The 3rd Read (floor vote) calendars are so far basically blank for the week. That could change- but so far this looks like it’s going to be a snoozer. 

Rather than write up anything new this week, I’ll just refer you back to last week’s update- which still applies because of the lack of action last week. See last week’s summary: Legislative Action Roundup – AZ Public Health Association

Here’s this week’s tracker spreadsheet courtesy of our intern cohort (Danielle King, Garrett Tomlin, and Priscila Ruedas)
Will Humble Opioids, Wills Blog

Final Chance to Comment on CDC Clinical Guidance for Prescribing Opioids

CDC’s National Center for Injury Prevention and Control (NCIPC) is in the process of updating the 2016 CDC Guideline for Prescribing Opioids for Chronic Pain. CDC draft Clinical Practice Guideline for Prescribing Opioids (update to the 2016 Guideline for Prescribing Opioids for Chronic Pain) has posted in the Federal Register. Today is the last day in the 60-day public comment period. The new proposed guidelines continue to urge prescribers to avoid using opioids for pain when possible and to be very cautious when necessary – but the new guidance eliminates the limits on dose and duration that was in the 2016 guidance (and in the Arizona Opioid Epidemic Act).

The proposed guidelines steer doctors away from using opioids as a first-line therapy for many common acute pain conditions — among them, lower back pain, musculoskeletal injuries and pain related to minor surgeries. It also discourages using opioids for chronic pain but acknowledges that opioid therapy can play a role in treatment, in particular if other approaches have been tried.

Visit the Federal Register to provide your comments on the draft Guideline update 

Overall, you can view the new proposed guidance as an effort to relax some of the more restrictive and prescriptive aspects of the 2016 guidance.

The CDC’s webpage details the process of updating the Guideline. 

Encourage people you know who have direct experience with the role of opioids in pain care and the importance of the patient-clinician relationship to visit the Federal Register, review the draft update to the Guideline, and add their perspectives to the Federal Register Notice.

Will Humble Uncategorized

Updated 4/14/22: Journalists Expose Foolish ADHS Decision to Exclude Hospital COVID Metrics Collected by AHCCCS From Dashboard: Reporting Get’s Policy Changed

Last Friday ADHS Interim Director Herrington announced in a blog post that, since the Governor ended the public health emergency, ADHS would no longer be updating their COVID hospital utilization dashboard. Katherine Davis Young and Stephanie Innes saw that post and began asking questions of the department.

Among their questions was something like…

“We understand that the executive order requiring hospital metrics has now been rescinded, but why aren’t you going to use the hospital utilization metrics being collected by AHCCCS to update the ADHS dashboard? After all, AHCCCS is giving hospitals a 0.25% increase in a Differential Adjusted Payment to incentivize the reporting?”

The response from ADHS spokesperson Steve Elliott was that the AHCCCS data wasn’t in the right format, so they aren’t going to use it. Period.

Katherine Davis Young did a piece for KJZZ and tweeted it out, disclosing that ADHS was blowing off the AHCCCS collected COVID hospital data. That gave stakeholders and AzPHA an opportunity to amplify Interim Director Herrington’s directive. It wasn’t long before folks in the Governor’s Office learned about his puzzling and astonishingly foolish decision.

Alas, we racked up yet another victory for the 1st amendment, diligent reporting, and public health advocate amplification. By the end of the day on Friday, Interim Director Herrington had changed his mind, saying that ADHS would indeed use the COVID hospital utilization data AHCCCS is paying for to update their dashboard… albeit he still wouldn’t commit to a date they would be doing so.

Kudos to Katherine Davis Young, Stephanie Innes and the public health world for exposing this terrible decision and getting corrective action. At least we will still be able to detect increases in COVID hospitalizations now (if/when the ADHS follows through).

April 12, 2022 Update: As it turns out, AHCCCS is not asking hospitals to turn in any COVID-specific data as part of their 0.25% DAP. As a result, ADHS is not receiving any COVID-specific data- meaning that the ADHS hospital metric dashboard is now essentially worthless. The federal government still requires hospitals to submit some COVID specific data…  and the best available data on hospital COVID metrics are located on the CDC website at: CDC COVID Data Tracker: Hospital Admissions. Use the AZ dropdown box.

Will Humble Air Quality, Climate Change, Wills Blog

Phoenix ranks high in health benefits from future shift to electric vehicles, clean energy

The Road to Clean Air report released Wednesday by the American Lung Association lists Phoenix and Mesa among the 25 cities that would benefit most from a nationwide shift to zero-emission power plants and vehicles.

“Because of our climate crisis, we need to make these bold investments in transportation electrification to protect the health of Arizonans,” said Melissa Ramos, clean air advocacy manager for the American Lung Association.

The modeling study estimates that a widespread transition to vehicles powered by non-combustible electricity generation sources, such as wind power and solar energy, would avoid more than 1,300 deaths and bring more than $15 billion in public health benefits to Arizona.

That includes about 38,000 fewer asthma attacks and 182,000 fewer sick days.

The projections assume emission-free power plants and passenger vehicles by 2035, with trucks and buses to follow by 2040.

“Phoenix is ranked fifth for unhealthy ozone days, thirteenth for unhealthy particle pollution days and eighth for annual particle pollution levels,” said Ramos. “Since Phoenix is among one of the most polluted cities in the U.S., it also has so much to gain from a rapid shift toward zero-emission transportation powered by non-combustion electricity.”

Research links worsening air quality from transportation and electricity generation to a variety of negative health impacts, including childhood asthma attacks, impaired lung function and development, lung cancer, heart attack, stroke and premature death, particularly in lower-income communities and communities of color.

Will Humble Vaccination, Wills Blog

FDA & CDC Approve and Recommend a 2nd Booster for People 50+ & Immunocompromised Kids Over 12 (but they didn’t support their decisions with evidence)

The FDA approved a second booster dose last week (both Pfizer-BioNTech and Moderna). The CDC followed suit the next day by recommending the vaccine for 50+ folks (the 2nd booster could have always been administered off-label).

The second booster was also authorized (by FDA) for immunocompromised children older than 12 (Pfizer-BioNTech). Moderna was authorized for immunocompromised adults over 18.

Editorial Note: The FDA did not post or otherwise publicly disclose the data they used to make these changes (if there were data). Furthermore, the Advisory Committee for Immunization Practices didn’t meet or vote on the CDC recommendations, nor were any data posted by CDC that support these decisions. Additionally, CDC didn’t publish an MMWR with any data or justification.

This is a bad way to do business. These decisions should have been data-driven and transparent, but they were not. Unforced errors by both CDC & FDA.

Will Humble State Legislature, Wills Blog

Legislative Action Roundup

There was far less action on the floor of the House and Senate than I expected last week. So, there isn’t much more to report this week. I’m sure you’ve heard that the Governor signed SB1164– abortion; gestational age; limit.

By the time the bill takes effect 90 days after the end of the legislative session, the US Supreme Court will have likely upheld Mississippi’s law, which is almost identical. Once in effect later this year, any physician who performs an abortion past 15 weeks’ gestation (that isn’t a medical emergency) can be charged with and convicted of a Class 6 felony. Even if the doctor isn’t convicted, the bill states that her or his license to practice medicine “shall be suspended or revoked”.

Other high-profile bills that the Governor signed last week are SB1138 and SB1165. SB1138 will place a ban on gender-related surgery for people under 18. The current standard of practice is to withhold gender related surgery until 18, but this bill would lock that into state law. SB1165 would ban transgender girls from participating on women’s athletic teams at public or private schools and at the collegiate level.

Check below for all the bills in the floor hopper.  Several of the bills we’ve signed up for or against died last week (those are identified below too). 

Here’s Our Bill Summary Tracker Spreadsheet
Bill Overview: Select Bills AzPHA is Supporting

Maternal/Child Health

SB1272 AHCCCS; postpartum care; eligibility; Passed Senate 26-2; Passed House Health & Appropriations; Ready for Floor Vote

Access to Care

HB2144 health insurance coverage; biomarker testing Passed House 59-0; Passed Senate Finance; Ready for Floor

Special Needs

HB2157 supplemental appropriations; community-based services SIGNED

HB2113 developmental disabilities; Down syndrome SIGNED

HB2111 appropriation; healthy families program – Passed house 40-17; Waiting for Senate Rules Committee

Social Determinants

HB2060 supplemental nutrition assistance program; Passed House 44-15; Passed Senate Health 7-1. Ready for Senate Floor

HB2484 forcible entry; detainer; filing fee Passed House 59-0; SIGNED

Environmental

HB2255 fireworks use, limitations, prohibition Passed House. Ready for Senate Floor

State Hospital/Behavioral Health

SB1716 state hospital; governing board; governance Passed Senate 27-0; Passed House Health 9-0.

SB1444 state hospital; administration; oversight Passed Senate; Passed House Health; Rules then Floor

SB1641 health care institutions; civil penalties Passed Senate 28-0. Passed House Health, Still needs Appropriations

SB1162 opioid prescriptions; intractable pain; exceptions Passed Senate 27-0. Passed House & Sent Back to Senate

SB1210 mentally ill; transportation; evaluation; treatment; Passed Senate. Passed House Health 8-0. Rules then Floor.

Bill Overview: Select Bills AzPHA Is Opposing

Vaccines/Disease Control

HB2086 ADHS; school immunizations; exclusions Passed House 31-28; Passed Senate Health 5-3. Rules then Floor

SB1009 state of emergency; executive powers Passed Senate 16-13; Ready for House Floor Vote

HB2453 mask requirement; prohibition Passed House 31-28. Ready for Senate Floor Vote

HB2616 mask mandates; minors; parental consent Passed House 31-28. Ready for Senate Floor Vote 

HB2161 parental rights; schools; educational records Passed House 31-28. Ready for Senate Floor Vote

HB2498 COVID-19; vaccination requirements; prohibition. Passed House. Passed Senate Government, Ready for Floor Vote

Social Determinants

SB1164 – abortion; gestational age; limit SIGNED

Government

SB1175– noncustodial federal monies; appropriation Passed Senate 16-13; Ready for House Floor 

Here’s Our Bill Summary Tracker Spreadsheet
Will Humble Disease Control, Public Health Law, Wills Blog

Ducey Finally Ends the Public Health Emergency (And With It his Harmful Micromanagement of Political Subdivisions & Others)

Governor Ducey declared an end to the COVID-19 public health emergency in Arizona last Wednesday.

It might surprise you to know that I think it’s a good thing he ended the public health emergency. Why? Because for the last 14 months he’s been using that public health emergency authority to harm rather than assist with the COVID-19 response.

Remember last spring when he used his PH emergency authority to stop universities and community colleges from implementing sensible mitigation measures. Remember last summer when he misused his authority to stop Tucson from requiring staff to get vaccinated? Remember the micromanagement of K-12 to discourage mask policies? The list is endless.

The one thing in the last year that he’s used his authority for that was productive was an Executive Order allowing temporary health professional licenses to expire on January 1, 2023 (giving temporarily licensed nurses and other health professionals time to apply for and receive a permanent license). Last week he signed S.B. 1309 which put that EO into law.

The only other useful thing he was doing with his emergency authority was to require hospitals to report certain occupancy metrics. That requirement ended with the emergency last Wednesday, but AHCCCS has our back by offering a 0.25% differential adjustment payment for hospitals that continue to report capacity data elements. Doesn’t sound like a lot but it’s enough of an incentive for them to keep reporting weekly metrics.

The end of the state public health emergency also marks the end of all other state regulatory waivers. However federal waivers remain in place until such time as the federal public health emergency ends (or HHS terminates the waivers).

The ADHS Communicable Disease Rules that we established more than a decade ago already include a requirement to report cases of ‘novel coronavirus’ which includes the SARS CoV2 virus.

The long and short of it is that I’m glad the public health emergency declaration is ended because with it ends the authority that Governor Ducey has been using to harm the response.

Note: I don’t often agree with The Arizona Republic columnist Rob Robb…  but I’ve been 100% on the same page as him on the matter of Ducey misusing his authority. See this column from last Summer: Gov. Doug Ducey is misusing his emergency power. Time to end it.

Will Humble Disease Control, Public Health Law, Wills Blog

Brnovich Joins 21 Other AG’s Challenging CDC’s Transportation Mask Requirement

Is that a good thing? Yeah, probably. Here’s why.

Earlier this week Attorney General Brnovich joined 20 other states in filing a lawsuit in federal court challenging the CDC’s 2021 emergency regulation requiring people over the age of two to wear masks on public transportation, airplanes, trains, and transport hubs like airports and train stations. [See the CDC Rules: 86 FR 8025 – Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs 86 Fed. Reg. 8,025.]

The crux of their argument is that they think CDC exceeded their statutory authority under the Public Health Service Act [42 U.S.C. § 264(a)]. They believe that law doesn’t authorize CDC to establish their emergency rule requiring masks in those environments. The suit also argues that CDC didn’t use proper administrative procedures when they established the rule (failing to consider lesser alternatives and not following the APA’s notice and comment requirements).

So, is the lawsuit a good thing or a bad thing?

In the long run, it’s probably a good thing. Why? Because we need to know what the courts think about CDC’s existing emergency authority so congress can fix it (if necessary) before the next public health emergency comes. We also need to know what the courts think about the process that CDC used to administratively establish the rule, so congress can fix that before the next pandemic too (if needed).

Brnovich and the other 21 states filed the suit in the US District Court – Middle District of Florida- Tampa Division. Under normal federal rules of civil procedure, defendants typically have 21 days to respond to a complaint, which sets off an additional period of scheduling, motions, discovery, and the like. Judges’ schedules are an additional factor. Given this normal course, it seems unlikely that any action will be taken before May.

Once adjudicated, we’ll get more clear information from the courts about the extent of the CDC’s authority to quickly establish rules during public health emergencies and whether there is latitude for the agency to take some shortcuts while establishing regulations during public health emergencies.

I’m certain it’s not Attorney General Brnovich’s intent to do Public Health a solid, but I think that’s exactly what he’s done.

Note: According to Jennifer L. Piatt, JD, Deputy Director of the Network – Western Region Office,“…the US Supreme Court has already started to give us a sense of how broadly it views the CDC’s authority to act in times of crisis. In Alabama Association of Realtors v. HHS, the Supreme Court indicated that CDC did not have the authority to issue a nationwide eviction moratorium under the Public Health Service Act, 42 U.S.C. § 264(a). This is the same section at issue in this new case on transportation masking requirements. Alabama Realtors has thus already demonstrated that the Court is willing to limit CDC’s authority under this section of the Public Health Service Act (PHSA), and it’s possible that the Court’s language in that decision may illuminate or drive some of the lower courts’ interpretations in this case.

A transportation masking order is different from an eviction moratorium, so we can’t be certain how this case will come out. With that said, this challenge has the potential to further cabin the CDC’s ability to respond in emergency circumstances based on judicial interpretations of the PHSA.”

If so, the court would be providing valuable information with which Congress could and should use to amend the Public Health Service Act before the next public health emergency.

Resource Note: When you have questions about public health law that come up in the course of your work, a terrific resource is the Network for Public Health Law. They are a terrific, free, resource that can help you think through your legal questions by researching laws and case law to help you make decisions. It’s not legal advice, but a terrific resource. Here’s a place to start when you have questions: How We Can Help – Network for Public Health Law.

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