Biden Administration says that all hospitals must provide abortion care in emergencies

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This week, federal health officials sent hospitals clarification that the federal Emergency Medical Treatment and Labor Act (EMTALA) protects the provision of abortion care during medical emergencies, regardless of state laws. The guidance also offers EMTALA as a possible legal defense for providers against state enforcement of antiabortion laws. Texas Attorney General Ken Paxton has already sued the Department of Health and Human Services (HHS) to set aside the guidance, claiming the agency is exceeding its authority.   

The Gist: This latest federal action follows President Biden’s recent executive order directing federal agencies to protect access to reproductive care, and HHS’s warning that pharmacists refusing to dispense medications used to induce abortions could be violating federal civil rights laws. The Federal Trade Commission and Justice Department have also announced that they will enforce data privacy rules and pursue legal action against states that look to restrict patients from traveling to obtain abortion care. 

These quick federal actions, while limited, are an attempt provide clarity for providers trying to deliver lifesaving care in a timely manner, without running afoul of state laws. Some Democrats, however, argue that they don’t go far enough, and are pushing for the President to declare a public health emergency on abortion, though it’s not clear that would provide much patient benefit.

Meanwhile, reports from Texas and other states with restrictive abortion laws reveal physicians are already delaying care for ectopic pregnancies and other life-threatening conditions, setting up all-but-certain legal action when patients experience adverse outcomes.

Threats of prison time put gynecologists in impossible circumstances

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In states with laws that criminalize performing abortions, physicians are facing the dilemma of having to wait until a pregnant patient’s death is imminent to perform a potentially lifesaving procedure. Reporting from STAT News reveals how these laws are disrupting care. A physician in Missouri, which outlaws all abortions unless the life of the mother is in danger, described having to spend hours getting clearance from a hospital ethics team to perform the procedure on a patient with an ectopic pregnancy.

Even non-pregnancy care is being impacted. An arthritis patient taking methotrexate, which can also be used for abortion, was told by her doctor that all prescriptions for the drug are on pause due to legal uncertainty.

The Gist: Doctors and hospital legal counsel are dealing with a new legal landscape, marked by restrictive, ill-defined anti-abortion laws that fail to clarify what constitutes a medical emergency.

Physicians are forced to interpret unclear laws, often written without help from medical professionals, and many feel compelled to wait until patients are in dangerous, life-threatening situations to provide care—the opposite of what was instilled in them during years of training.   

Supreme Court overturns Roe v. Wade, eliminating the constitutional right to an abortion

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 The 6-3 decision in Dobbs v. Jackson Women’s Health Organization, challenging a Mississippi law banning most abortions after 15 weeks, overturns the nearly 50-year precedent providing a constitutional right to abortion. The opinion was little changed from a draft that was leaked last month, returning most decision making on abortion to states. At least 13 states have so called ‘trigger laws’ in place that will almost immediately make abortion illegal, and another 13 states are likely to pass similar laws.

The GistIn over half of states, existing or new laws will likely prevent pregnant people from accessing critical and evidence-based reproductive healthcare services, including medically safe abortion, miscarriage care, pregnancy termination for severe fetal anomalies, and endangerment of the childbearing parent’s life.

Patients in Texas, which passed one of the strictest abortion laws last year, have already been facing challenges obtaining prescriptions for medications for miscarriage and abortion care. Many state laws which criminalize providing the procedure put physicians and other medical providers in legal jeopardy.

And as legal experts point out, most malpractice insurance doesn’t protect physicians from damages incurred from criminal charges. 

Moreover, most laws have been written by legislators with little or no medical expertise, leading to lack of clarity about which potentially life-threatening situations, in what circumstances, merit pregnancy termination—forcing physicians to delay lifesaving obstetric care. (Read this NEJM piece to understand what this looks like for doctors and patients in Texas today.) Regardless, today’s decision will lead to increased mortality for pregnant people and those unable to seek safe abortion care. 

Businesses face major benefits questions amid Roe uncertainty

Corporate America is facing a flurry of questions about how it provides health benefits in the wake of a leaked U.S. Supreme Court draft that indicates the federal right to abortion could be overturned.

Why it matters: Businesses hoping to use reproductive health benefits as part of efforts to recruit and retain employees would have to be careful not to run afoul of laws should states be allowed to ban abortions.

  • The balancing act over the next several months could get messy, experts warn.

What they’re saying: “It’s a serious issue for employers,” said Candice Sherman, the CEO of the Northeast Business Group on Health. The group represents roughly 80 large companies such as American Express, Colgate, Moderna and Pfizer.

  • Limits on abortion coverage have the potential to impact the physical and mental health of the workforce and could come as many employers are addressing equity and inclusion for women, people of color and LGBTQ employees, Sherman said.
  • That is often communicated by companies through benefit design.

State of play: Some large companies like Amazon, Apple and Lyft have already announced plans to provide workarounds in those states with abortion restrictions.

  • But many others are still on the sidelines as they tease out employees’ priorities on abortion-related benefits, as well as the potential costs and legal risks.
  • Eleven states restrict insurance coverage of abortion in all private insurance plans written in the state, including those offered through Affordable Care Act markets, according to the Guttmacher Institute. Six other states require abortion coverage in private health insurance plans.

Zoom in: One of the most immediate questions is what kind of employer-sponsored abortion coverage — as well as enhanced benefits like travel stipends — might create legal liabilities for companies in states that ban abortion.

  • “There’s a question as to whether providing transportation benefits could be construed, or at least alleged by the states in enforcement, as aiding and abetting,” said Garrett Hohimer, director of policy and advocacy for the Business Group on Health. That group counts corporations like The Walt Disney Co., Walmart and General Motors among its members.
  • Companies like Citigroup that pay for out-of-state abortions have already been threatened with the loss of business.

Yes, but: In the case of a challenge, companies would have a strong argument that federal protections for providing abortion care benefits preempt state laws, Emily Dickens, the head of government affairs for the Society for Human Resource Management, told Axios.

  • Dickens pointed specifically to the Pregnancy Discrimination Act which specifically says an employer is permitted to provide health insurance coverage for abortion, as well as protections under ERISA law.

But, but, but: It’s not a sure thing. For instance: “ERISA is not a get out of jail free card,” Hohimer warned, saying there is some question about how the law would be interpreted.

  • While experts largely believe the Affordable Care Act would provide protections for birth control coverage, it’s unclear how fertility benefits such as egg freezing, surrogacy or in vitro fertilization might be affected, Sherman said.

What to watch: Many large companies already offer health benefits allowing workers to travel to Centers of Excellence for procedures like joint replacements or cancer care.

  • Those kinds of benefits will likely gain more attention because of the attention surrounding reproductive health, Hohimer said.
  • Sherman said this may also raise questions about whether there’s flexibility in the tax code to expand the scope of Flexible Spending Accounts or Health Savings Accounts to cover travel for any health care issues.

The bottom line: “Assuming this discussion comes down the way we think it may, organizations are going to have to work very hard,” Sherman said.

Providers ponder a post-Roe future

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If the leaked Supreme Court draft opinion overturning Roe v. Wade—which in 1973 established an individual’s constitutional right to an abortion—is finalized, as many as 26 states are either certain or likely to ban abortion. The resulting patchwork of abortion laws across the country could create confusion for providers and hospitals on multiple fronts, including cases related to the Federal Emergency Medical Treatment and Labor Act (EMTALA), as well as for health systems that operate in multiple states. Medical training on the procedure could become much more limited, as about half of the nation’s obstetrics and gynecology residencies are in states likely to ban abortion.

Recognizing the precarious position that abortion bans will put some providers in, the American Medical Association released a statement on Thursday saying that it is “deeply concerned” with the draft opinion, and that it “would lead to government interference in the patient-physician relationship, dangerous intrusion into the practice of medicine, and potentially criminalizing care.”  

The Gist: Abortion is just one of a raft of issues where the provision of health services increasingly intersects with charged politics in this country. If Roe is overturned, medication abortion—the use of abortion pills—which already accounts for more than half of all abortions, will increase, although multiple states are already seeking to limit access. 

Restricting access to safe abortions will also further exacerbate health disparities, driving up the already distressingly high US maternal mortality rate, especially among Black women. And overturning Roe would have implications far beyond access to abortion, especially for patients experiencing miscarriages, ectopic pregnancies, or other life-threatening medical conditions related to pregnancy.

Becerra squeaks through confirmation vote to become HHS secretary

Becerra squeaks through confirmation vote to become HHS secretary - The  Washington Post

Xavier Becerra narrowly won confirmation Thursday to lead the Department of Health and Human Services, the agency pivotal to President Biden’s urgent goal of defeating the coronavirus pandemic and expanding access to health care.

Becerra, a congressman from Los Angeles for two dozen years and then California attorney general, squeaked by on a vote of 50 to 49, the closest margin for any of the Biden cabinet members the Senate has confirmed so far.

He becomes the first Latino secretary of HHS, the largest federal department in terms of spending. The department includes agencies at the core of the federal response to the pandemic that has infected more than 29.5 million people in the United States and killed more than 535,000. They include the National Institutes of Health, the Centers for Disease Control and Prevention, the vaccine-approving Food and Drug Administration, and the Centers for Medicare and Medicaid Services, which oversees the country’s vast public insurance programs.

Sen. Ron Wyden (D-Ore.), chairman of the Senate Finance Committee, which considered the nomination, said that “after four years of going in reverse,” Becerra will make it “possible to go to drive and actually make progress for the American people, progress in terms of lowering the cost of health care.”

Republican Sen. John Barrasso (Wyo.), countered that Becerra is “an aggressive culture warrior from the radical left,” who is “out of touch with the views of the American people.” Barrasso noted that, as state attorney general, Becerra sued the Trump administration more than 150 times over immigration, environmental and health policies.

“In this time of crisis, our secretary of Health and Human Services may be the single most important member of the president’s cabinet,” Barrasso said, contending that “the president has chosen a nominee, no public health experience, extremely partisan record.”

Sen. Susan Collins (R-Maine) was the only member of the GOP to vote for Becerra’s confirmation along with a solid wall of Senate Democrats.

During his confirmation hearing last month before the Senate Finance Committee, Becerra said, “The mission of HHS — to enhance the health and well-being of all Americans — is core to who I am.”

In keeping with Biden’s emphasis on portraying his administration’s top rung as diverse and having working-class roots like his own, Becerra told the senators his immigrant parents had insurance through his father’s laborers union, making his family more fortunate when he was a boy than many of their neighbors.

As a longtime member of the House Ways and Means Committee, Becerra testified, he worked on several major pieces of health-care legislation, including the Children’s Health Insurance Program created in the late 1990s and changes to the way Medicare is run and financed, as well as the Affordable Care Act.

He did not mention that he was a longtime advocate of a single-payer health-care system, akin to the Medicare-for-all proposals backed by several Democratic candidates in last year’s presidential election, but rejected by Biden. Becerra has renounced his previous support since his nomination, echoing the president’s view that affordable insurance coverage should be widened by building upon the ACA.

Becerra, 63, became a lightning rod for conservatives immediately after Biden announced his selection in early December.

Senate Republicans targeted his defense of abortion rights. They contended he is unqualified because he is not a physician, though few HHS secretaries have had medical training. And they have denounced his previous advocacy of a larger government role in health insurance.

An undercurrent running through opposition to his nomination was Becerra’s leadership in recent years of a coalition of Democratic attorneys general fighting to preserve the ACA. Republicans, including President Donald Trump, are seeking to overturn the 2010 law in a case now before the Supreme Court.

Sen. James Inhofe (R-Okla.) lambasted Becerra, saying he has “an appalling track record disrespecting the sanctity of life. . . . He has no shame when it comes to his pro-abortion beliefs.”

Inhofe also criticized Becerra’s support last year for California’s ban on indoor worship services as part of the state’s efforts to slow the cornavirus’s spread. And the senator criticized Becerra’s position that undocumented immigrants should be allowed public benefits, such as Medicaid.

Senate Majority Leader Charles E. Schumer (D-N.Y.) said Republicans’ arguments against Becerra “almost verge on the ridiculous.”

Schumer said Republicans challenging Becerra’s qualifications for the job had embraced the nomination of Alex Azar as Trump’s second HHS secretary, though he was a pharmaceutical executive who also was an attorney and had no medical training.

In addition to working to tame the pandemic, which Biden has identified as the government’s job number one for now, Becerra will face many major decisions at the helm of the sprawling department over whether to continue or reverse policies established by the Trump administration.

CMS has already announced it was rescinding a significant Medicaid policy of the Trump era that had allowed states to require some residents to hold a job or be preparing for work to qualify for the safety-net insurance program. HHS officials are reviewing other Trump-era Medicaid policies.

Another HHS agency, the Administration for Children and Families, oversees the nation’s policies regarding welfare and unaccompanied children coming across the country’s borders — a flashpoint during the Trump administration.

The CDC, the government’s public-health agency, has been working to regain its footing and scientific moorings after repeated intrusions into its advice to the public by the Trump White House. The agency has been involved in the largest mass vaccination campaign in U.S. history to immunize the public against the coronavirus. And it is developing guidance on aspects of American life — and ongoing public safety measures — as research findings evolve for the virus and vaccine’s effects.

The FDA is in the thick of decisions about coronavirus vaccines, developed in record time, as additional manufacturers, such as AstraZeneca, have devised them and tested their safety and effectiveness. The three vaccines being given to about 2 million Americans a day — by Pfizer-BioNTech, Moderna and Johnson & Johnson — are being allowed so far for emergency use and have not yet secured full FDA approval.

Becerra almost certainly will continue to face hostility from social conservatives after his swearing in, expected Friday.

Roger Severino, who led HHS’s Office for Civil Rights during the Trump administration and created a division to promote “conscience and religious freedom,” is building an “HHS Accountability Project” within the conservative Ethics and Public Policy Center.

While at HHS, Severino tangled directly with Becerra during his tenure as attorney general of the nation’s most populous state, twice citing him in violation of federal laws for upholding California statutes involving abortion rights.

Severino said this week he believes those on the right might find common ground with Biden health officials on disability rights. But on matters of abortion and deference to religion, Severino said, “We will be watching.”

California investigates Providence after physicians’ complaint of religious limits on care at Hoag

Hoag Memorial Hospital Presbyterian | Visit Newport Beach

Renton, Wash.-based Providence is being investigated by California’s attorney general, Xavier Becerra, over allegations that it inappropriately applied religious care restrictions at Hoag Memorial Hospital in Newport Beach, Calif., the Los Angeles Times reported March 3. 

Several women’s health specialists from Hoag submitted a confidential complaint to the attorney general’s office in October, prompting the investigation. The physicians claim Heritage Healthcare, Providence’s physician management division, refused to pay for contraceptive services for HMO patients at Hoag and delayed miscarriage treatment authorizations, among other allegations, according to the complaint referenced by the news outlet. 

The physicians also reported Heritage specifically referenced the Ethical and Religious Directives for Catholic Health Care Services, which are put forth by the United States Conference of Catholic Bishops, in at least one instance when it declined to pay for a patient’s intrauterine device insertion.   

Applying the directives would be in violation of conditions set by now-Vice President Kamala Harris, who approved an affiliation between Hoag and Irvine, Calif.-based St. Joseph Health, a Catholic healthcare system, when she was California’s attorney general in 2014. In 2016, St. Joseph merged with Providence, which required Providence to maintain the pre-merger conditions related to women’s health services at Hoag. The only service for which Hoag was subjected to a ban was “direct abortions,” according to the Los Angeles Times report. 

In a letter sent to the involved institutions March 2, Mr. Becerra requested Providence provide documents related to the issues by March 23. 

“This office is monitoring whether the Catholic Ethical and Religious Directives are or have been applied to any aspect of a service, procedure, or other activity associated with a medical billing code, with the exception of direct abortions, performed by Hoag obstetrician/gynecologists,” the letter reads. 

In an emailed statement to the Los Angeles Times, Providence said it “welcomes the Attorney General’s request for further information, and is confident that the review will demonstrate that Providence has always complied with all requirements under the merger conditions.”

In May, Hoag filed a lawsuit seeking to end its affiliation with Providence. 

To read the full Los Angeles Times report, click here. 

Taking executive action to bolster the Affordable Care Act

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Thursday was healthcare day at the Biden White House, the latest in a series of themed days during which the President has issued executive orders on topics ranging from COVID response to climate change to racial equity.

Facing a closely divided Congress, the new administration has focused so far on actions it can take unilaterally to advance its agenda, and as President Biden described it at a signing ceremony yesterday, his healthcare agenda is centered on “restoring the Affordable Care Act and restoring Medicaid to the way it was” prior to the Trump administration.

The new executive order reopens the HealthCare.gov insurance marketplace for a “special enrollment period”, lasting from mid-February to mid-May, allowing approximately 15M uninsured Americans in 36 states (including 3M who lost employer-based insurance due to COVID) to sign up for coverage, many subsidized by the federal government.

The order also instructs agencies to review many of the regulatory changes made by the Trump administration, including loosening restrictions on short-term insurance plans, and allowing states to use waivers to implement Medicaid work requirements. (Also included in Thursday’s action was a measure to immediately rescind the ban on taxpayer funding for abortion-related counseling by international nonprofits, the so-called “Mexico City rule”.)

Actually unwinding those Trump-era changes will take months (or possibly years) of regulatory work to accomplish, but Biden’s executive order puts that work in motion. Attention now turns to Congress, which the Biden team hopes will provide funding for increased subsidies for coverage on the Obamacare exchanges, along with allocating money for the administration’s aggressive COVID response plan. 

Yesterday’s executive order is best understood as the starting gun for the lengthy legislative and regulatory process that lies ahead, as the Biden administration tries to bolster the 2010 health reform law, and stamp its mark on American healthcare.

Biden to reopen ACA insurance marketplaces as pandemic has cost millions of Americans their coverage

President Biden is scheduled to take executive actions as early as Thursday to reopen federal marketplaces selling Affordable Care Act health plans and to lower recent barriers to joining Medicaid.

The orders will be Biden’s first steps since taking office to help Americans gain health insurance, a prominent campaign goal that has assumed escalating significance as the pandemic has dramatized the need for affordable health care — and deprived millions of Americans coverage as they have lost jobs in the economic fallout.

Under one order, HealthCare.gov, the online insurance marketplace for Americans who cannot get affordable coverage through their jobs, will swiftly reopen for at least a few months, according to several individuals inside and outside the administration familiar with the plans. Ordinarily, signing up for such coverage is tightly restricted outside a six-week period late each year.

Another part of Biden’s scheduled actions, the individuals said, is intended to reverse Trump-era changes to Medicaid that critics say damaged Americans’ access to the safety-net insurance. It is unclear whether Biden’s order will undo a Trump-era rule allowing states to impose work requirements, or simply direct federal health officials to review rules to make sure they expand coverage to the program that insures about 70 million low-income people in the United States.

The actions are part of a series of rapid executive orders the president is issuing in his initial days in office to demonstrate he intends to steer the machinery of government in a direction far different from that of his predecessor.

Biden has been saying for many months that helping people get insurance is a crucial federal responsibility. Yet until the actions planned for this week, he has not yet focused on this broader objective, shining a spotlight instead on trying to expand vaccinations and other federal responses to the pandemic.

The most ambitious parts of Biden’s campaign health-care platform would require Congress to provide consent and money. Those include creating a government insurance option alongside the ACA health plans sold by private insurers, and helping poor residents afford ACA coverage if they live in about a dozen states that have not expanded their Medicaid programs under the decade-old health law.

A White House spokesman declined to discuss the plans. Two HHS officials, speaking on the condition of anonymity about an event the White House has not announced, said Monday they were anticipating that the event would be held on Thursday.

According to a document obtained by The Washington Post, the president also intends to sign an order rescinding the so-called Mexico City rule, which compels nonprofits in other countries that receive federal family planning aid to promise not to perform or encourage abortions. Biden advisers last week previewed an end to this rule, which for decades has reappeared when Republicans occupied the White House and vanished under Democratic presidents.

The document also says Biden will disavow a multinational antiabortion declaration that the Trump administration signed three months ago.

The actions to expand insurance through the ACA and Medicaid come as the Supreme Court is considering two cases that could shape the outcome. One case is an effort to overturn rulings by lower federal courts, which have held that state rules, requiring some residents to work or prepare for jobs to qualify for Medicaid, are illegal. The other case involves an attempt to overturn the entire ACA.

According to the individuals inside and outside the administration, the order to reopen the federal insurance marketplaces will be framed in the context of the pandemic, essentially saying that anyone eligible for ACA coverage who has been harmed by the coronavirus will be allowed to sign up.

“This is absolutely in the covid age and the recession caused by covid,” said a health-care policy leader who has been in discussions with the administration. “There is financial displacement we need to address,” said this person, who spoke on the condition of anonymity to describe plans the White House has not announced.

The reopening of HealthCare.gov will be accompanied by an infusion of federal support to draw attention to the opportunity through advertising and other outreach efforts. This, too, reverses the Trump administration’s stance that supporting such outreach was wasteful. During its first two years, it slashed money for advertising and for community groups known as navigators that helped people enroll.

It is not clear whether restoring outreach will be part of Biden’s order or will be done more quietly within federal health-care agencies.

Federal rules already allow people to qualify for a special enrollment period to buy ACA health plans if their circumstances change in important ways, including losing a job. But such exceptions require people to seek permission individually, and many are unaware they can do so. Trump health officials also tightened the rules for qualifying for special enrollment.

In contrast, Biden is expected to open enrollment without anyone needing to seek permission, said Eliot Fishman, senior director of health policy for Families USA, a consumer health-advocacy group.

In the early days of the pandemic, the health insurance industry and congressional Democrats urged the Trump administration to reopen HealthCare.gov, the online federal ACA enrollment system on which three dozen states rely, to give more people the opportunity to sign up. At the end of March, Trump health officials decided against that.

During the most recent enrollment period, ending the middle of last month, nearly 8.3 million people signed up for health plans in the states using HealthCare.gov. The figure is about the same as the previous year, even though it includes two fewer states, which began operating their own marketplaces.

Leaders of groups helping with enrollment around the country said they were approached for help this last time by many people who had lost jobs or income because of the pandemic.

The order involving Medicaid is designed to alter course on experiments — known as “waivers” — that allow states to get federal permission to run their Medicaid programs in nontraditional ways. The work requirements, blocked so far by federal courts, are one of those experiments. Another was an announcement a year ago by Seema Verma, the Trump administration’s administrator of the Centers for Medicare and Medicaid Services, that states could apply for a fundamental change to the program, favored by conservatives, that would cap its funding, rather than operating as an entitlement program with federal money rising and falling with the number of people covered.

“You could think about it as announcing a war against the war on Medicaid,” said Katherine Hempstead, a senior policy adviser at the Robert Wood Johnson Foundation.

Dan Mendelson, founder of Avalere Health, a consulting firm, said Biden’s initial steps to broaden insurance match his campaign position that the United States does not need to switch to a system of single-payer insurance favored by more liberal Democrats.

The orders the president will sign “are going to do it through the existing programs,” Mendelson said.