The Wrong Path: Involuntary Treatment and the Opioid Crisis [from The Crime Report]

PHLW's Leo Beletsky and Elisabeth Ryan wrote about the increasing use of "Section 35" commitments in Massachusetts over at The Crime Report.  This law allows people with substance use disorders to be committed involuntarily to a secure facility for up to 90 days.  This is not the way to handle the opioid crisis.

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In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 inthis preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs publichealthlawwatch.org, on Twitter at @phlawwatch. They welcome comments from readers.

Law Enforcement, Drugs, and the 'Public Health' Approach [from The Crime Report]

Leo Beletsky, George Consortium founding member and Associate Professor of Law and Health Sciences at Northeastern University School of Law, wrote "Law Enforcement, Drugs, and the 'Public Health' Approach," for The Crime Report in April 2016.  Watch tomorrow for a new piece about the law in Massachusetts that allows individuals with substance use disorders to be involuntarily committed to secure facilities for up to three months.  

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In a recent high-profile speech at the National Prescription Drug Abuse and Heroin Summit in Atlanta, President Barack Obama reaffirmed his Administration’s approach to addiction as a “public health problem, and not just a criminal problem.”

In its various iterations, the adage that “we can’t arrest our way out” of raging opioid overdose and addiction crisis now figures prominently in policy discussions at all levels of government.

This is, a welcome—and overdue—development. Opioid overdose, including deaths resulting from prescription drugs like Oxycontin as well as their chemical cousin heroin, is now killing as many as 80 Americans daily.

The precipitous rise in opioid misuse and overdose has occurred despite extraordinary financial and human investments in drug law enforcement, mass incarceration for drug-related crimes, and other criminal justice approaches. But the emerging rhetoric that an alternative, “public health” approach is necessary to curb the opioid crisis has yielded few actionable specifics for those on its front lines—police and other law enforcement officers.

As often happens, innovation has come from the bottom up.

One of the most widespread initiatives has been to equip police officers with the overdose antidote naloxone. First introduced as a tool for law enforcement in New Mexico in 2004, it has recently expanded to police forces across the country, on the principle that police are often the first to arrive at the scene of an overdose. (This is especially true in rural locales and other settings like tribal areas, where emergency medical service response times can be substantially longer than those of law enforcement personnel.)

Nationwide, law enforcement officers outnumber medical first responders by approximately a factor of three. Several hundred police agencies have now trained and equipped officers to resuscitate overdose victims, reversing over one thousand overdose events.

Aside from this direct role in rescue operations, law enforcement can also contribute to overdose prevention through other activities. These could include disseminating information about signs and symptoms of overdose, advice on accessing naloxone, promoting Good Samaritan (criminal amnesty for overdose victims and witnesses who call for help) policies, and referral to available addiction treatment programs.

A growing number of departments are embracing these kinds of outreach activities. For instance, Boston PD has recently formed an Opioid Response Unit, which provides education and resources to overdose victims and their families.

Another effort introduced in Gloucester, MA offers amnesty to anyone who presents at the police station seeking help to access substance use treatment. The so-called “Gloucester Angel Initiative” program has helped to launch a national movement: More than two dozen police departments have adopted similar policies, and recently formed The Police Assisted Addiction and Recovery Initiative (PAARI).

Finally, Law Enforcement Assisted Diversion (LEAD) programs offer a structure for pre-arrest diversion available to drug users and other non-violent offenders. First introduced in Seattle, LEAD provides access to a broad range of housing, job training, and other social services.

These efforts can offer unique benefits. Police professionals often have close interaction with hard-to-reach groups that are most at risk for substance abuse and overdose. They also promote operational collaboration with public health agencies, resulting in improved information sharing and other synergies.

In addition to direct public health benefits, police overdose response, public education, and referral programs can help both police agencies and the communities they serve.

A closer understanding of drug misuse, its root causes, and evidence-based prevention and treatment tools can empower criminal justice professionals and institutions to achieve better results. At the same time, a shift in police attitudes towards addiction can increase trust and communication with drug users and their families, as well as in the community at large. At a time of serious challenges to community-police relations, reaffirming law enforcement’s dedication to public wellbeing can strengthen collaboration with civil society, promote officer job satisfaction, and ultimately help police in their core public safety mission.

But a number of challenges remain before the “public health approach” rhetoric can be translated into evidence-based policing practice.

With the exception of Seattle’s LEAD program, the impact of these public health-oriented policing initiatives remains unclear. As we struggle to contain this crisis, their rapid dissemination has proceeded organically in the near-absence of robust evaluation that could inform their design and tailoring.

For example, it is not clear whether training and equipping police to conduct overdose rescues is equally cost-effective in urban areas already well-served by professional medical response, as it is in rural or tribal locales where medical first responders arrive with substantial delay.

While these innovations have certainly expanded the traditional law enforcement toolkit, they have yet to challenge our reliance on the more traditional drug law enforcement. Conducting interrogations at the scene of an overdose, using prescription drug monitoring data for investigative purposes, and charging small-time dealers with homicide for supplying drugs to overdose victims may be perceived by law enforcement officers as deterrents to substance misuse.

Unfortunately, rather than promoting public health, these actions can inadvertently fuel the very problems they seek to address.

Treating every overdose event as a crime scene and charging overdose witnesses with drug-induced homicide can deter help-seeking during overdose emergencies. Using prescription drug data to identify and prosecute patients can undermine trust between people with substance use problems and their providers, pushing vulnerable patients away from getting help at a time when they need it most.

At the policy level, proposals for higher-intensity enforcement measures and a renewed focus on legislation extending drug trafficking sentences run at cross purposes to 911 Good Samaritan laws and other amnesty measures.

To be clear, we do need accurate and timely information about dangerous street drugs and prescription drug patterns. But the work of gathering and applying this information must be done with a clear vision for the life-saving goal in our effort to mount an effective response to the opioid crisis. We must acknowledge what we have learned by now from experience: that wielding the stick of criminal justice against street-level drug use does little to stem it, while also driving users underground, away from helping hands.

To make a real impact in curbing the current crisis, police agencies can benefit most from evidence-driven guidance to translate the “public health” approach heralded by policymakers and community leaders into street-level operations. This is the real opportunity before us for shared innovation and exchange.

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky

The Tanning Tax is a Public Health Success Story [from Health Affairs Blog]

Elisabeth Ryan wrote a piece about the "tanning tax," posted today on the Health Affairs Blog.

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Among the lesser known provisions in the now-rejected Republican House and Senate health care bills was a plan to eliminate an excise tax on tanning bed use. Tanning first became fashionable when Coco Chanel popularized the practice in the 1920s, making lounging outside in the sun a symbol of leisure, relaxation, and health. In the late 1970s, pioneering businesses began to offer ultraviolet (UV) radiation beds as a shortcut to fashionable tanned skin; by the 1990s, indoor UV tanning services were ubiquitous staples of the American beauty industry.

Despite its popularity, research has shown that exposure to UV radiation is the primary environmental cause of skin cancer and tanning beds are “the main source of deliberate exposure to artificial UV radiation.” Melanoma risk is particularly high among individuals who use tanning beds for the first time before age 35. The practice remains most common with female college students in the United States, with more than 50 percent reporting having used indoor tanning beds. Furthermore, despite their higher risk for melanoma, tanning companies aggressively target this demographic through the use of tailored marketing and advertising techniques.

Both the House and Senate health care bills would have repealed the Affordable Care Act’s so-called “tanning tax,” a 10 percent consumer-paid tax on non-medical, UV light indoor tanning services. When the tax was enacted in 2010, the non-partisan Congressional Joint Committee on Taxation estimated that it would bring in $2.7 billion in revenue over 10 years, and would offset some of the costs of the ACA overall. After four years, however, the tax had only brought in about $367 million, far less than the approximate $1 billion originally projected by that time. Some detractors then declared the tax a “failure” and blamed it for the loss of tens of thousands of jobs.

Yet these arguments discount the notion that the revenue was perhaps a secondary goal of the tax, behind its ability to deter people from engaging in the dangerous pursuit of indoor tanning. Per medical and public health groups, the creation of the tax was “a clear signal from the federal government that indoor tanning is a dangerous and potentially lethal activity that Americans should avoid.” The American Academy of Dermatology hailed it as helping to “reduce health costs by discouraging indoor tanning and thereby reducing the future costs of treating skin cancers.” From the public health perspective, a lower-than-expected revenue could be indicative of a significant victory.

Unsurprisingly, the indoor tanning industry criticized the tax from the beginning and now blames the tax for closing upwards of 10,000 salon businesses. Salons have the option of collecting the tax directly from consumers or absorbing the tax themselves; one survey of tanning salon owners in Illinois showed that about 80 percent chose the former, adding 10 percent to the consumer charge up front. The owners in that survey also reported that younger clients were more likely to “notice or care” about the price increase than older clients. Indeed, the Centers for Disease Control and Prevention reported that the number of high school students who reported having artificially tanned has decreased by more than half since the enactment of the ACA, from 15.6 percent in 2009 to 7.3 percent in 2015. While this may signify a downturn from a business perspective, deterring younger clients from beginning or continuing indoor tanning is a particularly desirable public health goal, as “young women under the age of 25 who engage in indoor tanning have been shown to be over 60 percent more likely to develop skin cancers such as basal or squamous cell carcinoma compared to those who have never engaged in the behavior.”

Given Congressional Republicans’ failure to repeal the Affordable Care Act, the elimination of the tanning tax appears to be off the table, at least for now. But the industry may well push for repeal again, possibly through the tax reform initiative Congress seems poised to address. Before Congress acts, however, it should recall that although the revenues raised by the tax may be relatively small, its true goal should be to reduce indoor tanning, especially among young people. Although far more research is needed to establish causation, the apparent reduction in rates of tanning that has occurred since the tax’s enactment suggests that the tax may well be doing its job.

Public Health and the Battle for Local Control

By Micah Berman

Last year -- over at Notice & Comment -- I blogged about two laws in Arizona that were taking seemed to be extreme forms of state-level preemption.  SB 1847 provided that if the state Attorney General concluded that a local government had passed a local law that was preempted by state law, the state could withhold all state funding from the locality.  Meanwhile, SB 1524 provided -- in incredibly broad and vague terms -- that a local government "may not take any action that materially increases the regulatory burdens on a business unless there is a threat to the health, safety and welfare of the public that has not been addressed by legislation or industry regulation within the proposed regulated field."

In a recent article in the Journal of Law, Medicine & Ethics, James Hodge and colleagues helpfully noted that these two laws are part of a broader trend they have labeled "Preemption Plus."  Hodge et al, explain:  

These schemes, including direct threats, fines, loss of funds, and deauthorizations, are gaining traction especially in public health arenas impacting big industries (e.g., tobacco, sugar sweetened beverages (SSBs)) or specific interests (e.g., rights to bear arms, religious freedoms). Collectively, they can essentially force states or localities to comply with higher level policies that are antithetical to the public’s health.

"Preemption plus" efforts noted by Hodge et al include a Florida law providing that local officials can be held personally liable for enforcing preempted gun control laws, and a proposed law in Virginia that would make "sanctuary cities" liable for crimes committed by undocumented immigrants.  Not included in their account was a law I recently heard about in Colorado, that withholds state cigarette tax funds from local governments that pass their own tobacco control regulations.

A July New York Times article notes many of these same efforts and dives deeper into the politics of preemption.  It notes:

In the last few years, Republican-controlled state legislatures have intensified the use of what are known as pre-emption laws, to block towns and cities from adopting measures favored by the left. The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.

It notes that the industry-based American Legislative Exchange Council (ALEC) has been promoting model state laws pushing some of these "preemption plus" tactics.

Interestingly, the NY Times article mentions the late 19th-Century practice of "ripper bills" that took authority away from local governments and passed it to the states.  According to Richard Briffault, these laws were often passed by rural-dominated states legislatures that wanted to take power away from the cities.  These "ripper bills" were also frequently the product of corruption, designed to benefit special interests.

Outrage at "ripper bills" led to the rise of the modern "home rule" movement, prompting state constitutional reforms and other efforts aimed at protecting local control.  Will the rise of "preemption plus" tactics lead to a similar backlash?   A new organization, the Campaign to Defend Local Control, has formed to bring attention to this issue and to push back against preemptive laws.  Those interested in promoting public health should wish them well and get involved.

FDA Reboots Tobacco Regulation with Harm Reduction

By the Public Health Advocacy Institute

On Friday, July 28, 2017, U.S. Food and Drug Administration (“FDA”) Commissioner Scott Gottlieb unveiled a revamped approach to tobacco product regulation in an announcement that surprised tobacco companies, investors, and the public health community in equal measure.  The goal, as articulated by Gottlieb, will be to regulate products so as to encourage migrating existing consumers from the most lethal combustible tobacco products (i.e., cigarettes) to non-combustible products lower on the continuum of risk. This approach is known as “harm reduction.”  The keystone will be to promulgate product standards so that cigarettes deliver insufficient nicotine to users to create or sustain addiction so that current nonsmokers never start and current smokers either quit or switch to non-combustible tobacco product that present a lower health risk.

This idea, while somewhat radical, is not new.  It had been a topic of discussion at the American Medical Association in the mid-1990s. Congress gave the FDA regulatory authority over tobacco in 2009 with the Family Smoking Prevention and Tobacco Control Act of 2009 (“Tobacco Control Act”).  It prohibited the agency from banning cigarettes or from banning nicotine.  The law does, however, explicitly allow for the potential reduction of nicotine in cigarettes to any level above zero.  The Public Health Advocacy Institute at Northeastern University School of Law produced a white paper on this approach in 2009 and proposed further research on the policy, but enthusiasm at the agency and the Executive Branch was lacking. Northeastern University Distinguished Professor, Richard A. Daynard, characterized non-addictive cigarettes in the New York Times as one of two important strategies that could end the cycle of addiction, disease, and death from tobacco products.

Research to date, including a $50 million research project funded by the National Institute on Drug Abuse, have produced preliminary results supporting the notion that very low nicotine cigarettes will lead to fewer cigarettes smoked and reduced toxic exposure to consumers.  So long as the nicotine levels are very low, compensatory smoking behaviors such as inhaling more deeply and smoking greater numbers of cigarettes do not seem to generally occur.  Some of these preliminary results were presented at Northeastern University School of Law in 2014 by a Principal Investigator of the grant, Dorothy Hatsukami, at PHAI’s conference, “Accelerating Tobacco Endgame Strategies in the United States.”

Another important tool that the FDA can use is to issue rules pertaining to the use of flavors in tobacco products.  While the Tobacco Control Act banned the use of characterizing flavors other than mint or menthol in cigarettes, concerns around the role of flavors in tobacco initiation have intensified in recent years.  “Little cigars,” which closely resemble cigarettes, are available in a range of child-friendly flavors.  E-cigarettes, likewise, have been criticized for offering fruit and candy flavors that would seem to appeal to children.

The question of exempting menthol flavored cigarettes from the flavor ban has been extremely controversial.  The Tobacco Control Act, it was thought, would not have garnered the votes needed to pass Congress were a menthol cigarette ban included.  Rather, the law specified that an expert committee must be convened by FDA to study the issue and issue a report on the health impact of menthol as a characterizing flavor in tobacco products. 

The resulting reports concluded that although menthol itself did not contribute to the toxicity of tobacco products, it tended to anesthetize the lungs in a way that facilitates smoking initiation by youth and frustrated cessation efforts.  Further, mentholated cigarettes have been historically marketed in a way that targets African Americans.  Almost 90% of African American smokers prefer menthol cigarettes, which is the most robust sector of the cigarette industry in the United States.  The company that produces the menthol market leader, Newport, was recently acquired by R.J. Reynolds which, in turn, was acquired by British American Tobacco this year. Reportedly, much of the value sought in these acquisitions derived from the Newport brand and the value of menthol cigarettes.

To date, the FDA has taken no action on mentholated tobacco products.  Chicago and San Francisco have passed ordinances restricting sales of menthol tobacco products.  San Francisco’s ordinance, which passed in July of 2017, is a total ban on all flavored tobacco product sales, including menthol.

The FDA announced that it will soon release three Preliminary Notice of Proposed Rulemakings seeking public and stakeholder comment on: 1) pros and cons of nicotine reduction strategies; 2) role of characterizing flavors, including menthol, in youth initiation and as a means to attract smokers to non-combustible tobacco products with less risk; and 3) potential health risks and use patterns of premium cigars. 

Non-combustible products such as electronic nicotine delivery systems including e-cigarettes and emerging “heat-not-burn” products would be likely alternatives to non-addictive cigarettes as would nicotine replacement therapies such as the gum and patch.  While this harm reduction approach has many supporters in the public health community, it would have the likely effect of perpetuating the commercialized recreational use of nicotine long into the future. 

Since the FDA began regulating tobacco products in 2009, almost every substantive regulatory effort has been met with litigation. This includes 2 lawsuits challenging a host of the law’s provisions; challenges to the legal legitimacy of the report FDA issued about menthol; a successful First Amendment challenge to regulations for graphic cigarette warning labels; and a dozen or so lawsuits challenging the agency’s regulation of e-cigarettes and cigars. 

This litany of litigation has, to this point, slowed or partially derailed the agency’s regulatory agenda and has drawn the criticism of many in the public health community. The FDA’s announcement marks a new and more aggressive regulatory vision for tobacco. Many questions remain. Is the scientific evidence base sufficient to justify this new approach?  What will be the effect of inevitable legal challenges from manufacturers and smokers? What are the health impact of non-combustible tobacco products to users and non-users?  How did the political environment in the Executive Branch change to allow for this new strategy to emerge and will it last?

With so many questions remaining and so many potential rules to enact, the timeline for the FDA to implement its new regulatory approach is uncertain.  Based on past experience, it would be reasonable to expect that it may be a decade or more until cigarettes are non-addictive.  Until then, there will be an effort by the tobacco industry to attract millions of consumers to new, less dangerous, but still addictive tobacco products. 

Mere Exposure to STDs May Not Be Enough to Prove Damages in Usher Case

By Elisabeth J. Ryan

Three past sexual partners of entertainer Usher are now suing him for allegedly exposing them to genital herpes without their knowledge or consent.  But only one of the plaintiffs, named as Jane Doe, has actually contracted herpes.  A person with a communicable disease who “willfully exposes” another person can be charged with a misdemeanor in California, but this civil suit is instead claiming that Usher “has a duty to warn and [that] he is liable for exposure even if the other person is negative for herpes.”  The plaintiffs did not specify how much money they are seeking, but their attorney Lisa Bloom said that her clients want the 38-year-old actor/singer to “either contact his sexual partners if the diagnosis is true or make a public statement to put people’s mind at ease.”  In 2012, Usher paid $1.1 million to settle another lawsuit alleging he gave a woman herpes.

George Consortium member Scott Burris – law professor at Temple University and director of the Center for Public Health Law Research –  told the Huffington Post that proving damages for a plaintiff who has not actually contracted herpes will be challenging.  Unlike the costs of medical care, “emotional distress” is much more difficult to quantify.  Further, as Burris told us here at Public Health Law Watch, “Everyone who is having sex out in the world…is now potentially exposed to a sexually transmitted disease.  Courts should not be awarding large denomination damages to people who are running what is essentially a normal risk of everyday life.”

Recent Study Shows Stronger Firearms Laws Associated with Fewer Fatal Shootings by Police

By Elisabeth J. Ryan

In 2015 and 2016, at least 2239 people were killed by police in the United States, overwhelmingly by gunshot.  But a recent study shows that fatal shootings by police are half as common in states with stricter firearms laws than in those with the most permissive laws.  Firearm Legislation and Fatal Police Shootings in the United States (by Aaron J. Kivisto, Bradley Ray, and Peter L. Phalen), published in the July 2017 issue of the American Journal of Public Health, primarily used data on police shootings collected by British newspaper The Guardian (as no official nationwide database exists) and a numerical system indicating the strength of a state’s firearms laws.  Taking into account laws such as those instituting stronger background checks, carrying firearms in public, and addressing gun trafficking, the study ranked states based on the strongest firearms laws (the highest being California with a score of 31) to the weakest (Arkansas, Idaho, and Kansas with 4).  “[E]ach 1-point increase in firearm legislative strength was associated with a 4% reduction in mortality.” States with the strongest firearm laws had rates of fatal police shootings more than 50% lower than in states with the weakest firearm legislation.  This association remained even after controlling for age, education, violent crime rate, and household gun ownership rate. 

Republicans Failed Because They Have No Idea What Kind of Health Care They Actually Want

by Robert I. Field

Not so long ago, much of the Republican Party stood united in a vision for health care. For 20 years, Party leaders from across the political spectrum coalesced around elements of a plan that would use the private market to broadly expand coverage.

The plan looked something like this. All Americans would be subject to a mandate to obtain health insurance for themselves and their families or pay a penalty along with their taxes. Most employers would be mandated to offer insurance to their workers. Those without access to employer-sponsored coverage would buy policies on an exchange directly from insurance companies, and insurers would be required to offer coverage regardless of an applicant’s health status. Subsidies would be available for those with low incomes, and those who were very poor would receive coverage under an expanded Medicaid program.

Sound familiar? It is the essence of Romneycare, the health reform plan enacted in Massachusetts in 2006 with the support of Republican governor Mitt Romney.

Romneycare emerged after more than 15 years of Republican efforts to implement such a system. It was originally devised by the Heritage Foundation, a conservative think-tank, in 1989. The concept was supported by 21 Republican senators in 1993, including many moderates, when it formed the basis of the Health Equity and Access Reform Today Act, an alternative to the Clinton plan that was then being debated in Congress.

Heritage encouraged the enactment of Romneycare in 2006 and subsequently touted the plan as a workable solution that should be implemented across the country.

And the concept formed the basis of a plan proposed in 2009 by two conservative Republicans, Representative Paul Ryan and Senator Tom Coburn, the Patients’ Choice Act.

Of course, the Republican market-based plan is also the core of the Affordable Care Act.

What happened when Democrats signed on to the approach? The Republican consensus immediately evaporated. Even Heritage turned against its own handiwork. As soon as the ACA was enacted in 2010, Republicans in Congress announced unbending opposition and began an unrelenting effort to “repeal and replace.”

But seven years later, that promise remains little more than a slogan. Republicans voted more than 60 times to repeal all or part of the ACA while Obama was president, knowing their votes were merely symbolic, since he was certain to veto any legislation that emerged.

And now that they control of both houses of Congress and the White House and have the chance to actually bring a plan to fruition, they can’t figure out what they want.

Republican conservatives want to eliminate any trace of the ACA, even if it means denying lifesaving health care to tens of millions of Americans. Moderates want to insure that whatever form a replacement takes, the ACA’s coverage gains are largely maintained. The Republican health care bill that failed in the Senate this week, the Better Care Reconciliation Act, meets the goals of neither wing.

President Trump can’t seem to decide what he wants, either.  He promised at the start of the presidential campaign that he would not reduce Medicaid spending, but his budget proposal includes major cuts.

The only unifying theme in Republican positions today is a desire to dismantle anything created by President Obama and his Democratic colleagues, even programs based largely on their own principles. That is hardly a vision for constructive public policy.

Crafting a complex government program requires painstaking work, including the arduous task of consensus building. It is not accomplished by hatching a plan through the secret deliberations of 13 senators, as Senate Republicans did in crafting the BCRA, and then rushing it to a vote.

But the laborious work of building programs and forging consensus is the essence of governing. That’s a lesson members of the Republican leadership do not seem to have learned. With their failure, at least so far, to either repeal or replace the ACA, they are now seeing the results.

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Previously posted on the Health Cents blog on Philly.com.

Can Trump Simply Stop Paying Subsidies to Insurance Companies?

By Elisabeth J. Ryan

In recent days, President Donald Trump announced, via Twitter, that "If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!"  He was presumably referring first to cost-sharing reduction subsidy payments to insurance companies required by the Affordable Care Act and, second, to the fact that members of Congress and their staff are required to buy health insurance on the ACA market instead of being allowed on the federal employee health plan.  However, unlike most people who purchase insurance via the marketplace, Congressional staffers still receive an employer subsidy.  Ending subsidy payments to insurance companies could be catastrophic to the market - so can Trump simply stop paying them?

Section 1402 of the Affordable Care Act mandates that insurers reduce the amount of cost-sharing that individuals are responsible for; in turn, the government pays the insurer subsidies in order to make up for the discounts passed onto consumers.  However, the House of Representatives sued the then-Obama administration in 2014, claiming that such subsidy payments were illegal and unconstitutional because Congress never made specific appropriations for them.  In May 2016, the federal district court decided in favor of the House , finding that the executive branch (the Department of Health and Human Services in this case) making payments to insurers in the absence of a specific Congressional appropriation to do so is illegal and must cease.  The judge stayed her order, however, pending appeal (or, as the Republicans hoped, a change in the law entirely).  This has left the payments in a sort of limbo - the Obama administration continued to pay the subsidies and, thus far, so has the Trump administration.  But he has been hinting for months that wants to stop that practice; in response, numerous state Attorneys General filed a motion to intervene in the case, fearing that Trump would drop the appeal and allow the order of non-payment to stand.  On August 1, the court granted the motion, ensuring that the appeal will at least continue.  A crucial legal questions remains: even if the district court's order is overturned, would that simply allow the administration to continue making payments or is there some mechanism to compel the payments?

The House has relied on the fact that a specific appropriation exists for section 1401 of the ACA, which grants tax credits to some individuals to offset their insurance purchase costs.  And because section 1402 (the insurance subsidies) is not specified in that or any other appropriation, the court agreed that no such appropriation exists.  However, as the Obama administration and now the state AGs argue, the 1401 appropriation also covers 1402; that is, indeed, the fund used currently to pay the subsidies. 

If the government stops paying the subsidies, there is little question that the insurance market will destabilize quickly and critically.  While the details may vary based on state law, insurers could drop participation in the marketplace for the rest of 2017, could choose not to be part of the marketplace in 2018 at all, and would certainly raise premium costs for consumers, perhaps as much as 20%.

If Trump does announce that he will cut off payment of the subsidies to the insurance companies – the next payment is due on August 21 – states, insurance companies, and perhaps even consumers would likely sue immediately.  Indeed, some states may be preparing to file an action before he even announces a decision.  As California Attorney General Xavier Becerra has said, “We’re not going to wait to find out what Donald Trump wants to do.  My team is ready to defend these subsidies in court.”  AG Becerra has characterized the President’s threats to end the subsidies as “extortionist tactics.”  

Of course, Congress could remove the uncertainty (at least temporarily) about whether the subsidy payments will continue by passing a specific appropriation and may be attempting a bipartisan solution to do so.  But unless and until that happens, the insurance marketplace - and the healthcare plans of millions of consumers - remains in a precarious position.

Health Care for Trans Military Members is Not That Expensive

By Elisabeth J. Ryan

Today, the President tweeted that he is barring all transgender individuals from serving in the military "in any capacity."  One justification he claimed was their "tremendous medical costs."  But, as STAT points out, "at least two studies in recent years have found that the cost of medical care for transgender service members would be minimal."

A June 2016 study from the RAND Corporation estimated that there were between 1,320 and 6,630 transgender active-duty service members — out of 1.3 million service members in total — and noted that not all of them would seek treatment related to gender transitioning. The study also estimated that the cost associated with medical care for gender transition would only increase military health care expenditures by between $2.4 million and $8.4 million each year — an increase of between 0.04 and 0.13 percent.

A September 2015 study published in the New England Journal of Medicine reached similar cost estimates.  The study estimated that there were about 12,800 transgender service members who would be eligible for medical care. But it hypothesized that fewer than 200 would require care for gender transition each year, based on the percentage of transgender people who sought such care outside the military and the percentage of Australian service members who sought transition-related care.

The overall estimated cost to the Pentagon: $4.2 million to $5.6 million — what the study’s author called “little more than a rounding error in the military’s $47.8 billion annual health care budget.”