News and information useful to Cleveland-Marshall College of Law students, faculty and staff.

Archive for the ‘Health law’


Ohio’s Application for PPACA State Innovation Waiver Denied

CCIIO logoOhio’s application for a State Innovation Waiver under section 1332 of the Patient Protection and Affordable Care Act (PPACA) was recently denied.  Ohio was specifically seeking to waive the “individual mandate.”*  Per federal guidelines (see 45 C.F.R. 155.1308(c)), the application was reviewed by the U.S. Department of Health and Human Services and the U.S. Department of the Treasury (hereinafter “the Departments”).  The Departments found the application to be incomplete, as communicated to the Ohio Department of Insurance in a 5/17/18 letter from Randy Pate, Director of the Center for Consumer Information & Insurance Oversight (CCIIO) and Deputy Administrator of the Centers for Medicare & Medicaid Services.  Specifically, the Ohio application did “not include a description of any program implementing a waiver plan for providing coverage that meets section 1332 requirements,” and did not include a description of the reason Ohio was seeking to waive the “individual mandate.”  [See requirements detailed at 42 U.S.C. 18052 and 45 C.F.R. 155.1308(f)(3)(iii).]  The CCIIO oversees the implementation of PPACA provisions related to private health insurance, including Section 1332 State Innovation Waivers, which permit a state to “pursue innovative strategies for providing their residents with access to high quality, affordable health insurance while retaining the basic protections of the ACA.”  After the Departments make a preliminary determination that a State Innovation Waiver application is complete, they provide for a public notice and comment period, and make a final decision on the application within 180 days.

*The “individual mandate” was originally codified at 26 U.S.C. §5000A and 26 C.F.R. 1.5000A-2.  The Tax Cuts and Jobs Act (Pub. L. No. 115-97, 131 Stat. 2054, 12/22/17; text not yet available – see Section 11081 of H.R. 1, 115th Cong., 2017) repealed §5000A and eliminated the penalty associated with the individual mandate, beginning in 2019.  However, no changes were made to the statutory language that established the mandate.  For more information, see The Individual Mandate for Health Insurance Coverage: In Brief, by the Congressional Research Service.

ORC 3701.034 Ruled Unconstitutional

Planned Parenthood LogoThe U.S. Court of Appeals for the Sixth Circuit has affirmed that ORC 3701.034 is unconstitutional.  [See Planned Parenthood of Greater Ohio v. Lance Himes, 6th Cir., No. 16-4027, 4/18/18.]  The court said the law violates the “unconstitutional conditions doctrine,” which forbids the government from placing conditions on a recipient of federal funds that would infringe on the recipient’s constitutional rights. While the government has no obligation to fund abortion activities, it may not use its control over federal funds to stop Planned Parenthood from exercising its constitutionally protected right to advocate for legal abortion.  ORC 3701.034 was codified by House Bill 294, and was to become effective May 23, 2016.  It would have prevented Planned Parenthood’s 28 Ohio-based affiliates – only 3 of which provide abortion services – from receiving federal money to pay for programs under the Violence Against Women Act, the Breast and Cervical Cancer Mortality Prevention Act, an infertility prevention project, the Minority HIV/AIDS Initiative, and a personal responsibility education program.  On 5/23/26, the U.S. District Court for the Southern District of Ohio issued a temporary restraining order, blocking enforcement of the law.  [See Planned Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016).]

Hawaii Legalizes Physician-Assisted Suicide

image of caduceus symbolThe state of Hawaii recently legalized physician-assisted suicide.  The “Our Choice, Our Care Act” will “give patients the ability to choose their own medical care at the end of life and at the same time, ensure robust safeguards are in place to prevent any possible abuse.”  A mentally competent adult resident patient, determined to be suffering from a terminal disease and who has voluntarily expressed a wish to die, may make an informed request for “a prescription that may be self-administered for the purpose of ending the adult’s life.”  At all times, the patient “shall retain the right to rescind the request for medication and be under no obligation to fill the prescription or use the medication.”  For additional legislative history information on this act, see the HB2739 HD1 page.

Bloomberg BNA’s Health Law Related Databases

Bloomberg BNA (link to our law databases list) has a number of health and health care related databases (among many others) to be aware of.  The following are all great resources for current awareness health law related information:

DHHS Cuts In-Person Advisory Committee Meetings

DHHS LogoThe U.S. Department of Health and Human Services has cut back on in-person meetings of Advisory Committees under the purview of the HHS Office of the Assistant Secretary for Health (OASH).  “To promote cost-effectiveness and efficiencies,” Advisory Committees are “to ensure that at least half of their committee meetings and all of their subcommittee meetings [are] conducted virtually.”  In-person Advisory Committee meetings are open to the public, and time is allotted for public comment.  Virtual meetings will mean Advisory Committee deliberations will not be public, and likely make robust discussion more difficult.  This change comes at an important time.  The Secretary’s Advisory Committee on Human Research Protections (SACHRP) is currently working on implementation of significant revisions to regulations concerning human research subjects – the Common Rule (45 C.F.R. 46).  SACHRP met in-person March 13-14, 2018, but is currently required to meet virtually on July 10, 2018 and Ocotber 16, 2018.