December 21, 2018 Edition

Happy Holidays from CHEAC Staff

CHEAC Staff wishes all a very happy holidays and happy new year! The CHEAC Office will be closed December 24-26 and December 31-January 1. Staff availability will be very limited next week. The CHEAC Weekly Update will not be distributed next week and will resume the week of December 31.

Federal Judge in Texas Rules ACA Unconstitutional, Setting up Extended Legal Battles

Last Friday, Texas Federal District Court Judge Reed O’Connor struck down the Affordable Care Act (ACA) on the grounds that the individual health insurance mandate is unconstitutional and the remaining ACA provisions cannot stand without the individual mandate.

The issue at hand was whether the ACA’s individual mandate still required Americans to obtain health insurance coverage after Congress repealed the financial penalty as part of the tax reform measure signed into law by President Donald Trump in December 2017. In a previous legal challenge to the ACA in 2012, the U.S. Supreme Court upheld the individual mandate as constitutional, determining that Congress could legally impose a tax penalty on people who do not have health insurance. In the latest case out of Texas, however, plaintiffs argued that because Congress zeroed out the tax penalty, the individual mandate was now unconstitutional – and the rest of the ACA could not be severed from the mandate.

Judge O’Connor of Texas agreed with the 18 Republican state attorneys general and two Republican governors who brought the case Texas v. United States. In his Friday ruling, however, Judge O’Connor stopped short of issuing a nationwide injunction, leaving in place the law for the time being.

Citing immense confusion and ambiguity, California Attorney General Xavier Becerra and 15 other states and the District of Columbia filed a motion on Monday to compel the federal judge to clarify that the ACA was still federal law and that consumers are still entitled to ACA benefits and protections. Becerra and others argue that millions of Americans are subject to harm if the ACA is invalidated and the law should be enforced while supporters and opponents of the ACA continue their legal battles. The U.S. Department of Health and Human Services (HHS) released a statement on Monday indicating that because an injunction had not been issued by the federal district court, “HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision.”

The matter will certainly result in continued legal battles and very likely make its way to the Supreme Court once again. Attorney General Becerra and other defendant states indicated on Friday that they would challenge the ruling with an appeal in the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Should the matter continue to the Supreme Court, it will be the third time the court must rule on a constitutional question related to the ACA. Recall, in 2012, the court upheld the law and then rejected to take up another legal challenge in 2015.

While any immediate effect is very unlikely to occur as the result of Friday’s ruling, extended legal battles continue to threaten the survival of the ACA, its coverage of millions of Americans, protections for individuals with pre-existing conditions, and much more.

Trump Administration Announces Intent to Require Additional Work Requirements for SNAP Benefits

On Thursday, U.S. Secretary of Agriculture Sonny Perdue announced, at the request of President Donald Trump, an intent to impose additional work requirements for Supplemental Nutrition Assistance Program (SNAP) benefits. Under current law, able-bodied adults without dependents (ABAWD) are individuals 18 to 49 who is not elderly, a woman who is pregnant, or someone with a disability. ABAWDs are required to work 20 hours per week or be in a job training program if they receive SNAP benefits for more than three months in a three-year period. Current regulations allow states to waive this requirement for up to two years in areas with unemployment rates that are at least 20 percent greater than the national rate.

Under the proposed rules released on Thursday, the U.S. Department of Agriculture (USDA) states could waive the work requirement only in areas where unemployment is above seven percent. The USDA is also proposing to limit these state-based waivers to one year and remove the ability for states to “carryover” ABAWD waiver exemptions they have earned from year-to-year. According to the USDA, the provisions included in the proposed rule could reduce areas that qualify for waivers by approximately 75 percent, impacting nearly three-quarters of a million SNAP recipients.

Thursday’s announcement came just hours before President Trump signed the $867 billion farm bill that governs all agricultural-related programs, including SNAP and SNAP-Ed. Recall, the legislation passed by Congress did not include significant modifications to SNAP as initially proposed in the House of Representatives’ version of the farm bill. With Thursday’s announcement on the forthcoming proposed rule, the Trump Administration is ostensibly sidestepping Congress after tougher SNAP requirements were not included in the farm bill.

The proposed rule must be published in the Federal Register and undergo a 60-day public comment period which is expected to begin in the coming weeks. The proposed rule to be published in the Federal Register is available here and a USDA fact sheet on the proposed changes is available here.

State Auditor Releases Audit Report on the San Diego Hepatitis A Outbreak

Yesterday, the California State Auditor released their audit report regarding the response to San Diego’s 2017-18 hepatitis A outbreak. Recall, San Diego faced an unprecedented hepatitis A outbreak involving roughly 584 reported cases, 398 hospitalizations and 20 deaths. Amid concerns around the response to the public health crisis, lawmakers requested an audit investigating response activities of both the county and city.

The audit report stated that while the county did take early steps to intervene and contain the outbreak, the county did not set measurable targets and time frames, and did not determine needed resources, such as public health nurses, for administering vaccinations for at-risk populations. It also suggested that the county and city were delayed in implementing sanitation measures and that the county did not share timely information specific to the city causing the city to misunderstand the seriousness of the outbreak.

The State Auditor outlines recommendations for the Legislature, California Department of Public Health (CDPH), San Diego County and the City of San Diego as noted below. While all parties generally agree with the recommendations, actual responses from CDPH, San Diego County and the City of San Diego can be found here. San Diego County also continues to stand by their May 2018 Hepatitis After Action Report, which can be found here.


  • Clarify existing state law specifying that local health officers may issue directives to other governmental agencies to take actions to control the spread of communicable diseases.
  • Require health officers to make available relevant information to local public agencies including locations of concentrated cases, number of residents affected and response measures to be taken.

California Department of Public Health

  • Amend the CDPH Hepatitis A Outbreak Response Plan by February 28, 2019 to recommend jurisdictions set vaccination targets quickly, timelines for achieving those targets and determine resources needed.
  • Finalize the medical powers guide by April 30, 2019 and include to the greatest extent possible, actions local health officers can take to control the spread of communicable diseases.

San Diego County

  • Ensure response plans include specific and achievable objectives, timeframes and needed resources.
  • Update the county emergency operations plan and other documents to reflect the point above by April 30, 2019
  • Promptly convene policy groups with representatives from relevant local jurisdictions.
  • Promptly share data with relevant local jurisdictions
  • Enter MOUs with the city or negotiate revisions by March 31, 2019 to clarify the role of each entity over public health matters.

City of San Diego

  • Enter MOUs with the county or negotiate revisions by March 31, 2019 to clarify the role of each entity over public health matters.
  • Examine its actions related to the Hepatitis A outbreak prior to the emergency declaration to identify issues by March 31, 2019 and develop a corrective action plan.

National Study Finds Record Increase in Electronic Cigarette Use Among Teens, Surgeon General Declares Epidemic

On Monday, findings from the Monitoring the Future (MTF) study, sponsored by the National Institute on Drug Abuse, indicated a sharp increase in electronic cigarette use, or vaping, among U.S. teens over the past year. The study, conducted annually, surveys eighth, 10th, and 12th graders about their attitudes and behaviors toward alcohol and other drugs. Researchers found that the increase in nicotine vaping in 2018 was the largest annual jump in the use of any substance, including cannabis, in the study’s 44-year history.

37.3 percent of 12th graders indicated they vaped nicotine within the past year, compared to 27.8 percent in last year’s study. More frequent use of vaping, indicated by vaping within the past 30 days, among 12th graders approximately doubled this year, rising to 21 percent in 2018 from 11 percent in 2017. In total, researchers found that the rise in vaping amounted to approximately 1.3 million more teen users in 2018 compared to 2017.

In other substances, tobacco cigarettes remain at historic lows with 3.6 percent of 12th graders indicating they smoke daily; 20 years ago, 22 percent of 12th graders indicated they smoked daily. 5.8 percent of 12th graders indicating daily cannabis use in 2018, which has remained relatively stable over the past 20 years. The study also showed that teenagers were beginning to move away from other substance use such as alcohol and opioids with slightly decreasing rates compared to 2017.

Prompted by the most recent findings on vaping, U.S. Surgeon General Jerome Adams on Tuesday declared electronic cigarette use among youth a national epidemic. Adams issued an advisory calling on local health departments to implement evidence-based population-level strategies to restrict e-cigarette use and access, advertising and marketing, and availability of flavored tobacco products. Adams’ advisory also outlines actions for health professionals, parents, and teachers to help curb the use of e-cigarettes among teens. Both Adams and U.S. Health and Human Services Secretary Alex Azar expressed concern with the increase in e-cigarette use stating, “We have never seen use of any substance by America’s young people rise this rapidly. This is an unprecedented challenge.”

The 2018 Monitoring the Future study is available here. More information on Surgeon General Adams’ advisory and teen tobacco prevention is available here.

HHS Issues Guidelines on Naloxone Prescribing, FDA Advisory Boards Recommend Increased Naloxone Access

On Wednesday, the U.S. Department of Health and Human Services (HHS) issued guidance for health care providers and patients detailing how naloxone should be prescribed to all patients at risk for opioid-related complications, including overdose. HHS Assistant Secretary for Health and Senior Advisor for Opioid Policy Adm. Brett Giroir announced the updated guidance that reinforces and expands upon previous guidelines by the U.S. Centers for Disease Control and Prevention (CDC).

Under the HHS guidance issued this week, clinicians are recommended to prescribe or co-prescribe naloxone to individuals at risk for opioid overdose, including, but not limited to: individuals who are on relatively high doses of opioids, take other medications which enhance opioid complications, or have other underlying health conditions. By prescribing or co-prescribing naloxone to at risk individuals, patients and loved ones may be better equipped for potential complications of overdose, according to the recommendation. The guidance also encourages clinicians to educate patients and those who may respond to an overdose on when and how to administer naloxone in its variety of forms. Recall, U.S. Surgeon General Jerome Adams in April issued a national public health advisory urging more Americans to keep on hand and learn how to use naloxone to address the nationwide opioid epidemic.

Also of note, two U.S. Food and Drug Administration (FDA) panels narrowly voted to urge the FDA to take steps to make naloxone more widely available. In a joint meeting on Tuesday, the FDA Anesthetic and Analgesic Drug Products Advisory Committee (AADPAC) and the Drug Safety and Risk Management Advisory Committee (DSaRM) recommended that labels on opioids should urge clinicians to co-prescribe naloxone to high-risk patients. The FDA is not required to follow the advisory boards’ recommendations, but the panels do play an important role in the formulation of regulatory and policy matters of the agency. Despite the updated guidance from HHS on prescribing naloxone this week, it remains to be seen if FDA Commissioner Scott Gottlieb will also take the steps to issue further guidance as the advisory boards recommended.