Philadelphia Mayor Cherelle Parker signed a law that would restrict mobile health vans providing critical support, such as clean syringe access and naloxone for overdose emergencies, from operating in Kensington. The measure limits vans to just two pre-approved sites, caps each stop at 45 minutes, and requires providers to obtain a permit to operate. Groups that violate the rules face fines of up to $1,000—and if they incur three violations, they become permanently ineligible to obtain the required permits. 

Though the Philadelphia City Council has described the ordinance as a response to congestion and litter, many community complaints center on concerns about people who use drugs gathering near the vans. Regardless of the framing, these restrictions undermine the very purpose of making care mobile, which is to deliver care where it is most urgently needed.

Mobile health units exist mainly to serve people who use drugs, who often struggle to access traditional healthcare. But they also offer other kinds of support, like basic medical care and community outreach, to anybody, not just drug users, who would otherwise go without care. Between July 2022 and June 2023, Prevention Point Philadelphia’s mobile and stationary syringe services reached more than 30,000 people, provided 1,103 wound care visits, enrolled 357 new participants in medication-assisted treatment for drug addiction, and distributed over 95,000 doses of naloxone, the medication that reverses opioid overdoses. Demand for these services has surged, with the organization’s client numbers more than tripling over the past three years. 

Restricting vans to two fixed locations undermines their core strength: mobility. Outreach teams deploy based on real-time need. Much of Kensington falls within the 19134 zip code, where the Philadelphia Department of Public Health recorded 193 overdose deaths in 2022. A rigid permit system will leave many blocks without timely access to care. 

This policy also disrupts the trust and continuity that are the foundation of successful harm reduction services. Patients who might avoid hospitals or doctors’ offices because of past mistreatment—an exceptionally common experience for people who use drugs—might be willing to accept naloxone from a familiar outreach worker. That small act of trust may also allow the patient to receive wound care and, perhaps later, a discussion about treatment options. 

Philadelphia can address legitimate quality-of-life concerns without constraining lifesaving services. For example, it could establish rotating service zones for mobile vans to prevent clustering in one area, set voluntary sanitation and reporting standards, and offer grants to providers that meet sanitation standards. Programs like Project Reach already work alongside mobile harm-reduction providers to remove thousands of bags of trash and tens of thousands of discarded syringes from city streets each year, showing that public health and public space improvements can go hand in hand. 

The city can also better address the root causes of the problems mobile units seek to address by expanding low-threshold treatment programs and supportive housing. 

As a strategy, mobile outreach has demonstrated effectiveness in saving lives, building community trust, and improving neighborhood safety. Limiting these services to just two fixed locations—especially when Philadelphia is still losing nearly four residents a day to overdose—risks reversing the marked decrease in overdoses that the city has seen. Mayor Parker and city councilmembers should amend this new ordinance and collaborate with providers and the community to design a better approach that can preserve both neighborhood dignity and access to the types of flexible care on which our most vulnerable neighbors rely.

The post Restricting mobile health vans in Philadelphia will lead to more overdose deaths appeared first on Reason Foundation.

Compelled by mandatory reporting laws and concerns about personal liability, medical providers are increasingly being co-opted into acting as law enforcement rather than caregivers. The result is that nearly 40 percent of child welfare removals cite parental substance use as the reason, though most cases involve no imminent danger. Instead of support that might help families remain together safely, these families are subject to surveillance and punishment.  

Soon-to-be mothers are also at risk when they seek prenatal or other forms of care if they disclose drug use or are even suspected of it. Prosecutors in 45 states have filed charges related to prenatal drug use, relying on general child welfare or endangerment statutes because no state explicitly defines prenatal substance use as a standalone crime. This is especially concerning because the law doesn’t distinguish between illicit drug use and prescribed treatment, like methadone or buprenorphine, despite clear medical evidence that these treatments are appropriate for opioid use disorder during pregnancy. 

Between 2006 and 2022, over 1,379 women were arrested or detained for drug use during pregnancy. These prosecutions spiked following the Dobbs v. Jackson decision by the Supreme Court, which rolled back federal protections for reproductive rights. In the year post-Dobbs, prosecutors charged more than 200 people with alleged drug use during pregnancy, an 88% increase from the 25 cases the year before. More than 100 of those cases were in Alabama alone. Some states, like South Carolina, use “fetal personhood” laws to interpret child endangerment or neglect laws in ways that criminalize people for drug use during pregnancy, even when no harm to the baby occurred.

This punitive approach to mothers struggling with substance use disorders has backfired spectacularly. States that criminalize maternal substance use see 41% higher rates of Neonatal Abstinence Syndrome—where infants experience drug withdrawal—and worse health outcomes for both mothers and infants. Why? Because fear pushes pregnant people away from care and proper management of their substance use, putting both mother and child at extreme risk. States that offer voluntary treatment without the threat of legal punishment, by contrast, see higher engagement in treatment, better recovery outcomes, and healthier births. These policy differences aren’t just bureaucratic; they can determine whether families stay together or are torn apart and traumatized.

State-level approaches to maternal substance use tend to fall into two camps: punitive responses that involve criminal or child welfare systems and passive approaches that offer little to no support for pregnant people seeking treatment. While a handful of states protect pregnant people seeking drug treatment from prosecution, 24 states and the District of Columbia define prenatal drug exposure as child abuse or neglect under civil child welfare statutes. In 25 states, healthcare providers are forced to act as informants due to laws that require them to report suspected maternal drug use to child protective services, regardless of actual harm or context. 

Some states go even further by mandating drug testing for pregnant patients suspected of drug use or authorizing involuntary commitment for “pregnant drug abusers.” While the federal Child Abuse Prevention and Treatment Act (CAPTA) requires states to have procedures to address substance-exposed newborns, it does not mandate punitive responses. Yet many states interpret CAPTA in ways that prioritize surveillance and removal over support and care, deepening the legal and health disparities faced by pregnant individuals with substance use disorders.

Criminalizing pregnant substance users isn’t just cruel; it’s expensive. Incarcerating a single person costs states an average of $33,000 annually (and more than $70,000 in California and New York). If incarceration results in children in need of foster care placement, that costs taxpayers an additional $25,000 annually per child. Taxpayers must bear these expenses while the underlying policies fail to improve outcomes for substance use or maternal and infant health. 

In contrast, voluntary treatment-based approaches to substance use during pregnancy are far more likely to improve maternal and infant health and are also significantly more cost-effective. Care-based interventions, such as medication-assisted treatment, harm reduction services, parenting support, and housing assistance, encourage ongoing care throughout pregnancy. As a result, both mothers and infants have improved outcomes, with a reduction in costs associated with emergency services and hospitalizations.

A few states have passed legislation to protect pregnant women’s access to medications for opioid use disorder. For example, Louisiana passed a law in 2022 requiring licensed drug treatment facilities that serve pregnant women to offer at least one FDA-approved opioid agonist therapy (such as methadone or buprenorphine). Meanwhile, Maine and Pennsylvania have allocated funds to create family-based recovery housing, allowing mothers to stay with their children. This approach has been shown to increase treatment completion rates to as high as 81%, increasing the likelihood of long-term recovery and saving taxpayers from the costs associated with foster care placement. 

Keeping mothers and babies together, wherever it is safe to do so, eases the burden on overextended foster systems and allows taxpayer resources to be directed toward long-term wellness rather than short-term punishment. Especially in a time of stretched budgets and growing need, treatment-focused care provides a more effective and fiscally responsible path forward.

The legislative path forward: Evidence, dignity, and autonomy

Reason Foundation drafted model legislation to give states a clear and actionable roadmap for protecting families and improving maternal health outcomes. Titled “An Act to Protect Individual Liberty in Health, Recovery, and Harm Reduction Access,” the bill responds directly to the failures of punitive policies that treat substance use during pregnancy as a crime. Drawing on decades of clinical research and public health guidance, the legislation includes protections against non-consensual drug testing, safeguards for maternal privacy, and expanded access to peer recovery support. The proposed model legislation reflects what the evidence bears out:

• No one should be prosecuted or penalized simply for being pregnant and struggling with substance use.
  
• Drug testing during pregnancy must require informed consent, and positive results alone must not justify family separation.
  
• States should prioritize voluntary, trauma-informed services, such as medication-assisted treatment, prenatal care integrated with addiction support, and peer mentoring that help families stay together and healthy without relying on coercion or punishment.

Reason Foundation’s model legislation protects civil liberties by requiring informed consent for drug testing, prohibiting automatic reporting based on positive tests alone, and ensuring that substance use during pregnancy is not treated as grounds for criminal charges or automatic family separation.

The punishment of drug use during pregnancy has failed to reduce substance use, hasn’t improved outcomes for children, and violates the rights and dignity of those most in need of care. This legislative model provides states with a practical and evidence-based alternative, grounded in compassion, respect for human dignity, and the belief that every family deserves to thrive.

Full Model Legislation: An Act to Protect Individual Liberty in Health, Recovery, and Harm Reduction Access

The post Healthy families start with compassionate policy: Addressing drug use during pregnancy appeared first on Reason Foundation.

Nevada Question 2 is a proposed constitutional amendment referred by the state legislature to the 2024 ballot that would change certain language within Article 13 of the Nevada Constitution. Specifically, it would alter the current description of public establishments that treat mental illnesses and other disabilities. Currently, the Nevada Constitution describes these entities as: “institutions for the benefit of the insane, blind and deaf and dumb.” If Question 2 passes, this phrase would be changed to: “entities for the benefit of persons with significant mental illness, persons who are blind or visually impaired, persons who are deaf or hard of hearing and persons with intellectual disabilities or developmental disabilities.” 

Fiscal Impact 

Legislative staff did not prepare a fiscal note when Question 2 was presented as a legislative proposal. It is not expected to affect revenues or expenses at the state or local level. 

Proponents’ Arguments 

Nevada Assemblywoman Robin Titus (R-Churchill), a lead sponsor of Question 2 in the legislature, argued the change is necessary to reflect differences in how language is used and perceived today versus when the Nevada Constitution was written. In a committee hearing, she said: “I am aware that when the Nevada Constitution was written, different terminologies were used to describe persons with disabilities or a mental illness. However, more than 156 years after Nevada was admitted into the Union, it is time to give these words a more critical look. We should change them to contemporary language that is not deemed to be discriminatory or narrow.” 

Opponents’ Arguments 

During legislative hearings, no one testified in opposition to the proposal that is now Question 2. 

Discussion 

The constitutional amendment contemplated by Question 2 does not change any functions of the Nevada government. It simply changes the way persons with certain disabilities are described. 

The post Nevada Question 2 would revise language related to public entities for individuals with mental illness, blindness, or deafness appeared first on Reason Foundation.

Maryland Question 1, the Right to Reproductive Freedom Amendment, would add a new section to the Declaration of Rights in the Maryland Constitution establishing a right to reproductive freedom in the state: 

That every person, as a central component of an individual’s rights to liberty and equality, has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy. The state may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling state interest achieved by the least restrictive means. 

Fiscal Impact 

There is no fiscal impact on the state from this measure. 

Proponents’ Arguments 

Arguments in favor of the amendment come from advocates of abortion rights and are targeted to pro-choice Maryland voters who oppose the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Clinic decision. State polling shows 64% approval for legal abortion in Maryland in all or most cases. Most of the state’s prominent Democrat leaders and organizations support the amendment, including Gov. Wes Moore, Lt. Gov Adrienne Jones, Common Cause Maryland, Pro-Choice Maryland, and major labor unions. 

Proponents argue that while abortion rights are already a part of Maryland law, enshrining them in the state constitution would add another layer of protection. In a statement, Common Cause Maryland said, “”As reproductive rights are being eroded across the country, the General Assembly must act affirmatively to ensure that all Marylanders have the fundamental right to reproductive liberty, regardless of what the Supreme Court or any other state determines.” 

Sharon Blugis, interim executive director of Pro-Choice Maryland, further highlights the public-health and social implications of abortion rights: 

Access to safe, legal, and accessible abortion and reproductive health care is not only a moral imperative, but it also has enormous social, economic, and health benefits to individuals, families, and communities. Bans and restrictions on abortion and reproductive care harm pregnant people with particular impact on people of color, inappropriately interfere in the trusted doctor-patient relationship, are linked to negative maternal health outcomes, and serve an agenda that would have all pregnancy outcomes scrutinized, controlled, and criminalized. 

Former Maryland Governor Larry Hogan, the Republican U.S. Senate candidate in November, has signaled to voters his overall support of abortion rights and opposition to the Supreme Court’s overturning of Roe. His campaign-trail comments on abortion have focused on the national questions he would face in Washington, but he pledged to Maryland voters that he would not support a national legislative abortion ban. 

Opponents’ Arguments 

Socially conservative organizations and clergy lead the opposition to the Maryland amendment. In addition to general opposition to the extra layer of constitutional projection, opponents have focused on the potential for the amendment to protect late-term abortions, currently restricted under Maryland law. 

The Maryland Catholic Conference wrote that the amendment “would establish a fundamental right to reproductive freedom and would enshrine abortion, at any stage, into our State Constitution. We believe that every person is created in the image and likeness of God and all life should be protected and respected from conception to natural death.”  

Maryland doctor Frank Arlinghaus said, “Amending the Maryland Constitution is an unusual and extreme measure, and this bill would take an extreme position on abortion, restricting the legislature’s opportunities to pass reasonable restrictions on abortion in late pregnancy or to restrict it as other healthcare.” 

Discussion 

Abortion in Maryland is currently legal until the point of fetal viability, with exceptions for the health of the mother after viability. 

Like several other state initiatives in the wake of the U.S. Supreme Court’s May 2022 Dobbs v. Jackson Women’s Health Clinic decision overturning Roe vs. Wade, the Maryland ballot measure seeks to further protect abortion rights already written into law by enshrining them in the state constitution. In 2022 and 2023, voters in four states (California, Vermont, Michigan, and Ohio) passed similar measures, while voters in three other states (Kansas, Kentucky, and Montana) defeated measures that would have restricted abortion rights. Maryland is one of at least six states with abortion-related measures on the 2024 ballot. 

The Right to Reproductive Freedom Amendment is legislatively referred, meaning it was passed by Maryland’s state Senate and House with 60% supermajorities before being put to voters. Both chambers passed the measure, with near-unanimous support from majority Democrats and unanimous opposition from Republicans. 

Many ballot initiatives require the informed voter to familiarize themselves with details of fiscal policy and regulation that are not usually at the forefront of political debate, and on which voters may not have strong opinions when walking into the voting booth. Maryland’s Right to Reproductive Freedom Amendment is just the opposite. Most voters nationwide already have pro-choice or pro-life views–often firmly held–and will vote on the measure according to those views. 

The Maryland amendment is widely expected to pass. Polling data shows Maryland clearly in the pro-choice camp.  

If passed, this amendment would change Maryland law on abortion in two ways. First, it would enshrine Maryland’s clear cut abortion rights in the state constitution, making it far more difficult for future legislatures to reverse or restrict them. Second, it would ostensibly provide the same protections to abortions after the point of fetal viability, currently allowed under state law only in very limited circumstances. 

The latter reflects a pattern in post-Dobbs state ballot initiatives protecting abortion rights. Solidly blue or pro-choice states have passed (California and Vermont) or will vote this year (Maryland and New York) on measures offering wider abortion protections and not mentioning the issue of fetal viability. States with voters more divided on abortion, such as Missouri, Colorado, and South Dakota, face initiatives allowing for restrictions on abortion rights after viability or some other point during pregnancy. The latter approach is more consistent with the precedent set down in Roe, while the former approach offers more protections for mothers’ choices. 

Maryland’s pro-life voters strongly oppose both changes to state law described above, and are likely, as in other states, to vote against the amendment in overwhelming numbers. 

Pro-choice voters will heavily favor the extra protections on abortion rights overall, but may be divided to some degree on the amendment’s extension of protections to abortion rights after fetal viability. Polling typically shows many voters who identify as pro-choice and oppose Dobbs but also favor restrictions in some cases, including the length of the pregnancy and viability. 

Some basic facts may add useful perspective. Over 99% of abortions occur before the 24th week of pregnancy, the most common estimate of fetal viability. The vast majority of the less than 1% of abortions happening after viability are motivated by the mother’s health or fetal anomalies. Many such procedures are medical emergencies where time is of the essence. Bans on late-term abortions, or protections requiring often-subjective circumstances can and in some instances have cost critically needed time. 

The post Maryland Question 1 would establish a right to reproductive freedom appeared first on Reason Foundation.

Nevada Question 6, the Right to Abortion Initiative, would add Article 1, Section 25 to the state’s constitution, in part reading: 

All individuals shall have a fundamental right to abortion performed or administered by a qualified health care practitioner until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. 

The constitutional protections set forth in the proposed amendment are similar to current Nevada law, under which abortion is legal until the 24th week of pregnancy. 

Fiscal Impact 

There is no official estimate of any fiscal impacts from this initiative. Since it does not deviate appreciably from existing state law there is likely no fiscal impact.  

Proponents’ Arguments 

Nevadans for Reproductive Choice has led the campaign in favor of the amendment. Pro-choice activists have argued to Nevada voters that despite not differing substantively from the legal regime in place, a constitutional amendment is nonetheless important due to the overturning of Roe vs Wade and legislation in many states to limit abortion rights. They point out that abortion rights are supported by “a broad majority of Americans.” 

Lindsey Harmon, the organization’s president, stated: 

It’s important to remember that this is about bodily autonomy and individual freedoms, so we believe that belongs in the state constitution, as well as just doubling down and protecting access. We’ve seen a lot of legislators in a lot of other states push abortion bans against the will of the people and so we want to make sure that we’re doing everything we can in the state of Nevada, as well as we want people in the state of Nevada to have an opportunity to vote on this. Take it out of the elected people’s hands and return this vote to the vote of the people. 

Opponents’ Arguments 

Nevada pro-life activists, as well as some state Republicans, have argued against the bill, particularly emphasizing the already-favorable legal climate for abortion in Nevada. Krystal Minera-Alvis, communications director for Nevada Right to Life, told The New York Times the group’s primary strategy this fall is getting the word out that the same rights are already protected under Nevada law. “If the average Nevadan finds out what the law already is, what’s already legalized, they would not vote for it,” she said. 

Nevada’s Republican candidate for U.S. Senate, Sam Brown, has expressed moderate views on abortion, saying he would keep Nevada’s current legal regime and not support any federal abortion ban. 

Melissa Clement of Nevada Right to Life attacked the amendment as political posturing more directly: “As a woman, nothing makes me angrier than Democrats taking one of the most difficult and traumatic decisions a woman can make and using it for political fodder. Scaring women. It’s despicable,” she said at a rally. 

Discussion 

Amendments to Nevada’s constitution currently require just over 100,000 signatures to get on the ballot, and must be passed twice by voters. If passed this year, Nevada’s proposed amendment will go before voters a second time in 2026 before approval. 

Many ballot initiatives require the informed voter to familiarize themselves with details of fiscal policy and regulation that are not usually at the forefront of political debate, and on which voters may not have strong opinions when walking into the voting booth. The Nevada Right to Abortion Initiative is just the opposite. Most voters nationwide already have pro-choice or pro-life views—often firmly held—and will vote on the measure according to those views. 

Like several other state initiatives in the wake of the U.S. Supreme Court’s May 2022 Dobbs v. Jackson Women’s Health Clinic decision overturning Roe vs. Wade, the Nevada ballot measure seeks to further protect abortion rights already written into law by enshrining them in the state constitution. In 2022 and 2023, voters in four states (California, Vermont, Michigan, and Ohio) passed similar measures, while voters in three other states (Kansas, Kentucky and Montana) defeated measures that would have restricted abortion rights. Nevada is one of at least six states with abortion-related measures on the 2024 ballot. 

Abortion rights and restrictions after about 24 weeks already enjoy more protection in Nevada than basic statutory law, because they were passed by voters in a 1990 referendum. The result is that to repeal or change the law would require one voter referendum, whereas undoing the amendment now in front of voters would require two referenda and likely more administrative hurdles associated with amending the constitution. The extra layer of protection afforded abortion rights should voters pass the 2024 and 2026 ballot measures is far from negligible, though this represents the only practical gain for the pro-choice movement from Nevada’s amendment passing. 

The criticism from opponents that the amendment is mostly about politics ring true, though certainly a constitutional provision is stronger than a legislative one. In the wake of the Dobbs ruling, activists on both sides are continuing their political work at the state level. Abortion has long been among the nation’s most divisive issues, and many Nevadans, who polls show favor abortion rights more than most states, may value the political statement in and of itself.  

The post Nevada Question 6 would establish a right to abortion appeared first on Reason Foundation.

South Dakota Amendment G, the Right to Abortion Initiative, would enshrine a trimester framework for regulating abortion in the state’s bill of rights. Ballotpedia summarizes the proposed amendment’s framework: 

• During the first trimester, the state would be prohibited from regulating a woman’s decision to have an abortion; 

• During the second trimester, the state may regulate abortion, but “only in ways that are reasonably related to the physical health of the pregnant woman;” and 

• During the third trimester, the state may regulate or prohibit abortion, except “when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life and health of the pregnant woman.” 

Abortion in South Dakota is currently banned in all cases except to save the life of the mother, the result of a law passed by the state in 2005 that went into effect when the Supreme Court struck down Roe v. Wade in 2022. 

Fiscal Impact 

There is no anticipated fiscal impact.  

Proponents’ Arguments 

Proponents emphasize that relative to the status quo, the amendment would expand abortion rights for South Dakotans and afford the extra layer of protection granted by the state constitution. Former Democratic state lawmaker Nancy Turbak Berry, head of the Freedom Amendment Coalition, rejects South Dakota’s current law as extreme. “It’s about women’s reproductive freedom. We had it. They took it away. We want it back,” she said. 

Those supporting the amendment also point to the compromise nature of the trimester framework, which attempts to replicate the framework in Roe. “We’re trying to restore the rights that women have had for the last 50 years. And that’s why we have used the actual language of Roe v. Wade for the amendment,” said South Dakotans for Health Chairman Rick Weiland.  

Opponents’ Arguments 

Pro-life South Dakotans generally oppose the amendment for the same reasons given by its supporters above. It takes current state law, among the most restrictive of abortion in the nation, restores a framework resembling Roe, and enshrines it in the state constitution. 

State Representative John Hansen, R-Dell Falls, who also serves as the co-chair of the Life Defense Fund, said, “This fight is about saving the lives of countless unborn children in our state. We are grateful to the many dedicated volunteers who have put in countless hours, and we are resolute in our mission to defend unborn babies. ​​Hansen and the Life Defense Fund are currently leading a challenge in court of the signatures collected to place the measure on the ballot, which could see it removed. The deadline for printing ballots is Sept. 18. 

In addition, several prominent pro-choice groups and leaders either oppose the amendment or have publicly declined to endorse it. These include the ACLU and Planned Parenthood, both of which actively support referendums on amendments to protect abortion rights in other states. 

Pro-choice advocates displeased with South Dakota’s amendment say that it does not go far enough to protect abortion rights, with a complicated framework that will be a target for litigation by pro-life groups and a wide scope to restrict abortion written into the amendment. 

Tim Stanley, Planned Parenthood North Central States vice-president for communication, said, “Constitutional amendments are serious and expensive undertakings that must be initiated after due diligence and input from those who would be impacted the most.” 

Representatives of the ACLU and Planned Parenthood have harshly criticized South Dakotans for Health and Rick Weiland for not consulting their national organizations before drafting and seeking signatures on the amendment. 

Discussion 

In 2022 and 2023, voters in four states (California, Vermont, Michigan, and Ohio) passed similar measures, while voters in three other states (Kansas, Kentucky, and Montana) defeated measures that would have restricted abortion rights. South Dakota is one of at least six states with abortion-related measures on the 2024 ballot. Whereas most states have written amendments offering absolute protections for abortion rights or only allowing limitations late in the pregnancy, South Dakota’s proposed amendment is relatively uncommon in implementing a more complicated trimester framework detailing when abortion can and cannot be limited by state law. 

The South Dakota measure is an initiated constitutional amendment, which required just over 35,000 signatures in 2024 to get on the ballot. 

Many ballot initiatives require informed voters to familiarize themselves with details of fiscal policy and regulation that are not usually at the forefront of political debate and on which voters may not have strong opinions when walking into the voting booth. South Dakota’s Right to Abortion Initiative is just the opposite. Most voters nationwide already have pro-choice or pro-life views–often firmly held–and will vote on the measure according to those views. 

Unlike in most states where the protection of abortion rights has faced voters, South Dakotans of all views will have to weigh matters of pragmatism and compromise when considering the amendment in addition to the core values that often determine opinions on abortion. 

Pro-life South Dakotans largely oppose the amendment. While it goes much less far in protecting abortion rights than virtually any other state proposed state constitutional amendment, it would still represent a dramatic reversal of South Dakota’s near-total ban on abortion currently in place.   

For pro-choice South Dakotans, the obvious reason to support the amendment is a return from a virtually outright ban on abortion in the state to a framework intended to be similar to Roe. Against that, they must weigh the concerns of ACLU and Planned Parenthood advocates, who point to dangers in an amendment that would offer extra protection not only to abortion rights but afford similar protection to the right of the legislature to restrict abortion under some situations. 

These tensions underscore why the often complicated compromised frameworks common to legislation are not typically employed in constitutional amendments. Ideally, a change in state policy following such a model would be legislated and subsequently amended over time without constitutional concerns. But as in many other states, South Dakotans are expected to lean more pro-choice than their elected legislators, who passed the current ban in 2005. 

South Dakota will likely be a legal and political battleground for abortion rights for years to come, whether or not voters affirm the proposed amendment. 

The post South Dakota Amendment G would enshrine the right to abortion in state’s bill of rights appeared first on Reason Foundation.

The U.S. healthcare system is often criticized for its high costs, much of which are blamed on Big Pharma. In reality, pharmaceuticals account for only about 9% of total healthcare spending, yet Americans spend more than double the average per capita expenditure of other developed countries on prescription drugs.

The exorbitant prices that Americans pay for drugs relative to other countries are largely due to government policies that effectively subsidize other countries’ medications. Some policymakers see these high prices as a problem to fix, and they might be right. However, reducing prescription prices will inevitably reduce pharma profits, which will result in predictable and sometimes undesired tradeoffs.

Proponents of socialized medicine (e.g., government-funded universal healthcare) want America to embrace a system similar to that of Canada, Australia, and most European countries, which would increase government healthcare spending to broaden the size and scope of citizens’ medical coverage. However, the U.S. already outspends every other country on drugs on both an absolute and per capita basis, allowing its residents to consume the most and newest pharmaceuticals. Indeed, 65.2% of sales of new drugs released between 2013 and 2018 occurred in the United States, even though the U.S. only accounted for about 7.8% of world drug consumption in 2018. (Specifically, the U.S. consumed 225.4 billion defined daily doses out of the 2,876 billion consumed globally in that year.)

It is unclear whether this level of spending is necessary to foster innovation or whether it makes Americans healthier. Though pharmaceutical reform alone won’t fix America’s growing unfunded debt, simple adjustments could save taxpayers over $100 billion a year and force other countries to share the cost burden of innovation more equally.

Why Americans pay so much for drugs

The U.S. healthcare market subsidizes much of the world’s cutting-edge medical innovations, including a disproportionate amount of pharmaceutical developments. As a result, the socialized healthcare systems of other countries remain sustainable while their governments and taxpayers pay significantly less than they otherwise would for the same drugs consumed by Americans. This system also allows other countries to access drugs that likely wouldn’t exist if it weren’t for American-funded innovation. This status quo has helped make the U.S. a global leader in pharmaceutical development and innovation. However, given that 8 in 10 American adults believe that drugs are unreasonably expensive, stakeholders should consider how various reimbursement schemes affect the drug costs borne by patients and taxpayers.

Consider how the U.S. Medicaid and Medicare programs reimburse private insurers for drug purchases versus socialized healthcare systems in other countries. Under a true free market, patients or their insurers would privately negotiate prices with drug manufacturers to obtain drugs. Under socialized medical systems like the one in Australia, while private insurers purchase drugs through market-based price negotiations, the government programs often purchase drugs from manufacturers in bulk, using the fact that they are the primary buyer (a market condition known as monopsony) to negotiate lower prices. Public insurers often consider a range of market pricing data during negotiations to ensure the cost-effectiveness of their purchases, but there typically isn’t a rigid pricing formula that pharmaceutical companies can game. The U.S. Department of Veterans Affairs uses a similar model to purchase drugs for those it covers.

Conversely, the Centers for Medicare & Medicaid Services (CMS) in the U.S. are prohibited from negotiating prices directly with drug companies until the Inflation Reduction Act, which allows negotiations for a small but increasing number of drugs, takes effect in 2026. In most cases, Medicaid is legally required to pay the lowest price, Medicare Part B is required to pay the average sales price borne by the private market, and Medicare Part D subsidizes highly regulated private insurers to cover various prescription drugs.

According to the Government Accountability Office, since “federal prices are generally based on prices paid by nonfederal purchasers such as private health insurers, manufacturers would have to raise prices to those purchasers in order to raise the federal prices.” Indeed, since CMS is not allowed to negotiate down drug prices and instead pays prices pegged to what the American private market pays, pharmaceutical manufacturers have an incentive to raise the prices charged in the private market, even if this would result in fewer drugs being purchased in the private market and less profit from the private market for the manufacturers as a result.

Under a true free market, charging a price for private patients and insurers that is above the market price would not be a profit-maximizing strategy for pharmaceutical companies, since the quantity supplied and total revenue raised by drug sales would fall. However, under a quasi-public system that includes CMS, increasing prices above market rates can still be profit-maximizing because the reduced gains in the private market can be offset by CMS: Manufacturers receive the average and lowest private sales price for every drug that these government agencies purchase.

The Medicaid pricing model is especially perverse because it reduces the incentive for a drug company to offer a discount to any patient, especially patients with lower socioeconomic status, as this would automatically lower the price that the company would receive for every drug reimbursed by Medicaid. Since new pharmaceuticals are patent-protected, which establishes a monopoly, pharma would otherwise price-discriminate to the benefit of poorer consumers and the detriment of the wealthy. But under the status quo, pharma benefits from charging every American higher prices to preserve higher CMS reimbursements. Moreover, the larger the market-share proportion of a patent-protected drug that is reimbursed by CMS, the larger the incentive to inflate private prices above market rates.

Costs of a cure

For pharmaceutical manufacturers, the vast majority of their production costs come from navigating the expensive research and development and uncertain regulatory approval process for drugs, with actual manufacturing costs remaining relatively low. Drug patents confer an exclusive production license with a shelf life that allows developers and innovators to recoup research costs without fear that “free rider” manufacturers will simply copy their drugs and sell them at close to marginal production costs. This system maintains pharmaceutical companies’ incentive to invest vast sums of money into developing new cures amid current regulations.

It takes about 12 years, however, before a pharmaceutical company can begin recouping the R&D costs of a newly patented drug after initial discovery. Since a dollar of revenue in 12 years is worth less than a dollar of revenue earned today, future sales do not offset up-front R&D costs one-to-one. And given that the majority of pharmaceutical research projects won’t yield a commercially viable product, drug developers must also cover sunk costs from failed projects, using commercial returns from successful projects to justify funding future research. A 2018 Congressional Budget Office study found that a drug company must obtain a profit margin of 62.2% from products that succeed to allow for just a 4.8% return on all its assets overall. These costs have risen even further in recent years due to increased research costs and higher failure rates.

Expectations of future profits not only provide a reward incentive for innovative research and development (R&D), but also lower R&D financing costs for cash-strapped pharma firms. To cover the costs of R&D and regulatory approval, manufacturers must sell a large volume at prices well above marginal costs to either their public or private insurer customers. And since CMS cannot negotiate down prices on an exceptionally large volume of drugs they purchase, manufacturers expect to rely on it and its subsidiaries for disproportionately large sources of revenue to justify their R&D costs, thereby reducing the need for revenue from non-U.S. public insurers.

These gains from the U.S. market, which are disproportionately driven by government purchases, also provide companies with a greater incentive to research and develop drugs for the U.S. market. This has made the U.S. approval process the global leader in pharmaceutical innovation and home to more cutting-edge drugs and therapies that eventually reach the rest of the world. For instance, the Information Technology and Innovation Foundation (ITIF) reports that “[f]rom 2014 to 2018, U.S.-headquartered enterprises produced almost twice as many new chemical or biological entities as European ones, and nearly four times as many as Japan.”

The foundation also notes that “private research [into developing] new drugs in the United States [accounts for] a significantly higher percentage of GDP than in the rest of the world.” Even the next-highest investing countries, such as Japan, provide only a small fraction of U.S. investment in absolute terms. Other favorable factors, such as high federal government research investment, R&D tax credits, laws that better incentivize public-private pharma research projects, and a disproportionate share of the world’s top research universities, also benefit the U.S. However, pharmaceutical companies’ windfall gains from drug sales to the U.S. government remain significant.

In this way, the United States subsidizes socialized medicine for the world. For example, the U.S. public and private markets account for 70% of patented biopharmaceutical profits, despite only accounting for about 34% of GDP at purchasing power parity among Organisation for Economic Co-operation and Development countries. Therefore, it’s no surprise that the U.S. pharmaceutical industry allocates more of its profits toward R&D than other industries do. In 2014, pharmaceutical companies contributed about 43.8% of their total value added to R&D, a greater percentage than other high-value-added U.S. industries such as aerospace and electronics. Only the U.S. semiconductor and scientific research industries contribute a greater proportion of their sales toward R&D, which is not common in other countries.

Moreover, such economic activity is the consequence of unique profit opportunities in the U.S., but it comes at an equally unique high cost. Various policy interventions can be employed to reduce spending in the U.S., but each approach will reduce pharma profits in its way and, consequently, reduce global investment to find new cures.

Solution 1: Negotiation model

If CMS were allowed to negotiate drug purchase prices the way socialized systems in other countries do, even for just a small number of drugs, American taxpayers would save billions of dollars each year. CMS’s bargaining power as a monopsonistic bulk buyer is significantly greater than that of all other countries, so these cost savings are likely to be high. Simultaneously, Americans dependent on private insurance, such as that provided through employers, would also likely benefit from lower prices since the incentive to charge above-market prices to private insurers, to artificially boost the price of each drug purchased by CMS under the current system, would be eliminated. However, CMS’s price negotiations wouldn’t necessarily affect price negotiations with public insurers in other countries, since changes in U.S. pharma revenues don’t affect the profit-maximizing strategy for foreign buyers in their negotiations with pharma, all other things being equal.

Moreover, if CMS began negotiating down drug prices, pharmaceutical companies would have less funding to create new cures and bring them to market. One way to mitigate reductions in research funding would be to allow CMS to negotiate down prices for new drugs only after a certain number of years have elapsed. The Inflation Reduction Act’s CMS negotiation reform already utilizes a similar approach for some drugs. However, the world would still likely see less future revenue to incentivize pharmaceutical innovation. Foreign countries might respond by increasing their own research funding to service global demand that is no longer being subsidized by the United States. However, these new ventures would not fully account for the loss in worldwide pharmaceutical research investment caused by the decline in U.S. public purchases.

Conversely, as current levels of innovation would no longer be subsidized by the artificially inflated prices that pharmaceutical companies receive for drugs through CMS purchases under the status quo, pharmaceutical companies would shrink their research portfolios to prioritize the projects most likely to yield profits. Such projects would increasingly target the private insurance market, due to increased profits in this sector from lowering prices.

However, shifting a chunk of the burden of funding pharmaceutical research from the public healthcare market to the private insurer market could also mean less incentive to address issues that disproportionately affect Americans who are more likely to rely on CMS, including people who are poor and elderly. For example, we might expect less research investment in drugs that address illnesses that worsen with age—such as Alzheimer’s, arthritis, heart disease, type 2 diabetes, and many types of cancer—since these illnesses are more likely to affect CMS recipients than privately insured patients. However, shifting pharma’s focus to relatively younger, privately insured individuals might lead to healthier geriatric ages and reduce the need for investment in conditions that are the accumulation of chronic inflammation. Moreover, it’s not clear whether the superior R&D investment due to government subsidies makes the U.S. healthier.

Solution 2: “Most favored nations” model

An alternative to the negotiation model is the “most favored mations” (MFN) rule, which pegs CMS reimbursements to the prices paid by one or more foreign governments. The rule was first proposed under the Trump administration in 2018 but was later scrapped by the Biden administration. Like direct negotiations, the MFN model would lead to both taxpayers and private buyers in the U.S. paying less for prescription drugs, while pharmaceutical companies would be incentivized to charge higher prices to foreign public insurers. However, since these buyers cannot match the bulk purchasing power of the U.S., foreign reference prices would be lower than current CMS reimbursements that reference the U.S. private market, which would likely reduce pharma profits from both CMS and abroad.

Also, like direct negotiations, MFN would prevent pharma from artificially inflating private market prices in the U.S. and would shift the proportion of total innovation costs from the U.S. to other countries. Furthermore, since U.S. insurance companies will pay a lower price for drugs and thus theoretically buy a greater quantity than they currently do, private market demand and increased profit from this sector would replace some of pharma’s current research investment incentives from domestic and foreign government purchases.

One major problem with MFN is that it could reduce profit for pharma from foreign countries relative to price negotiations. If prices do inevitably increase to secure higher CMS reimbursements, foreign governments might reduce their purchasing volumes. Much like the status quo, when U.S. public insurers would purchase drugs under MFN, pharma would forgo higher profits from foreign public insurers by charging them above-market prices to secure higher rates of return from higher-volume CMS purchases. However, unlike private insurers, foreign public insurers operate under political pressure to secure medicines for their constituents. If the U.S. were to implement MFN, evolving political pressures might motivate foreign governments to purchase similar quantities despite price hikes on drugs.

Indeed, raising public debt, cutting other public expenditures, and raising taxes are easier tasks for foreign governments relative to private insurers charging higher premiums, since insurers’ customers may voluntarily stop purchasing their products. Under this scenario, pharma might increase its profits from some countries under MFN. However, if pharmaceutical companies were capable of charging foreign governments higher prices to increase profit, they would theoretically have done so already. Keep in mind that if foreign governments do substantially reduce the number of drugs they purchase, you may see more of their citizens turn to the private market to purchase drugs.

Considering the tradeoffs

When price negotiations and MFN were first proposed, they attracted substantial backlash from the pharmaceutical industry and even from some libertarian groups who argued that they amounted to “price controls” on drugs and would “import socialism.” However, these claims could not be further from the truth. Price controls are government intrusions into negotiations between private parties, not restrictions on the government’s spending. Under a free market, government entities ought to exercise good stewardship of taxpayer resources by behaving more like a private party by reducing the prices they pay. By increasing pricing pressure on countries with socialized medicine, price negotiations, and MFN wouldn’t import socialism—they would export capitalism by making the U.S. and other countries more reliant on their private markets.

However, the tradeoff of lower drug prices and a significantly lower drug bill for U.S. taxpayers, from either price negotiations or MFN, could lead to a long-term decline in new drug discovery due to less incentive for R&D. According to ITIF, mental illnesses alone impose a $1.5 trillion penalty on the U.S. GDP every year, highlighting the societal benefits that discovering new drugs might bring. For example, the Alzheimer’s Association claims that discovering a new drug for treating dementia by 2025 would lower treatment costs by a third while delaying its onset by five years. If true, these benefits may be delayed if new government purchasing models significantly reduce pharma revenue and profit margins from Alzheimer’s patients.

Basic economics suggests that Americans would be better off shifting their resources to industries they find valuable, versus policymakers trying to centrally plan incentives to bolster medical innovation. However, some studies find that the vast majority of social benefits provided by pharmaceutical research are not internalized or captured by profits from drug sales, even under the status quo.

Many other policies are worthy of attention when it comes to supporting medical research and thus incentivizing new drug discovery—for instance, reforming the patent process, reducing the costs of drug approvals, and eschewing recent government moves to “march in” and fix the prices for taxpayer-funded innovations in public-private partnerships. Regardless, the way that taxpayer-funded U.S. agencies pay for drugs has important implications for global and U.S. innovation, the sustainability of public budgets and debt, and the affordability of drugs.

Moving toward more market-based negotiations or MFN models would increase the per-dollar value of research investment by better aligning it with market demand while making drugs more affordable for Americans. However, these reforms would also reduce total funding available for research and could disincentivize research into new treatments affecting some of society’s most vulnerable individuals, especially the poor and elderly. The reforms may or may not be worth the consequences, but we shouldn’t ignore the tradeoffs altogether by insisting that the U.S. should embrace a European-style single-payer healthcare system. Their “free” healthcare is a myth—Americans are paying for it.

The post How America subsidizes medicine across the world appeared first on Reason Foundation.

A recent Reason Foundation report rates all 50 states’ telehealth policies and finds that Florida is among the top-rated states for adopting best practices. The state has broadly permissive laws and rules that don’t give preference to one mode of telehealth or category of provider over others, creating opportunities for future innovation. Florida’s strong performance is a testament to state lawmakers’ efforts in recent years to reduce or eliminate antiquated regulations that constrain innovation. 

A report from the Association of American Medical Colleges projects a nationwide shortage of between 17,800 and 48,000 primary care physicians by 2034. As reported, the shortage is likely to be especially acute in Florida because of the state’s rapidly growing and aging population. 

Eight million Floridians, roughly 35% of the state’s population, live in areas with primary care health professional shortages as designated by the U.S. Department of Health and Human Services (HHS). According to HHS estimates, Florida could need an additional 22,000 physicians by 2030 to meet patients’ needs. 

Florida’s embrace of health care innovation shines brightest when it comes to enabling telehealth services across state lines. In 2019, the state passed a first-in-the-nation law to allow health care practitioners licensed in other states to provide telehealth services in Florida without obtaining a Florida-specific license. Out-of-state providers can complete a simple registration process to verify they are licensed in good standing in another state and create mechanisms for addressing misconduct. According to a recent Cicero Institute report, more than 7,000 out-of-state practitioners, including nearly 3,000 physicians, registered to provide telehealth services in Florida during the 2021-2022 fiscal year. 

The only area where Florida fails to achieve top marks in the report is in allowing nurse practitioners to practice to the full extent of their education and training. Nurse practitioners are highly trained professionals capable of providing much of the well-patient care traditionally provided by physicians. Florida’s nurse practitioner workforce is expected to nearly double by 2035 and could help make up for the anticipated physician shortage. 

Following reforms in 2020, nurse practitioners in Florida are allowed to practice and prescribe medications independently, but only after accumulating 3,000 hours of clinical practice under the supervision of a physician and some additional graduate-level education. Florida’s approach can be seen as reasonable and not excessively burdensome, but other states allow nurse practitioners to practice independently without these requirements. 

While Florida has made great strides toward embracing telehealth and leveraging the nurse practitioner workforce, the state is also expected to experience a shortage of dental care providers. 

More than seven million Floridians live in HHS-designated dental health professional shortage areas. Florida needs an additional 1,536 dental care practitioners to offset the current shortage, according to HHS. Two bills working their way through the Florida legislature, Senate Bill 1254 and House Bill 1173, offer innovative solutions to current and future dental care shortages. 

First, the bills would recognize dental therapists as a new category of licensed, mid-level dental care practitioners. Beginning with Alaska in 2005, 14 states have recognized dental therapists. Analysis by the James Madison Institute from these states finds that integrating dental therapists into the dental care workforce could contribute to reduced wait and travel times, cost savings, and improved patient satisfaction. 

Much like the role of nurse practitioners, dental therapists could alleviate some of the strain on Florida’s dental care workforce by providing services that don’t require the unique expertise of a dentist. Unlike nurse practitioners, dental therapists cannot practice independently. The current proposals would instead require that dental therapists be supervised under a collaborative agreement with a Florida-licensed dentist. 

Second, the proposed legislation would allow Medicaid reimbursement for dental services provided by mobile dental units through programs targeted at underserved populations. 

Florida has made great strides in telehealth and health care, but there is certainly room for even more policy reform this legislative session.

A version of this commentary first appeared in the Sarasota Observer.

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In 2023, state legislative progress on reforming telehealth laws stalled, with a few exceptions. Even as many public health emergency declarations for COVID-19 expired in 2023, state legislation did not keep pace with the momentum to maintain the greatest flexibilities granted under those declarations.

Three states (Idaho, Louisiana, and Utah) deserve special recognition for the largest telehealth policy updates passed in 2023. Other states should take notice and copy their reforms.

This is the third annual 50-state telehealth innovation report card that captures innovation-minded telehealth policy changes that took place this past year. At the 30,000-foot level, the telehealth policy reforms that did pass in 2023 can be characterized as largely tweaking around the edges. Many of the telehealth bills filed around the country fell into the familiar areas pushed by special interests to mandate coverage of certain services or mandating certain payment levels. Few bills focused on making the telehealth landscape flexible enough to allow for innovation.

While news stories of average Americans highlighted the many cost and access challenges that patients routinely face to receive care, most states failed to move the needle on telehealth reform to ease some of that tension. Most patients still lack electronic access to providers outside of their state, even if there are few or no providers of a specific type near them. If we did this for pilots, almost no one could access or afford an airplane ticket. Yet that has been our approach for medical providers.

A new study released in early 2023, “Few Disciplinary Issues with Out-of-State Telehealth: New Data from Florida and Idaho,” co-authored by one of this report’s co-authors and Dr. Ateev Mehrotra of Harvard Medical School found that providers are increasingly interested in offering their expertise to patients in states that allow such a framework, and there had been no disciplinary action taken against those providers over hundreds of thousands of visits. Yet only Louisiana and Utah made moves in 2023 towards opening up these options, with Idaho doing so for behavioral health.

There was some movement on compacts that can impact telehealth access, but compacts are not the most flexible. Two states (Hawaii and Missouri) joined the Interstate Medical Licensure Compact. Indiana joined the counseling compact, and Louisiana joined the occupational therapy compact. Yet compacts only apply to one kind of provider, only apply among mutual compact states, and have faced criticism for still being slow to approve across-state line access and include a decent cost to do so.

This toolkit is designed to guide policymakers in advancing a healthcare system that prioritizes quality, affordability, and innovation. Its primary goal is to assist state governments in revising telehealth laws to eliminate historical barriers that have disproportionately affected certain individuals in specific regions.

The following report outlines policy best practices to optimize the benefits of telehealth services for providers and patients. Additionally, it includes a straightforward stoplight rating system for each state, indicating the alignment of their policies with the identified best practices. The appendix offers specific changes that are needed in each state to improve its rankings.

Urgent action is imperative for states to meet the physical and economic needs of their residents through a forward-thinking and quality-oriented healthcare system.

See the full report here:

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The COVID-19 pandemic disrupted the status quo in healthcare. As we recover, lawmakers now have an opportunity to learn from our mistakes and triumphs to chart a new course. Among the most notable changes in care delivery brought about by the pandemic is the rise of telehealth. Yet as we update this report to reflect actions taken in 2022, it is hard not to notice that states have shown a surprising lack of urgency in making comprehensive updates to their telehealth laws.

While telehealth services were available long before the pandemic, millions of Americans used telehealth for the first time over the past three years. The rapid adoption of telehealth technology was enabled by emergency regulatory reforms undertaken at the federal and state levels. For example, federal officials made select changes to the Medicare program, and governors in nearly all 50 states advanced access with flexible provider licensure for new telehealth uses by executive order.

However, most of the emergency actions taken early on in the pandemic were only temporary. When state public health emergency declarations ended, and executive orders were withdrawn, many of the new flexibilities were lost. While some states recognized the benefits of regulatory flexibility and have adopted permanent reforms, a surprising number have only made minor tweaks to their laws, and most only benefit one kind of service or provider.

States must continue to refocus their efforts to ensure clear laws and guidelines are in place for innovation to emerge so that patients and providers can benefit from this helpful tool in any care delivery toolbox. Immediate action will be needed to avoid disrupting patient access to providers they gained during COVID, as other options may not exist in their community. For many patients, cutting off remote access to care is the difference between them receiving care in this manner versus no care at all.

There are four key areas where states have an opportunity to unleash innovation and embrace the potential of telehealth for expanding patient access to high-quality care:

1. Patients Can Access all Forms of Telehealth: State laws and regulations should define telehealth in broad terms that do not favor one mode of telehealth over others or preclude future innovation in care delivery. This is called modality neutrality.
2. Patients Can Start a Telehealth Relationship by Any Mode: State laws and regulations should not prohibit patients from initiating a relationship with a telehealth provider via their preferred modality.
3. Patients Face No Barriers to Across-State Line Telehealth: State laws and regulations should not prevent patients from accessing virtual care from providers licensed in other states.
4. Patients Can See Many Kinds of Providers Over Telehealth: State laws and regulations should allow providers to practice at the top of their license to take the next step toward a more quality-oriented, affordable, and innovative health system.

This report examines all 50 states in these four key areas.

This report does not cover all telehealth-related policy changes in 2022. For example, it ignores actions taken in states to expand or adopt compacts. Many of these smaller changes are not highlighted because they have severe limits, or only tweak around the edges.

By contrast, adopting this state policy agenda for telehealth innovation would remove deleterious barriers that have historically discriminated against those in certain geographies, such as rural communities or underserved urban areas.

The post State policy agenda for telehealth innovation appeared first on Reason Foundation.

California’s Proposition 1 would add an amendment to the state constitution (Section 1.1, Article 1) prohibiting the state from interfering “with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”

The amendment was drafted and passed by both houses of California’s state legislature in response to the U.S. Supreme Court’s May 2022 Dobbs v. Jackson Women’s Health Clinic decision overturning Roe vs. Wade and other precedents. The ballot initiative must pass with a two-thirds majority to be added to the state constitution.

Fiscal Impact

The California Legislative Analyst’s Office found that Proposition 1 would have no fiscal impact because California’s law already provides these rights. Critics and opponents of the amendment as drafted have proposed scenarios in which adding this right to the state constitution would cost the state more due to litigation, potentially broader interpretations of abortion rights than exist by current law, and the provision of abortions to patients from other states. No estimates of these costs have been circulated, and we discuss such scenarios.

Arguments in Favor

Arguments in favor of the amendment come from advocates of abortion rights and are targeted to the majority of California residents that polls show favor abortion rights and oppose the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Clinic decision. Most of the state’s prominent Democrats, including Gov. Gavin Newsom and majority leaders in the state legislature, have endorsed the amendment, along with groups such as Planned Parenthood Affiliates of California, The League of Women Voters of California, and the California Medical Association.

Proponents argue that while abortion rights are already a part of California law, enshrining them in the state constitution would add another layer of protection. State Assembly Speaker Anthony Rendon’s endorsement is representative of almost all California Democratic officials: “We know from history that abortion bans don’t end abortion. They only outlaw safe abortions. We must preserve the fundamental reproductive rights of women here in California because they are under attack elsewhere.”

While the political nature of the short and simply worded amendment is often used by opponents to dismiss it, many endorsements and op-eds favoring the amendment also suggest Proposition 1 appeals to the state’s majority voters on political grounds. Gov. Newsom says, “California will not sit on the sidelines as unprecedented attacks on the fundamental right to choose endanger women across the country.”

Arguments Against

Arguments against Proposition 1 fall into two distinct categories. The first are straightforward arguments by those who oppose abortion. The California Republican Party, California Conference of Catholic Bishops, and prominent pro-life groups oppose the amendment on grounds familiar to the debate about abortion that has unfolded over several decades.

The second category of arguments against Prop. 1 are best characterized as pragmatic arguments targeted to pro-choice voters. They begin by arguing the amendment will be of limited benefit, as California law already protects abortion rights, and express concerns that adding these protections to the state constitution could entail additional costs and, potentially, new lines of attack on, or risks to, Californians’ abortion rights.

Of particular concern to these pragmatic opponents of Prop. 1 is the very simple wording of the amendment, which some fear could be interpreted by California’s courts as enshrining a broader right to abortion than California, as well as now-overturned precedent in Roe v. Wade, allow. California’s current law places limits on abortion at the point of fetal viability, whereas the wording of the proposed amendment simply refers to the “fundamental right to choose to have an abortion.” 

If state courts were to hear a case and rule that the new amendment enshrines a right to all abortions, late-term abortions could be legalized in California. This could be of concern to generally pro-choice California voters, opponents of the amendment argue, for several reasons. First, many who support abortion rights generally may not support late-term abortions. In a San Francisco Chronicle column, Joe Matthew notes recent polling indicating that 70 percent of Californians oppose late-term abortion, numbers almost as high as Californians’ supporting abortion rights earlier in a woman’s pregnancy.

A June 2022 article by legal scholars Allison MacBeth and Elizabeth Bernal urged top-ranking state Democrats to add technical language to the amendment referencing past national legal doctrine—specifically “Griswold v. Connecticut, Roe v. Wade, or Planned Parenthood v. Casey.” The authors argue that citing earlier precedent would effectively limit late-term abortions, while not clarifying the language of the amendment could create a new way for abortion opponents to mount a challenge in federal courts.

The authors of the official argument against Prop. 1 also express concern about California becoming a “’sanctuary state’ for thousands, possibly millions of abortion seekers from other states, at a staggering cost to taxpayers.”

Discussion

Many ballot initiatives in California and other states require the informed voter to familiarize themselves with details of fiscal policy and regulation that are not usually at the forefront of political debate, and on which voters may not have strong opinions when walking into the voting booth. California’s Proposition 1 is just the opposite.

Almost all American voters are familiar with this issue, and most Californians will vote according to whether they believe it should be legal for a woman to get an abortion. Recent polling confirms that a majority of Californians consider themselves pro-choice and that, as of this writing, Prop. 1 seems very likely to pass. California’s pro-life voters are likely to vote against Prop. 1 in overwhelming numbers.

California’s pro-choice voters must decide if there are costs or risks to enshrining the language of the proposed amendment in their constitution. The benefits, from a pro-choice perspective, are the reduced risk of a future state judiciary overturning abortion rights, as well as the political benefits pro-choice voters attach to this contentious issue. While quantifying these benefits is not possible, pro-choice voters must weigh them against the costs laid out by those favoring abortion rights but no constitutional amendment.

It is plausible if not likely that the amendment will create new ground for legal maneuvering and political engagement for pro-life activists in California and nationwide. However, those arguing this point broadly undercut the foundations of the argument that pro-choice voters should not support the amendment—that Californians’ abortion rights are already safe. Pro-choice arguments against the amendment appear to simply ignore that political and legal resistance will continue in the absence of an amendment as well as if it is passed. California is already a political and legal lightning rod for this contentious issue. If we can learn one thing from this seemingly circular argument, it is that activists, lawyers, and energized voters on both sides of the issue will find a way to keep these battles alive not just in California but in all 50 states.

The specific concern about the amendment’s language possibly being flawed is potentially of more concern to pro-choice voters. Opening up new battlegrounds on the particularly hot-button issue of late-term abortions could very likely complicate matters in the future. Citing legal precedents as Allison MacBeth and Elizabeth Bernal proposed may have foreclosed that possibility. Instead, California’s top Democrats and pro-choice groups appear to have opted instead for a simple statement of purpose.

A more carefully worded amendment may have served the dual purpose of preventing legal battles in state court (with the amendment itself) as well as federal courts (with the more precise language). But once again, the idea that either side would simply give up in any scenario, especially in the nation’s largest and most progressive state, is not credible. With future political and legal battles almost guaranteed no matter the amendment’s fate, pro-choice voters may simply value the statement in itself.

Voters’ guides for other propositions on California’s 2022 ballot.

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Many people are born with or develop very serious medical problems that threaten to shorten their lives or severely reduce their quality of life. This tragedy can be avoided or ameliorated with innovative pharmaceutical treatments. Simply put, pharmaceuticals can help people lead happier, longer, and more productive lives. But pharmaceutical innovation in the United States has slowed in recent decades while pharmaceutical costs have skyrocketed, placing many vulnerable individuals beyond the hope of receiving life-changing drugs.

Between the 1970s and 2000s, the average cost of bringing a new pharmaceutical to market increased by an order of magnitude, even after adjusting for inflation. This has occurred over the same period that major technological breakthroughs have been made in the fields of computer processing, telecommunications, engineering, and even the practice of medicine more broadly. Indeed, most U.S. industries have been able to create innovative new products and push down costs since the mid-20th century.

So why has pharmaceutical development become slower and more costly? After all, big screen panel televisions are nice but not nearly as critical as health and life itself.

The U.S. government clearly understands how important pharmaceutical development and innovation are. Congress has established and financed a vast bureaucracy to oversee pharmaceutical development and passed many laws intended to spur innovation and reduce costs. Yet, it seems the more efforts Congress makes, the higher prices climb and the slower innovation becomes, imposing negative consequences on both the quantity and quality of human life. Many observers find this result understandably frustrating.

What if the way we choose to regulate pharmaceutical development contributes to these frustrating results?

Most industrialized nations have created national or supranational regulatory authorities to oversee pharmaceutical development, but not all work the same way. Comparing the U.S. Food and Drug Administration (FDA)—the agency with primary responsibility for regulating pharmaceuticals—with corresponding agencies in other countries offers key insights.

Even comparing today’s FDA to the FDA at different points in time reveals how the agency’s regulatory apparatus and relationship with industry have evolved, often with consequences for the health of private individuals. From these insights, it is possible to imagine different methods of pharmaceutical regulation that would better serve society’s needs by encouraging widespread availability of life-saving drugs at prices individuals can better afford.

This brief reviews the regulatory apparatus governing pharmaceutical development in the United States.

Part 1 examines the historical cost trends—for both time and money—of bringing an approved pharmaceutical to market.

Part 2 examines the effect of pharmaceutical regulation on human life and considers both the benefits and costs of that regulation on Americans’ health.

Part 3 explains the basic regulatory process for pharmaceutical development and examines key policy issues and economic trends that influence pharmaceutical development.

Part 4 highlights emerging special topics in pharmaceutical regulation, such as medical research into the cannabis plant and its derivatives, and the FDA’s growing scope of powers, including previous attempts to regulate common food items.

Part 5 concludes with recommendations for how best to reform the FDA’s mission to achieve the broad public goal of improving the lives and health of all Americans.

Full Brief — Focus on the FDA: Allowing the Market to Determine Effectiveness

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“Nothing epitomizes market failures more than the cost of insulin. Many Americans experience out-of-pocket costs anywhere from $300 to $500 per month for this life-saving drug,” Gov. Gavin Newsom remarked when announcing the passage of the insulin plan. “California is now taking matters into our own hands.”

While it is very unfortunate that Americans pay high prices for lifesaving insulin, high insulin prices are caused by a maze of regulation, bureaucracy, and pharmacy benefit managers that drive up the costs. While California’s efforts are well-intentioned, high insulin prices would be better addressed by regulatory reform and private initiative rather than a government-run program administered by a state with a dubious track record of competence and efficiency.

Evidence that the private sector can produce affordable insulin is available just south of the border. In Mexico, insulin prices are about one-sixth of those in the United States for a variety of reasons. Some Americans cross the border to take advantage of the lower costs. While it is illegal to import prescription drugs to the United States, the federal government generally does not enforce the prohibition for personal importation of up to a three-month supply of most medicines. But making regular trips to Mexico isn’t a sustainable solution for most California insulin users.

One problem in the United States is a lack of competition arising from patent protection for insulin delivery devices and barriers to getting approval for biosimilar products. There is some promise on the latter front as the Food and Drug Administration approved two biosimilars in 2021.

But additional reforms will likely be needed to bring US insulin prices down to international levels. Writing in Mayo Clinic Proceedings in 2020, the Mayo Clinic’s Dr. Vincent Rajkumar recommended that the United States participate in a reciprocal approval process with Canada and Western European countries. If a drug regulator in one of those nations approves a new insulin treatment, it could also be sold in the United States.

Further, Rajkumar recommended limiting the length of initial patents and preventing the use of additional patents on a single drug to extend market exclusivity. Although generous patent protection is defended as a means of encouraging innovation, incremental changes in how insulin is produced or delivered may not merit long exclusivity periods.

Costs could also be reduced if patients could obtain newer insulin formulations without a prescription. Early insulin formulations are still available on a non-prescription basis, having been grandfathered in before the Food and Drug Administration acquired the authority to classify new drugs as prescription-only. Although non-prescription insulin accounts for a small portion of the market, its availability without publicized safety incidents likely suggests that all insulin formulations could be safely dispensed without a prescription.

Some price relief might also come from disruptive new market entrants such as Civica RX, a nonprofit generic drug company that plans to sell insulin for $30 per vial. Civica was founded in 2018 with the support of major health systems, including the Mayo Clinic, and large philanthropies (one of which also supports my employer, Reason Foundation). Nonprofits that prioritize delivering social benefits over net income can reasonably be considered a market response since they address consumer needs without the coercion and top-down thinking that characterizes government interventions.

For-profit companies can also address the high price of insulin. Mark Cuban’s Cost Plus Drug Company is offering prescription drugs at steep discounts by selling direct to consumers, eliminating markups imposed by pharmacy benefit managers and other middlemen. Cuban’s company appears to be working on adding insulin to its low-cost generic drug offerings.

Meanwhile, the same state government considering entering the complex pharmaceutical industry is struggling with basics, like upgrading its own computers and information technology systems. Rather than take a state-driven insulin approach, California could more effectively bring down insulin prices by importing it or purchasing it from new entrants like Civica RX and Cuban’s company.

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We might expect to find one or more interest groups guarding economic and political power while everyone else in the industry is squeezed, but child care has no clear suspects. Unlike big tech or big pharma, there is no group of ‘big child care’ companies setting high prices or leveraging the power to get government regulation to stifle small startups because there’s not enough money in it. There is no workers’ union resisting change. While current regulation is overly complicated, costly, and burdensome, there is no bureaucracy whose power and jobs stem from the status quo.

The White House made child care a marquee item in its Build Back Better plan at a projected cost of over $200 billion. President Joe Biden’s proposal focuses primarily on subsidizing existing licensed child care options for low- and middle-income households and subsidizing providers in areas where supply is too low.

Debates over big-ticket plans like the Build Back Better proposal often force us into familiar political tribes, crowding out fresh thinking and innovative ideas on a small scale. However, a more detailed look at the many tradeoffs young parents face and the many arrangements they make to care for their young children shows how critical informal arrangements are and how daycare is the right option only for some people some of the time. By engaging local communities and research across multiple fields, there is scope to facilitate more access to this informal sector that should interest both sides of the Build Back Better debate.

Parents prioritize the basic care of young children above virtually anything else. Maintaining a safe, positive, well-monitored environment around the clock for infants and toddlers, and to a lesser, but still significant, degree, for older children is not a matter of if, but how. We often bundle this necessity in our definition of child care with other vital services such as early-childhood education, but the distinction is important. What many call America’s child care crisis is not a crisis of children not receiving essential care but rather what must be sacrificed to provide it.

Care, especially for the youngest children, must be provided 24 hours per day by one or both parents at home, or children need to be sent to daycare or placed in the care of others—often family members, close friends, and neighbors. The latter category is often called the informal sector of childcare, which is a part of the problem often lost in policy debates, but just as prominent for all parents as daycare.

When they are fortunate enough to have the suitable options, parents often choose “informal” care over a daycare center. An illustrative example is Sen. Elizabeth Warren, herself the author of a childcare plan for her 2020 presidential campaign that was similar to the Build Back Better plan being pushed by the Biden administration.

Before detailing her plan, Sen. Warren told a personal story of struggling to find adequate and affordable care for her young children while starting as a law professor. At her wits’ end, she called her aunt, unsure of what to do. Warren says:

Then Aunt Bee said eleven words that changed my life forever: “I can’t get there tomorrow, but I can come on Thursday.” Two days later, she arrived at the airport with seven suitcases and a Pekingese named Buddy — and stayed for 16 years.

Warren’s dilemma is one to which many young parents likely relate, whether starting promising careers or simply needing work to make ends meet. And while Warren may have been unusually lucky, the importance of one’s close social ties—family and friends—in caring for children while balancing life’s other demands is quite common.

Ensuring basic care for children can cause not just parents but other close relatives and friends to reshuffle their major life decisions, further underscoring the paramount importance modern society places on caring for young children. Warren and those personally close to her were prosperous and stable enough to shift resources such that a young mother didn’t have to choose between her children’s well-being and her career.

Not everyone is so fortunate. Families and close friends in poorer communities put similar importance on helping young parents care for children, but the help provided either by a single family member or many people chipping in is more likely to entail sacrificing other near-essential activities. Missed days of work and lost opportunities for education and career development become more likely in groups where those sacrifices hurt the most, further entrenching people in poverty.

Close social bonds also often come with trust and intimacy between parent and caregiver that arm’s-length daycare centers cannot match. Familiar relationships allow richer assessments of quality and safety than rules written down by a center or its regulators. Parents often seek to mimic these relationships even in informal childcare arrangements where they don’t already know the person well. Live-in nannies effectively become part of a family, and parents are more likely to trust neighbors’ children to babysit at a younger age than a babysitter they do not know.

Center-based care and arrangements built on close personal ties are imperfect substitutes. Some informal arrangements, as well as parents staying home, have uniquely desirable attributes. While this fact alone does not preclude center-based care as a viable model, the competition daycare centers face from these many arrangements plays a part in explaining the strained business model center-based providers face.

Many other goods and services historically produced in the home are now mostly supplied in the market. But child care, especially basic care for young children, lacks significant economies of scale. Few services are more labor-intensive.

Whether one agrees with the caregiver-child ratios that states impose on child care centers, there are only so many one-year-olds who can be put in a room and effectively monitored without needing more help. There is also little scope for center-based providers to invest and differentiate themselves.

Over-regulation of licensed child care is one symptom of this “trust gap.” Without the understanding naturally found in close personal relationships, busy families need to be able to find information to help them verify the quality and safety of potential center-based providers. If federal and state governments didn’t create these rules by edict, market forces would likely induce providers to develop them in some form.

Such rules might better reflect what some parents want, especially when the rules are allowed to meaningfully vary across providers. But they would still be rules on a piece of paper, inevitably falling short of the level of comfort parents find in child care from people they know. High prices and low-profit margins at daycare centers are a difficult stalemate to break.

The graph below presents two critical insights:

Percentage of U.S. children participating in center-based child care by family income:

The original chart, reprinted from Equitable Growth, is titled, “Low-income children disproportionately miss out on center-based care.” This disparity is significant and almost certainly driven by high costs.

The chart’s high-income results are equally informative because high costs are not the only thing keeping Americans from putting their kids in daycare centers. Informal arrangements, big and small, appear to play a significant role in the childcare decisions of all parents.

Center-based child care sometimes fits some families’ needs, and affordability is but one of several factors limiting the viability of this model. The White House’s $225 billion plan in the Build Back Better proposal primarily focuses on helping parents pay for expensive center-based care. The subsidy fully covers daycare costs for low-income families and gradually phases out up to 2.5 times a state’s median income. The remaining child care money in the plan is mainly set aside for more subsidies–payments to providers to address supply issues in neighborhoods judged to be underserved.

Nowhere does the plan claim to realize cost savings, as “Medicare For All” proponents often promise. Nowhere does the plan promise to create higher quality child care than the often-useful but inherently limited center-based model. The only major change to the licensed center-based model that President Biden and Sen. Warren call for is higher pay and educational requirements for center workers, which is almost sure to increase costs for families and force some very qualified child care workers out of jobs.

Large federal spending on center-based and other licensed daycare will not solve the childcare crisis. Informal childcare is just as important to many parents and has some benefits that centers cannot replicate—which the data on income and center usage confirm.

The best way to facilitate relationship-based care in poor communities would be to ease people’s overall financial strain. Giving parents more-flexible help to find what works for them in the market or from family and personal connections will reliably lead to better outcomes than the government prescribing a few subsidized options.

As of this writing, the Biden administration is trying to keep its big-ticket child care plan on the table rather than getting the 2021 child tax credit, which expired, reinstated. The child tax credit was a help to low-income families, so rather than moving the child care policy in the right direction, the president’s plan is likely doubling down on the wrong one.

Searching for a magic-bullet national policy to strengthen informal care is tempting, but finding a way for a bureaucracy to avoid turning the unique benefits of personal relationships into costly top-down regulation is unlikely. In this case, national or state policy may not be the best way for civil society to contribute its resources and energy. But the informal sector is at least as large and important to parents as a daycare, and its results strain low-income parents disproportionately.

On a small scale, there are many promising ideas and the scope to implement and develop many more. For example, a southeast Detroit pilot program finds promising results from making educational, advisory, and problem-solving resources available to informal child care providers. The providers self-report that the biggest benefits stemmed from activities where they were put into groups and could interact informally rather than simply receiving instruction.

Another recent study shows opportunities to build social capital across informal networks of parents and providers and finds that single mothers plugged into these networks have an easier time returning to work than mothers using daycare centers.

The fundamentally bottom-up nature of this change, the very thing that makes it promising for new ideas bridging old partisan gaps, also creates big challenges in policy terms. Encouraging informal child care networks, advising non-profits on best practices and innovations, and presenting these informal networks as an often-desirable alternative to daycare is challenging in today’s political environment and difficult to scale at the state and national level.

While the significant taxpayer investments subsidizing both parents and providers of center-based care are an essential topic for public debate, the focus on the largest ticket items can distract policymakers and stakeholders from many important small ideas and improvements that could be made. And those policies will continue to be needed, whether some form of Biden’s Build Back Better plan passes or not.

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Millions of Americans tried telehealth for the first time during the COVID-19 pandemic. Federal officials made select changes to the Medicare program and governors advanced health access with flexible provider licensure for new uses of telehealth by waiving certain barriers by executive order. All of these changes garnered numerous headlines, and many state legislatures followed suit by updating their laws.

But once the public health emergency declarations started to end or executive orders were withdrawn, overnight or shortly after, many of the new flexibilities were lost. Furthermore, even though many states passed new laws related to telehealth, many of them made incremental changes because policymakers lacked a best practices roadmap for success.

While they cannot and should not replace all in-person medical appointments, virtual visits can save patients time and help them avoid germ-filled waiting rooms. Providers can also cut down on their risk of exposure and take some pressure off overburdened systems as they can see patients from an office or home. To experience the full potential of telehealth, states should follow these best practices.

This toolkit aims to help policymakers take the next step toward a more quality-oriented, affordable, and innovative health system by ensuring that their state laws on telehealth remove deleterious barriers that have historically discriminated against those in certain geographies, such as those living in rural communities or in underserved urban areas. This report explains policy best practices for ensuring that providers and patients can fully realize the benefits of using telehealth services when appropriate and provides a simple-to-read stoplight rating for each state on how closely their policies align with those best practices. The state profiles point state lawmakers to specific sections of law and regulation that need to change to improve their ranking.

States need to act now to ensure the physical and economic needs of their state are met with a more quality and future-oriented health system.

Full Report: Rating States on Telehealth Best Practices

State Policy Agenda for Telehealth Innovation

Previous Jan. 5, 2022 Version of this Report: Rating the States on Telehealth Best Practices

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In an executive order helping make telehealth services more accessible for Californians by relaxing security and privacy requirements for health care providers, Gov. Gavin Newsom highlighted the problems, “I find strict compliance with various statutes, regulations, and certain local ordinances specified or referenced herein would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.”

Gov. Newsom is right, but his executive actions reducing some of the barriers preventing patients from using telehealth services are temporary and need to be made permanent. A new Reason Foundation report that rates each state’s telehealth policies according to a set of best practices for promoting patient access and flexibility for providers finds California has plenty of room for improvement.

For example, California currently requires out-of-state health care professionals to hold a California license to provide telehealth services in the state. In other words, Californians don’t have access to specialists in other states unless they are willing to travel to that specialist’s location or that specialist is able to—and wants to—undergo the burdensome process to obtain an additional license from California. This bureaucratic hurdle undermines one of the principal benefits of telehealth: the ability for patients to access care regardless of their physical location.

These types of archaic state-by-state licensing schemes don’t make sense in the context of telehealth. Some states, like Texas, Colorado, and Utah, have tried to promote the use of telehealth across state lines by agreeing to multi-state licensure compacts, which make it easier for professionals in member states to receive licensure in other member states that are part of the compact. However, California hasn’t joined any multi-state licensure compacts.

Florida and Arizona have identified an even better approach for enabling cross-state telehealth services. Both states have created a simple telehealth registration process for out-of-state health care providers. To register, a provider must only submit proof that they are licensed to practice in another state. This system is superior to multi-state compacts because it does not require action on the part of other states.

The telehealth study also notes California mandates that insurers cover and reimburse telehealth services in the same manner as in-person care. These mandates are intended to promote the adoption of telehealth, but ignore some of its key differences and benefits. Telehealth has the potential to provide on-demand health care services without the administrative and overhead costs associated with in-person care in California. These differences in costs mean that many telehealth services have the chance to save patients money and thus shouldn’t always be reimbursed at the same rate as in-person services. Moreover, telehealth is still an evolving field and technology, and the state should avoid forcing telehealth into the same rules of the complex, outdated health care system that everyone agrees isn’t working. The best way to promote telehealth improvements is to maximize flexibility and choice for patients and providers.

On the positive side, in the early months of the COVID-19 pandemic, California passed a law that allows nurse practitioners to practice via telehealth to the full extent of their education and training after three years of practice. According to a report from California Health Care Foundation, the share of California health care providers using telehealth increased from 30 percent before the pandemic to 79 percent by September 2020. A Blue Shield of California/Harris Poll of Californians conducted in February 2021 found that 49 percent of respondents had already had telehealth visits during the pandemic and 89 percent were satisfied with the services. Polling also consistently shows that patients remain likely to use telehealth services in the future.

Telehealth cannot, and should not, replace all in-person health care services. But there are plenty of times where telehealth is the best option and California should ensure its telehealth laws do not prevent new technologies and services from advancing and serving patients. Getting rid of arbitrary barriers and enabling cross-state telehealth licensing would help Californians now and in the long run.

A version of this column previously appeared in the Los Angeles Daily News.

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With debates about the constitutionality of President Joe Biden’s move, threats of lawsuits flying before the rule has been drafted, and many citizens questioning the federal government’s overreach, it is important to note that what’s happening now looks similar in some ways to the big government playbook laid down by the South Coast Air Quality Management District (SCAQMD) in Southern California back in 1990. The district, as friends and enemies called it, was ground zero for aggressively expansive government public health regulations in Southern California.

In the halcyon days of the late-1980s and early-1990s, California had severe problems with ambient air pollution and traffic congestion. Although a vast swath of industries had been forced to reduce their air pollution emissions (or leave California entirely) in order to combat the menace, one last stubborn source of emissions remained: the dreaded, selfish, “single-occupant vehicle” drivers who would drive by themselves in their very own cars over California’s gridlocked freeways to get to and from work. About 70 percent of total emissions in the South Coast Air Basin at the time came from “mobile sources,” mainly cars and light trucks, and that percentage was rising. At the time, it was estimated that by 2010 mobile sources would contribute 95 percent of carbon monoxide emissions, 80 percent of oxides of nitrogen (an ozone precursor chemical in vehicle emissions), and 40 percent of what were then called “reactive organic gases” — the photochemical smog that covered the Los Angeles skyline at the time.

The dreaded drivers and rideshare-resisters were deemed a sufficient evil that SCAQMD issued a rule to require employers with over 100 employees to find ways to discourage solo-commuters and encourage their employees to carpool, vanpool, or take mass transit to and from work instead. In some ways, it’s similar to the approach that the Biden administration is taking to force the vaccine-resistant into the vaccinated carpool lane.

In 1988, the SCAQMD developed Rule 1501 which required large employers (of over 100 employees) to increase the average vehicle ridership (AVR) of their employees to 30%, 50%, or 75% depending on such things as transit availability in their regions, and the district’s expectations about their ability to achieve such targets. The average vehicle ridership at the time was 1.13, or basically, one person per vehicle. To give you a flavor of the rule’s specificity, the first version of Rule 1501 called for: 

“…employers with 100 or more employees to develop and implement a trip reduction plan for those employees who report to work between 6:00 a.m. and 10:00 a.m. These employers would be required to designate a trained transportation coordinator to develop and implement the trip reduction plan. This plan would include an inventory of current measures used by the employer to increase AVR, a verifiable estimate of the current AVR at the worksite, and a list of incentives the employer would commit to undertake which could reasonably be expected to achieve the AVR target within 12 months of plan approval.”

The requirements of Rule 1501 grew more stringent over time, ultimately requiring the region’s employers, specifically via the personal authority and certification of the company’s executive officer— to submit complex, rigidly standardized rideshare plans to SCAQMD. (We’re talking about full, four-inch binders with prescribed color-coded tabs and a signed letter by the company CEO.) The requirements also included submitting the results of a week-long ridership survey of employees (to be conducted every six months) that met a district-specified 75-percent-response rate from employees who commuted in the previously mentioned time slot.

As two of my doctoral advisors, the University of California-Los Angeles’ Martin Wachs and the University of Southern California’s Genevieve Giuliano, demonstrated, the onerous rules created a new job description of “employee transportation coordinators” and an entirely new class of professionals. Ultimately, many employee transportation coordinators would wind up representing the government and other rideshare-promoting groups more than their own company’s interests. And many of them went on to work at state air pollution agencies once they moved on from their private-sector origins.

As was the case for many environmental regulations, the employer mandates pioneered locally in California by aggressive air pollution control districts would subsequently be adopted at state and federal levels. In 1991, Federal Clean Air Act Amendments and the California Clean Air Act later ratified the district’s approach. The Federal Clean Air Act required that areas with ozone emissions grossly exceeding the Federal Ambient Air Quality Standard for Ozone must require employers of 100 or more employees to achieve a 25 percent increase in AVR levels above a 1991 baseline level by the end of 1996. The 1991 California Clean Air Act reflected the federal mandate but added more specific requirements that severely polluted areas achieve an average of 1.5 or more persons per passenger vehicle during weekday commute hours by 1999. Finally, the California Air Resources Board approved a guidance document that included employer-based trip-reduction measures as strategies to be pursued by air districts in their attainment programs in 1991.

As I noted in my doctoral dissertation back in 1994, Regulation XV was wildly unpopular with large companies in Southern California and while it was not as objectionable to most employees (who could mostly ignore it or accept subsidies that companies were forced to offer them), it was, nonetheless, one of the most hated environmental regulations in California history.

Thanks to California’s Brown Act, the state’s pioneering sunshine law that requires public access to government meetings, employers, trade associations, and other regulatory critics could regularly vent their spleens about Regulation XV at public hearings of the SCAQMD governing board and the California Air Resources Board. Those review boards, with members appointed by the major political parties and governor, were influenced by the negative public relations stemming from these meetings and eventually watered down subsequent versions of the rule.

The change was also spurred by data emerging that showed the employer rideshare mandates weren’t working. For example, as my doctoral research showed, Hughes Aircraft Company, with over 40,000 employees in the region, spent up to $1 million per year to implement massively complicated rideshare incentive programs, only to see single-occupant commuting actually increase. Ultimately, Rule 1501 was de-fanged, and weakened, renamed as the innocuous “Rule 2202,” and largely disappeared from sight as a major bone of contention in California air quality regulations. There is a cautionary note here, however. Government regulations are much like vampires: they rarely die, they just go underground for a while before emerging again at a later date.

Using employers to coerce employees to overcome public resistance to government fiats is not new, but it is an ill-advised way for the government to exert its will under the cover of public health and safety rules. If the Biden administration moves ahead with employer-vaccination mandates through the Occupational Safety and Health Administration, it seems certain the backlash will continue to grow. Opposition to California’s rideshare mandate led to what may have been the first real popular revolt over an environmental public health regulation in the United States.

Mandates didn’t work for California’s environmental regulators then, and won’t likely work for the Biden administration now. President Biden’s COVID-19 vaccine mandate, no matter how well-intentioned to fight the pandemic, can only serve to further politicize and undercut public trust in workplace health and safety regulations and regulators. As legal analyst Walter Olson writes at Reason.com, Congress has armed OSHA “with grossly overbroad powers” but “courts have frequently struck down OSHA actions.” The Biden administration could save America from a lot of regulatory, legal and political fighting over its proposed COVID-19 vaccine mandate by recognizing how this mandate approach failed in California in the past.

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A recent bipartisan proposal in Congress would allow more foreign health care workers to immigrate to the US to help combat the pandemic. The Healthcare Workforce Resilience Act (HWRA) would recapture up to 40,000 unused employment-based immigrant visas from prior years and allocate them to physicians and nurses. Specifically, the legislation would reserve 25,000 visas for nurses and 15,000 for physicians. The visas issued under the legislation would not be subject to any per-country numerical caps, and additional visas would be made available for spouses and unmarried children of the health care workers. Prospective recipients could petition for the visas up to 90 days after the end of the COVID-19 national emergency declaration. Temporary measures like the HWRA would be beneficial, but America’s aging population will result in physician shortages well beyond the pandemic, and permanent solutions are needed. 

America’s Looming Physician Shortage

According to projections from the Census Bureau, the population of people over the age of 75 will more than double in the next 40 years. Figure 1 below shows that over the same period, the population of people over 85 is expected to nearly triple.

Source: U.S. Census Bureau Population Projections 

Meanwhile, approximately 32 percent of physicians in the United States are already over the age of 60, and 51 percent of physicians are between the ages of 40 and 59. The median retirement age among physicians is about 65- years old, which suggests that a large share of America’s physician workforce is likely to think about retiring over the next decade.

The number of new health care workers entering the workforce may not be sufficient to offset the combined effects of the aging population and anticipated physician retirements. Figure 2 shows recent projections from the Association of American Medical Colleges suggesting the US could face a shortage of between 54,100 and 139,000 physicians by 2033. Allowing more foreign-trained physicians to practice in the United States could help alleviate this shortage.

Source: Association of American Medical Colleges 

The Role of Foreign Medical Graduates 

Immigrant physicians and nurses already play a significant role in the country’s health care workforce. A recent Organisation for Economic Cooperation and Development (OECD) report found that approximately 30 percent of physicians in the United States were foreign-born. However, it can be difficult for more foreign-born physicians to come to the US and practice medicine, especially if they received their training in other countries. 

Data limitations make it difficult to assess how many health care workers in each occupation arrive annually under various visa programs. However, the available data suggest that the US immigration system does not prioritize health care workers. For example, a report from the Migration Policy Institute stated that:

“Just 5 percent (or 4,771) of the 93,615 H-1B petitions approved for initial employment in fiscal year (FY) 2018 went to workers in occupations in health care and medicine, according to Department of Homeland Security (DHS) data. Fifty-one percent of annual H-1B petitions in FY 2018 went to workers in computer-related occupations.”

Expanding immigration opportunities for physicians would likely be beneficial given the anticipated shortage. However, doing so within the current immigration system would involve difficult tradeoffs and disadvantage other occupations. The challenge is that workforce needs and priorities vary across states. Some states may, in fact, benefit more from workers in tech-related occupations than from physicians. 

One solution to this problem is to grant states additional authority to determine their own immigration priorities based on their own workforce demands. Canada and Australia have implemented similar regional immigration programs that could serve as models.

Navigating limited immigration channels is only part of the problem. Foreign medical graduates (FMGs) must also obtain state-level licenses to practice medicine in the United States. Education requirements in the US are different than in most other developed countries, so FMGs often need to receive additional education and training––even if they have substantial experience working abroad.

Licensing requirements for foreign medical graduates can vary considerably from state to state. In general, FMGs are required to pass multiple exams, demonstrate English-language proficiency, obtain sub-specialty certifications, and complete a residency program in the US or Canada. If they wish to meet their residency requirement in the US, they must clear additional hurdles along the way. As the American Immigration Council explains: 

“First, the Educational Commission on Foreign Medical Graduates (ECFMG) must certify that the foreign national is academically prepared to enter a U.S. graduate medical education program (residency). Then, the physician must “match” into a U.S. residency program, in competition with U.S. medical graduates as well as other international peers.”

Residency program requirements can create significant bottlenecks for foreign medical graduates. In many cases, FMGs who completed residencies in other countries are required to repeat them because states may not recognize residency requirements in those countries. Moreover, match rates are considerably lower for foreign-trained physicians than US medical school graduates, leaving large numbers of otherwise capable FMGs unable to practice. In 2019 alone, more than 2,800 FMGs passed their required exams but were not matched with a residency program. 

Most states also require longer residencies for foreign medical graduates than for US medical school graduates and in many cases, these requirements are up to three times longer for FMGs. Holding foreign and US medical graduates to the same standards is a fairly modest reform that would present little risk in terms of quality. A 2014 paper pushed in Public Choice concluded that “over a third of all US states could reduce their physician shortages by at least 10 percent within 5 years just by equalizing migrant and native licensure requirements.”  

Many of the state-level pandemic responses point to opportunities for permanent reform. Early on in the COVID-19 crisis, several governors issued emergency orders that temporarily loosened restrictions on foreign medical graduates. New Jersey even granted temporary licenses to physicians already licensed in foreign countries. Unfortunately, the state is no longer accepting applications for these temporary licenses.   

Conclusion

The aging US population is expected to result in a growing shortage of physicians over the coming years. Inflexible immigration policies and onerous licensing requirements are exacerbating the problem by preventing foreign-trained physicians from practicing medicine in the United States.

The COVID-19 emergency responses at the state and federal levels have specifically recognized the importance of foreign-trained physicians. However, it would be a mistake to dismiss concerns about physician shortages after the COVID-19 crisis subsides. Lawmakers should build on the lessons learned during the pandemic and pursue permanent reforms to expand the physician workforce.  

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