The White House is obviously the top prize, but next month voters at the state level will decide the fate of a wide range of healthcare plans and proposals when they go to the polls or drop their ballots in the mail. Among the issues hanging in the balance: dialysis center staffing, paid medical leave, abortion and the legal status of marijuana.
One of the more controversial ballot measures for this year is Proposition 23 in California, which, if passed, would establish a variety of new rules for dialysis clinics, including a requirement that a physician be on-site while patients are being treated and a ban on discriminating against patients based on their insurance coverage.
Not on the ballot: Medicaid expansion
The focus of so much fierce campaigning and ardent politicking at the state level in the past few elections, Medicaid expansion, is taking this November off.
Oklahoma voters approved a Medicaid expansion ballot measure in June, and Missouri voters approved one in August. The issue may make it on to the ballot in Florida in 2022; an organizing committee there decided to delay their target till then. Democrats in South Dakota are also eyeing 2022 as the year they will be ready to put Medicaid expansion in front
of voters.
“Given the success of Medicaid expansion through ballot measures in states where governors or legislatures opposed expansion, we should expect to see the same tactic attempted in some of the remaining states,” says Philo D. Hall, a senior counsel in healthcare and life sciences practice at Epstein Becker Green law firm and a HHS lawyer during the George W. Bush administration. The more time that passes from passage of the ACA in 2010, the more palatable Medicaid expansion becomes for many voters who opposed “Obamacare,” Hall says.
Still, there are plenty of entanglements in politics of Medicaid expansion in the 12 remaining nonexpansion states. In Kansas, the Democratic governor and the Republican Senate majority leader agreed to a compromise proposal, but it was eventually blocked, partly because of anti-abortion politics. In North Carolina, the Democratic governor and Republican-controlled legislature waged a drawn-out, back-and-forth battle over the state budget; the main issue was Medicaid expansion. Complicated by COVID-19, the political maneuvering stumbled to an end with no decision reached.
These state-by-state skirmishes are occurring against the backdrop of the entire ACA again being in legal jeopardy. The California v. Texas case, which could result in a ruling throwing out the entire law, is scheduled to be argued before the Supreme Court in November. The death of Justice Ruth Bader Ginsburg leaves three reliably liberal justices on the court, although some experts say the main legal issue in the case, severability, would not necessarily split the justices along liberal-conservative political lines.
Matt Salo, executive director of the National Association of Medicaid Directors, says the ACA has always been under an existential threat. “At the core of it is politics, and it (the ACA) has nuances that don’t necessarily play well with politics. The ACA is separate from Medicaid expansion and is an emblematic issue that has rallied conservatives in opposition.”
This is not the first time that dialysis centers have been the subject of a ballot proposition in California. Two years ago, Proposition 8 would have capped dialysis center profits. After the dialysis industry reportedly spent over $100 million fighting the proposition, the initiative failed to pass.
Service Employees International Union-United Healthcare Workers West, which attempted to organize workers at the large dialysis companies, supported Proposition 8 and is backing Proposition 23 this year.
Kathy Fairbanks, spokesperson for a group campaigning against Proposition 23, says the measure would force dialysis clinics to have a physician on-site even though that doctor would not be involved in direct patient care and would not need to be a specialist in kidney care. She says that other parts of the proposition — reporting requirements and the ban on discrimination — are public relations ploys, because reporting on infections and treating patients the same are already happening.
“The proponents know what they are doing; the prop sounds good — physician oversight, infections reported statewide — but three of the four points are irrelevant. It is not designed to make sense; it’s not about care but about politics,” Fairbanks says.
Colorado’s Proposition 118 would establish 12 weeks of paid leave for caring for a new child or seriously ill family member or, in the case of serious illness, for the covered employee. The maximum amount a person could receive would be $1,100 per week and would be paid for by payroll tax, split equally between employers and employees.
Proponents cite the benefits of paid time off for families with young children and the hardships of caregiving for seriously ill family members. Critics argue that the payroll tax will be a burden on employees in time of economic uncertainty. Some companies that offer private plans for covering leave could opt out of the program, and companies with 10 or fewer employees would not have to pay the payroll tax.
Coloradans will also vote on Proposition 115, which if passed would prohibit abortions after a fetus reaches a gestational age of 22 weeks, dating from the woman’s last menstrual period. According to the Guttmacher Institute, 17 states have similar bans based on gestational age. Louisiana also has an abortion measure on its ballot. A yes vote for Amendment 1 would add language to the state’s constitution stating that “nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
Scope of practice battles for are almost being waged at the state level and this year the optometrists and ophthalmologists have been going at it in Arkansas. After the optometrists won a legislative battle to expand their scope of practice, the ophthalmologists petitioned to put a question on the ballot that with enough no votes would have overturned that law. But a ruling by the Arkansas Supreme Court effectively canceled the vote. Currently, only Alaska, Kentucky, Louisiana and Oklahoma allow optometrists to prescribe drugs and perform a variety of procedures.
After the June vote in favor of Medicaid expansion, Oklahoma voters will be asked to decide whether to redirect funds the state receives from a 1998 settlement with tobacco companies. If voters vote yes on Question 84, the state will use most of its tobacco settlement money to secure federal matching funds for its Medicaid program. Currently, most of it goes to the Tobacco Settlement Endowment Trust, which uses it to fund grants to promote tobacco cessation programs and other efforts designed to improve the health of Oklahoma residents.
Legalization growing like a weed
Eight years ago, Colorado and Washington were the first states to legalize marijuana for recreational purposes. Now marijuana is legal for that use in 11 more states and Washington, D.C. “Weed is so normalized in America that it is hardly cool anymore,” Sarah Rense wrote in Esquire magazine.
Legalization is still spreading, with marijuana-related questions on the ballot next month in seven states, three of which are deep red. There’s definitely a blue state-red state gradient to marijuana legalization, but it is not without patchiness.
Voters in Oregon, which has already legalized recreational marijuana, are being asked to decide to whether to use the state’s marijuana tax revenue to establish a drug addiction recovery and treatment program. But the main provision of Measure 10 would make personal, noncommercial possession of controlled substances such as heroin, cocaine and methamphetamines a lower-level, class E violation, with a maximum fine of $100. Proponents argue that the measure will free up money so the short supply of substance abuse treatment services and programs could increase to meet the growing demand.
Voters in New Jersey and Arizona, both of which allow medical marijuana, will decide whether to go a step further and legalize possession and use for recreational purposes. Arizona voters narrowly defeated a legislation measure in 2016.
Montana and South Dakota each have two marijuana-related initiatives on the ballot. In Montana, one initiative would create a system of legal cannabis access for adult use, and a second would ensure that only those 21 and older could be involved in the marketplace. In South Dakota, passage of Constitutional Amendment A would legalize marijuana for 21-year-olds, and Initiated Measure 26 would take the more moderate step of allowing for medical marijuana.
Voters in Mississippi will consider two versions of a medical marijuana amendment. Initiative 65 provides for the establishment of a medical marijuana program for individuals with debilitating medical conditions.
Alternative 65A would make medical marijuana legal only for people with a terminal illness. In Nebraska, voters will decide whether to move from complete criminalization of marijuana to allowing medical marijuana.
Getting into generics
In September, President Donald Trump signed an executive order designed to lower prescription drug prices, but its practical effects are months away and may never occur because of court challenges (and, obviously, the outcome of the election). Meanwhile, 33 states passed laws in 2019 that addressed drug prices.
There are no state-level drug pricing ballot initiatives this year, but Philo D. Hall, a senior counsel in healthcare and life sciences practice at Epstein Becker Green law firm believes that drug pricing is “another issue ripe for ballot measures,” especially with state legislatures becoming more assertive in attempting to limit the amounts that states pay for prescription drugs and requiring pricing disclosures from pharmacy benefit managers. Late last month, California Gov. Gavin Newsom signed into law legislation that will create a new state-sponsored drug label, Cal Rx,for generics. California is also changing the purchasing policy of its large Medicaid program so that next year it starts buying directly from drugmakers.
Mari Edlin is a freelance journalist living in Sonoma, California.
