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Legislation of Interest

Reproductive Health

The My Body My Data Act (H.R. 8111/S. 4434), introduced by Reps. Sara Jacobs (D-CA), Ayanna Pressley (D-MA), and Dean Phillips (D-MN); and Sens. Mazie Hirono (D-HI), Ron Wyden (D-OR), Tina Smith (D-MN), and Tammy Duckworth (D-IL), would 1) limit the personl reproductive and sexual health data that can be collected, retained, used, or disclosed to only what is needed to deliver a product or service; 2) protect personal data not covered by HIPAA, including data collected by apps, cell phones, and search engines; 3) grant a private right of action to individuals when their information is accessed in abrogation of the statute; 4) allow individuals to access or delete their personal data if they choose to; and 5) expressly give the FTC the authority to enforce the statute.

The Let Doctors Provide Reproductive Health Care Act (H.R. 8650), introduced by Reps. Kim Schrier (D-WA), Ami Bera (D-CA), and Raul Ruiz (D-CA), would protect healthcare providers in states where abortion is legal from being subject to laws in other jurisdictions where the procedure is illegal, prohibit federal funds from being used to pursue legal cases against individuals who access reproductive health care services in states where they are legal; and create grant programs through the Department of Justice and HHS to fund legal assistance for and support reproductive health care service providers; including funding to obtain physical, cyber, or data privacy security upgrades. The companion bill, S. 4723, was introduced in early August.

Physician Wellness

The Protecting Social Workers and Health Professionals from Workplace Violence Act (H.R. 8492/S. 4412), introduced by Reps. Julia Brownley (D-CA) and Robin Kelly (D-IL); and Sens. Kyrsten Sinema (D-AZ) and Lisa Murkowski (R-AK), would authorize the HHS Secretary to award grants to states and tribes to deploy safety equipment such as security cameras, GPS locators, and panic buttons; provide safety training including crisis management, de-escalation techniques, and self-defense; and technical assistance to track violence incidence rates and the efficacy of workplace safety programs.

Opioids

The Stop Pills That Kill Act (H.R. 8175), introduced by Reps. Ken Buck (R-CO), Greg Stanton (D-AZ), David Joyce (R-OH), and Luis Correa (D-CA), would extend existing penalties for possessing paraphernalia used to manufacture methamphetamine to possessing paraphernalia used to make counterfeit pills that contain methamphetamine, fentanyl, and its analogues. The bill would also task the DEA to develop a comprehensive plan to deal with counterfeit pills containing either methamphetamine or fentanyl; and require the DEA and Office of National Drug Control Policy (ONDCP) to issue an annual report relating to the scope, investigations, and prosecutions of pills laced with illicit drugs. Its companion bill, S. 4151, was introduced in May.

The Streamlining Text for Official Policy by Formulating Effective Needed Tools to Address Narcotics, Yearly Loss of life and Protect Americans from Chemical Killers and Against Gangs Effectively (STOP FENTANYL PACKAGE) Act (S. 4782), introduced by Sen. Rick Scott (R-FL), would provide professional, criminal, and civil liability protections for health care providers, first responders, and laypersons who prescribe, dispense, distribute, or administer opioid antagonists in good faith and with prior training; provide grants, through the Attorney General, to local law enforcement agencies and forensic laboratories in communities with high rates of drug overdoses; elevates the Director of the ONDCP to Cabinet level; and increase data collection on overdose-related deaths and the Fentanyl Profiling Program, which traces the flows of illegal drugs through the black market.

Federal Regulatory News

Open for Comment

On August 23, the Department of Veterans Affairs published a proposed rule entitled Health Care Professionals Practicing via Telehealth to update VA regulations regarding, among other items, practice standards for VA professionals. The proposed rule also clarifies licensure requirements for the practice of telehealth by trainees and postgraduate employees. As noted in the proposed rule, the FSMB and several state medical boards have stated the importance of requiring trainees to have a full and unrestricted license to practice without supervision, including for telehealth encounters.

  • Comments are due by October 24, 2022.


Highlights

On August 4, HHS published a notice of proposed rulemaking (NPRM) restoring Obama-era interpretations of Section 1557 of the Affordable Care Act, which prohibits health care discrimination on the basis of race, color, national origin, age, disability, or sex. The Obama Administration construed Section 1557 to apply to gender identity and sexual orientation - shielding trans and gender nonconforming individuals - which the Trump Administration rescinded in 2020.

On August 11, the Commerce Department, through the National Telecommunications and Information Administration (NTIA), announced over $146 million in funds for broadband internet projects in Native American lands in New Mexico through the Tribal Broadband Connectivity Program. Funded by the Consolidated Appropriations Act, 2021; the program supports telehealth, distance learning, broadband affordability, and digital inclusion, among other aspects.

On August 15, HHS confirmed prior reports that the COVID-19 public health emergency would be extended when the current declaration ends on October 13. A 12th extension, which is 90 days long, would last into January 2023.

On August 16, HHS approved a 12-month extension of postpartum Medicaid and CHIP coverage in Hawaii, Maryland and Ohio, which will make 34,000 individuals newly eligible for related benefits.

On August 22, National Institute of Allergy and Infectious Diseases (NIAID) leader Anthony Fauci announced that he would step down from the agency at the end of the year.

On August 26, HHS Secretary Xavier Becerra and CMS Administrator Chiquita Brooks-LaSure co-authored a letter to governors urging them to apply for Medicaid section 1115 demonstration waivers in efforts to “expand access to reproductive health care” including facilitating interstate travel from states that have prohibited abortion to states that allow it. The letter also highlighted HHS’ July 11 guidance on EMTALA, which requires that hospitals offer stabilizing treatment during emergency medical conditions, which can be an abortion in certain circumstances.

On August 29, HHS, through HRSA, announced a $20 million investment in the White House’s Blueprint for Addressing the Maternal Health Crisis. Specifically, the grants will go towards the following:


On August 31, the FDA authorized “updated boosters” from both Moderna and Pfizer-BioNTech that are specifically formulated to target the Omicron coronavirus variant. The new boosters are only for people ages 12 and up, who have had their primary vaccinations.

Federal Contact

The FSMB's federal legislative staff will continue to track and monitor legislation and regulations of interest to state medical boards. If there is specific legislation you would like us to assist with, please contact Kandis McClure, Director, Federal Advocacy and Policy at kmcclure@fsmb.org, or by phone at (202) 463-4003.

As of September 7, there are six states currently in session. More information on state legislative calendars can be found here.

Legislation Limiting State Boards’ Authority

The FSMB continues to monitor a troubling legislative trend around the country aimed at limiting state medical boards’ authority to investigate patient harm in relation to COVID-19. This year, 61 bills have been introduced to impede licensing boards’ regulatory capabilities in response to COVID-19 treatment in 25 states, while 10 states have introduced 13 bills that would explicitly allow for the off-label use of prescription drugs, such as ivermectin and hydroxychloroquine. As of September 7, six of those bills are active, and five have been signed into law. A full breakdown of this legislation can be found here.

State Waivers Update

Since the COVID-19 pandemic began in March 2020, the FSMB has maintained charts documenting state waivers on out–of–state physicians practicing in–person and via telemedicine, as well as expediting licensure for inactive or retired physicians. As of September 7, 10 states are still allowing applications for out–of–state physicians to practice in person, 9 via telemedicine, and 6 are expediting licensure for inactive or retired physicians.

FSMB’s COVID-19 resources can be found here.

Interstate Medical Licensure Compact

The Interstate Medical Licensure Compact has had a banner year so far in 2022: In January, New Jersey joined the Compact; Indiana joined in March, followed by Connecticut in May, and most recently, Rhode Island in July.

The IMLC is comprised of 39 Member States: 37 states, the District of Columbia, and Guam.

Currently, there is IMLC legislation pending in both New York (A 10559) and North Carolina (SB 380).

State Regulatory News

On August 2, a federal judge ruled that West Virginia’s Medicaid program may no longer exclude coverage for gender-affirming surgical care for transgender beneficiaries, ultimately concluding that denying care gender dysphoria discriminates on the basis of sex.

On August 4, Texas Attorney General Ken Paxton filed a motion to enjoin the Biden Administration from using a provision of the Emergency Medical Treatment and Active Labor Act (EMTALA) to require Texas hospitals and doctors to perform abortions as a condition of receiving Medicare and Medicaid funding.

  • EMTALA requires that Medicare hospitals provide all patients appropriate emergency care irrespective of any state laws or mandates that apply to specific procedures. In July, HHS distributed guidance that if a hospital is in a state that prohibits abortion by law and does not make exceptions for the health or life of a pregnant person, EMTALA preempts that state law.
  • On August 23, U.S. District Judge James Wesley Hendrix in Lubbock agreed with Paxton, describing HHS' guidance as an overreach and calling it "unauthorized," leaving Texas hospitals and physicians to now "defer to Texas law to supply the standard of care concerning abortion in medical emergencies."


On August 11, the Alabama Medical Cannabis Commission approved rules for the licensing and regulation of medical marijuana in the state, which is expected to reach dispensary shelves at the end of 2023. Notably, flower and edibles are verboten, and medical marijuana must be in cream, gel, oil/liquid, tablet, or suppository form. Currently, there are 16 qualifying medical conditions, including cancer, chronic pain and PTSD; patients need a recommendation from a physician and a medical cannabis ID card, which can cost up to $65.

On August 19, a federal judge ruled against CMS in a dispute with Georgia’s Pathways Program, which will tie a limited Medicaid expansion in the state with a work requirement. The waiver was initially granted by the Trump Administration in 2020 before being rescinded by the Biden Administration last year.

On August 24, a federal judge blocked part of Idaho’s near-total abortion ban — siding with the Biden administration’s interpretation of EMTALA, stating that the law “does not provide adequate protection for physicians who perform abortions during a medical emergency.”

On August 25, the 8th U.S. Circuit Court of Appeals ruled that an Arkansas law banning transgender minors from receiving gender-affirming care cannot be enforced for now. The law was the first prohibiting doctors from providing hormone treatments, puberty blockers and surgeries for minors. A trial is scheduled for October before the same judge on whether to permanently block the law.

Pending Legislation of Interest

Board Structure and Function

California AB 2236 – Lowers the education and training requirements for optometrists performing laser or minor procedures which involve the use of a scalpel or injections. Under the bill, an individual would no longer be required to complete medical school, but instead complete a 32-hour course offering lectures and practice on models, passing a national test, and completing a small number of training cases on patients. The practice of optometry is regulated by the State Board of Optometry, not the Board of Medicine. The California Medical Association opposes the bill.

Mental Health

New Jersey S 2934 - Legalizes the possession of psilocybin for adults over the age of 21, creates psilocybin "service centers" to provide residents with "supported experiences," and creates the Psilocybin Behavioral Health Access and Services Advisory Board under the auspices of the Department of Health to guide the regulation and use of psilocybin in health care.

Prescribing Practices

Pennsylvania HB 2781 – Extends opioid prescribing regulations from minors to all individuals, defines "conservative care” as an approach to treating back pain, neck pain and related spinal conditions utilizing nonpharmacological and nonsurgical treatment options; and among other things, requires prescribers, before issuing a first prescription for opioids, to assess whether the individual is in treatment for substance use disorder, or whether the individual has first tried a "conservative care" regiment. However, these conditions do not apply to care rendered in emergency departments or urgent care centers.

Reproductive Health

South Carolina H 5399 – Prohibits abortion, with exceptions for rape and incest, but only before 12 weeks of gestation. Abortions carried out according to the exceptions must be reported within 24 hours. There is also an exception for the health of the mother. Women who have abortions "may not be criminally prosecuted for violating any of the provisions," but physicians that provide abortions that violate the statute will be deemed to have committed unprofessional conduct and their license "shall be revoked by the State Board of Medical Examiners for South Carolina, after due process." Currently, South Carolina has a ban on abortions after 6 weeks of gestation with exceptions for rape and incest, in addition to the health of the mother. However, the enforcement of the ban is on hold after the state Supreme Court in August granted a temporary restraining order, leaving the state’s 20-week ban in place for now.

South Carolina H 5483 – Allows abortion prior to fetus viability (defined as the 24th week of pregnancy), or after viability in cases of preserving the health of the mother, rape, incest, or fetal abnormality. Allows physicians to prescribe abortion-inducing drugs via telemedicine. Prohibits authorities from seizing blood, DNA, medical waste, or any other items as evidence to investigate an allegation of rape or incest without the written consent of the mother. Also prohibits any disciplinary action or civil action against a healthcare worker who involved in the performance of an abortion.

State Contact

The FSMB's state legislative staff will continue to track and monitor legislation and regulations of interest to state medical boards. If there is specific legislation you would like us to assist with, please contact John Bremer, Director, State Legislation and Policy at jbremer@fsmb.org, or by phone at (202) 463-4021.

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