Report Gives Almost All States a Failing Grade on Price Transparency

The 2014 Report Card on State Price Transparency Laws has been released by the Health Care Incentives Improvement Institute (Institute), providing a resource for policy makers, consumer advocates and health care leaders to access health care prices in every state across the country. Noting that the inaugural report in 2013 gave many states a failing grade, the Institute nonetheless “raised the bar” and further researched state laws, state price transparency regulations, price transparency websites, and all-payer claims databases for the 2014 report. The Institute did not factor “voluntary price transparency websites” into its grade, websites that are hosted by hospital associations, foundations or nonprofits, because they are dependent on the “good will and resources of the organizations that hosts them.”

Methodology

The Institute reviewed: (1) state-specific laws focused on transparency for health care; (2) related state regulations regarding price transparency; and (3) state-mandated price transparency websites, with each state getting an overall grade based on the 3 components. Numerous sub-factors influenced the final grade, with points earned by states for various specific criteria relating to the website’s ease of use, utility, scope and accuracy. The overall review generated six resources, including a report card giving each state a letter grade, reference tables and an appendix with information on voluntary websites to give states a sense on how their websites measure up against others. The Institute also looked at laws and regulations relating to the all-payer claims databases (APCDs) which provided a more in-depth analysis than the inaugural report.

State Findings

Maine and Massachusetts received the highest grade, both earning a “B.” Colorado, Vermont and Virginia earned “C” grades while the remaining states were given an “F.” Among the states with an “F” grade, fluctuations occurred in scores among the sub factors. For instance, Arkansas was given a “poor” rating for utility, ease of use and scope, and an “average” rating for accuracy of the data. Illinois received a “poor” rating for all four sub-factors, while Florida received a “good” for ease of use, an “average” for accuracy of data, and “poor” for the remaining sub factors. Most of the voluntary websites were also given “F” grades, with Minnesota receiving the highest grade of “C.”

Legal Scholars: Submit Your Entry Now

The Wolters Kluwer Health Law Legal Scholar program has begun its second contest allowing current law students to compete for the chance to have their work published. Wolters Kluwer will accept blog post submissions through Friday, April 18, 2014.

One post per category may be submitted by any student currently enrolled in an ABA accredited law school. Categories for submission are:

  1. Medicare;
  2. Medicaid;
  3. Health care reform;
  4. Food, drugs, devices, or biologics; and
  5. Tricare or Veterans health programs.

The winning submissions will be featured on the main page of Wolters Kluwer Law and Health the week of May 5th, 2014, along with a biographical paragraph about the author. The submissions will also be archived on the Wolters Kluwer Law and Health Legal Scholar page. Wolters Kluwer Law and Business encourages students to write on topics they feel passionate about, pose questions to the industry, or are the subject of litigation. The specific rules of the contest are listed below. For more information, click here.

Highlight on Virginia: Politicians Explore Expanded Options for Uninsured

The state of Virginia has politicians exploring health insurance options that would allow more Virginians access to health insurance, but you won’t find them calling it “Medicaid expansion.”

Proposed by state Senator John Watkins (R-Powhatan), Senate Bill 45 was originally drafted to create a state-based Exchange to replace the federal Marketplace. Watkins’ version would create a State Corporation Commission that would provide private insurance to those eligible to shop on the federal Exchange. His plan would create the Virginia Health Benefit Exchange (VHBE), which would be established and operated by a new division within the State Corporation Commission. It would facilitate the purchase of qualified health and dental plans to both individuals and employers. The Exchange would be funded by assessments on health insurers offering plans in the Exchange, and plans would not be required to cover any state-mandated health benefit not required by federal law.

Watkins told the Senate Commerce and Labor Committee that his plan was “intended to be a private marketplace” but was not entirely clear if his plan would replace the federal Marketplace for the state.

In its place, the Senate Commerce and Labor Committee approved a substitute bill that would create Marketplace Virginia, also established and operated by the State Corporation Commission and which would also facilitate the sale and purchase of qualified health and dental plans by July 1, 2016. Some or all of the estimated $40 million in implementation would be funded with federal Exchange Establishment Grants from CMS. The bill, which was referred to the Senate Committee on Finance, would also be funded by special fund revenues generated by assessment fees on health carriers, federal funds or grants from nongovernmental organizations and funds from the General Assembly.

The Washington Post quoted Watkins as saying “We’re not going to expand (Medicaid) . . . But we’re going to cover the population that it would be responsible for . . .  It’s a pro-business approach to covering the uninsured.”

Supreme Court Grants Certiorari in Dispute Over Pomegranate Juice Labels

The Supreme Court will review the Ninth Circuit’s ruling that Pom Wonderful LLC (Pom), the maker of pomegranate juice products cannot challenge the label of Coca Cola’s Minute Maid juice products under the Lanham Act because the FDA is solely in charge of regulating food labels. Pom alleged that Coca Cola’s labels were deceptive, as their “pomegranate and blueberry” juice blend was 99.4 percent apple and grape juice. Pom sued under the Lanham Act which allows for private lawsuits for unfair competition based on deceptive labeling or marketing. The petition for certiorari was filed in December of 2012. Neither Justice Alito or Justice Breyer took part in the consideration or decision.

As we reported in January of 2013, Pom argued that the Ninth Circuit erred, because the federal Food Drug and Cosmetic Act (FDC Act) promotes public health while the Lanham Act provides remedy for parties harmed by unfair competitive practices, including deceptive labeling. Pom argued that the court should have applied a “conflict preemption” analysis such as that in Wyeth v Levine, and that actions alleging deceptive labeling of food under the Lanham Act do not present obstacles to the FDA enforcing the FDC Act.

On November 27, 2013, the Solicitor General on behalf of the United States filed an amicus brief arguing that the petition for writ of certiorari should be denied. The United States argued that although the Ninth Circuit made some errors in its analysis, and its preclusion reasoning was too broad “it was correct to recognize that FDA’s regulations preclude a Lanham Act challenge to the common name of respondent’s juice…the common name of respondent’s juice closely parallels examples that FDA’s regulations offer as permissible common names for juice mixtures.”

At trial, Pom claimed that Coca Cola’s label was deceptive because: (1) the words “pomegranate” and “blueberry” were in a much larger type than the words indicating that they were used as flavoring in a blend of other juices; and (2) the picture on the label showed pomegranates and blueberries in equal size and proportion to apples and grapes. Pom presented evidence that the labels led consumers to believe that the product contained significant, if not equal, amounts of pomegranate and blueberry juices in proportion to the apple and grape juices. The United States argued that the real issue in the case at hand is that between the common name of the juice and the presentation on the package of the otherwise non-misleading common name, and this ambiguity makes the case improper for determining whether Lanham Act is precluded.

The full history of the case can be found here.