“Right to Try” Is Compassionate Legislation, but Does It Make Sense?

President Trump signed the Right to Try Act yesterday, which cleared the House in late May, having been approved by the Senate in 2017. This legislation gives terminally ill patients the ability to access experimental drugs which have passed Phase 1 of the FDA approval process but are not yet officially approved.

It is interesting to note that this Hail Mary legislation is opposed by both the American Cancer Society and the American Lung Association. And it seems redundant since the FDA is already able to grant terminally ill patients access to these medications, after all other treatment options have been exhausted. In fact, in 2017, over 99 percent of the 1,842 requests for “compassionate use” were allowed; only 11 were turned down.

It would appear that health plans would not be required to pay for this treatment. Under the Affordable Care Act (ACA) all insurance plans, except grandfathered plans, are required to cover in-network care for patients who are in an approved clinical trial, but only after all other treatment options are attempted. It would seem that individuals electing treatment under this act would not be eligible for reimbursement under their plan, but it would not be a surprise to me if a right to be covered was not asserted. In fact, I can almost feel the political pressure to add this reimbursement coming.

The cost of health is most acute at the end of life and a 2011 Kaiser study on Medicare spending showed that 28% of patients’ total healthcare expenses were incurred in the last 6 months of life. No amount is too much to prolong the life of your loved one. The Hail Mary originated in professional sports and I have watched more than one sporting event miracle come true – the question is, as we wrestle with escalating costs and the ability to provide even basic care to all Americans, can we afford to add even more?

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