Senate Rules Loom over Medicaid Proposals

This article was originally written by Erin Durkin and published by National Journal on February 22, 2021.

Although policy experts think the Medicaid provisions of the COVID-19 package will likely clear budget-reconciliation rules, nothing is guaranteed.

House Democrats are aiming to beef up Medicaid as part of their COVID-19 response package heading for a floor vote this week.

The proposals include COVID-19-specific policies, like guaranteeing full coverage for vaccines without out-of-pocket costs under the program. Others reflect longtime health-policy goals of the Democratic Party, such as offering incentives to get red states to expand their Medicaid programs under the Affordable Care Act, expanding postpartum coverage for women, and providing Medicaid eligibility for inmates 30 days before release.

The changes to Medicaid are riding on the coronavirus relief bill, President Biden’s top legislative priority, a $1.9 trillion vehicle that could be passed without Republican support.

The budget-reconciliation process is reserved for making changes that directly impact spending, revenue, or the debt limit. Provisions that don’t address those—or that make a change that is “merely incidental” to the federal budget—can be struck out of the legislation in the Senate. The judgment over whether proposals violate these restrictions, known collectively as the Byrd Rule, is typically deferred to the parliamentarian, whose job is to advise the Senate on rules and procedures.

Experts who spoke to National Journal said they were fairly confident the Medicaid provisions fulfill the requirements of a reconciliation package and are safe from being challenged on the floor of the Senate.

However, they conceded that determining if a budget change is “merely incidental” and therefore should be removed is left up to the interpretation of the parliamentarian.

“All of these provisions are changing what the federal government would pay for states through Medicaid under particular circumstances, and so it is hard to think of provisions that would be much more budgetary than that,” said Matthew Fiedler, an economic-studies fellow at the USC-Brookings Schaeffer Initiative for Health Policy.

“It seems likely to me that these types of provisions would be acceptable under reconciliation, with the caveat that the rules for what types of budgetary impacts are merely incidental are not entirely clear-cut, so there can always be surprises when the parliamentarian actually rules,” Fiedler added.

Other attempted changes to Medicaid spending in the past were determined to be in violation of the Byrd Rule. Republicans in 2017, as part of their attempt to repeal Obamacare, included a provision that would block funding to Planned Parenthood for one year. Republicans also wanted to remove requirements that made Medicaid alternative-benefit plans cover 10 health benefits Obamacare deemed mandatory for insurance policies.

The parliamentarian determined that these measures violated the Byrd Rule, according to a memo from the Senate Budget Committee minority at the time.

“Changing mandatory benefits packages for populations of Medicaid—that would technically affect spending levels but might look more like a policy choice, and so that might be viewed more skeptically by a parliamentarian,” said Phil Waters, staff attorney at the Center for Health Law and Policy Innovation of Harvard Law School.

“Right now, what they’re proposing, all these sort of funding extensions for Medicaid expansion, there’s some dedicated funding in there for extending coverage postpartum to new mothers … I think those are all just specific funding increases that are pretty easy,” Waters added.

But he said that the amount of leeway the parliamentarian has to judge what is “merely incidental” is unclear.

A bigger hurdle might be keeping any potential increases to the deficit within the budget window outlined in the budget resolution, said Kelly Whitener, associate research professor at Georgetown University. A provision would violate the Byrd Rule if it increased the deficit beyond the budget window set out for the reconciliation, which in the case of the current package ends in 2030.

“It is potentially more concerning for those provisions that have spending in 2031 or in 2030 because you could see kind of a tail of spending extending into the next budget window,” Whitener said. “Where for some of the other provisions you start seeing zero, zero, zero as early as 2025 or 2028, you’re kind of well within that 10-year window, so I think that could be a challenge for some that have a bit of a tail.”

Many of the provisions proposed to change Medicaid coverage are not expected to add to the deficit by 2028, according to the Congressional Budget Office. That includes proposals requiring the coverage of COVID-19 vaccinations without cost-sharing in Medicaid and providing 12 months of postpartum coverage.

But some provisions, including the higher federal payments to incentivize states to expand Medicaid coverage, increase the deficit over the entire budget window.

Whitener said lawmakers included a Medicaid provision as a “revenue generator” that would help offset the costs of some of the deficit-increasing changes. The proposal would allow Medicaid to collect more money from drug manufacturers who pay to have their outpatient drugs covered in the program. Removing the cap on these rebates is anticipated to reduce Medicaid spending by almost $16 billion between 2021 and 2030.

“I think most of the provisions from the Energy and Commerce Committee have been pretty well thought through, and even though this is a House committee, I think they’ve put the package together with Senate rules in mind, so none of them really stick out to me as particularly risky,” she said.

Marc Goldwein, senior policy director at the Committee for a Responsible Federal Budget, also said that any Medicaid provisions that may increase the deficit in the long term are offset by other provisions included by lawmakers.

While Goldwein said he thinks the Medicaid provisions are not likely to run afoul of the Byrd Rule, he disagreed with Democrats’ move to include policy goals in Medicaid that “aren’t really related to COVID relief.” As an example, he cited the proposal to increase federal spending to push states to expand their Medicaid programs.

“I don’t think we should borrow for things that aren’t COVID relief that really are long-standing policy priorities, no matter how good they are,” he said.

“The plan here is clearly to approve them for two years and then to extend it and make it permanent,” he added. “It’s not to provide extra relief for COVID.”

Wisconsin and Indiana Remove Barrier to Hepatitis C Treatment for Medicaid Patients

This article was originally released by the National Viral Hepatitis Roundtable on February 22, 2021.

The two midwestern states removed prior authorizations for first time hepatitis C treatment, increasing opportunities for 130,000 individuals to be treated and cured of hepatitis C.

The National Viral Hepatitis Roundtable (NVHR) and the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI) today applauded Wisconsin Medicaid and Indiana Medicaid for removing prior authorizations for first time treatment for hepatitis C, joining just three other states without prior authorization requirements, including Louisiana, New York, and Washington. Lifting these restrictions will increase access to the hepatitis C cure for approximately 70,000 Wisconsin residents and an estimated 60,000 Indiana residents that are living with hepatitis C.

“Prior authorizations are a modifiable barrier to hepatitis C elimination that ultimately delay care for marginalized communities. Wisconsin and Indiana’s decisions to remove prior authorizations for first time HCV treatment is a vital step to combat rising hepatitis C rates and put the U.S. on a path towards hepatitis C elimination,” said Adrienne Simmons, Director of Programs at NVHR. “Wisconsin and Indiana join New York in removing prior authorizations for hepatitis C treatment, and we look forward to other states doing the same.”

Cases of Hepatitis C, a viral infection that causes liver inflammation and is one of the leading causes of liver disease, have been increasing since 2010 due to the ongoing opioid crisis. Today’s treatment for hepatitis C can cure most people in 8 to 12 weeks. Yet barriers to this treatment persist across the country.

“It is encouraging to see Wisconsin and Indiana remove prior authorization requirements for first time hepatitis C treatment patients and help reduce the threat of further health complications and liver cancer,” said Robert Greenwald, Clinical Professor of Law at Harvard Law School and the Faculty Director of CHLPI. “We encourage all payors and providers to immediately implement the new policies to help improve public health outcomes, especially amid the ongoing coronavirus pandemic.”

Prior authorization is a process whereby health care providers must get advance approval before a payor will decide whether to cover a medication or service. When the State of Hep C first started tracking prior authorization restrictions in state Medicaid programs for hepatitis C treatment in 2017, both Wisconsin and Indiana used criteria to determine whether patients qualified for hepatitis C treatment, such as requiring a period of sobriety or advanced liver damage. However, the midwestern states have steadily been improving access to hepatitis C care for Medicaid beneficiaries and the latest removal of prior authorizations has consequently increased Wisconsin and Indiana’s Hepatitis C: State of Medicaid Access score to A+.

For more information about hepatitis C treatment access barriers, please visit

Webinar Review: “Exploring Global Policy Solutions to Increase Food Donation and Support Food Recovery During the COVID-19 Pandemic and Beyond”

This post was written by FLPC Research Assistant, Regan Plekenpol.

The Harvard Law School Food Law and Policy Clinic (FLPC), in partnership with The Global FoodBanking Network (GFN), hosted the first-ever virtual convening to discuss policy strategies for strengthening food donation operations during the novel coronavirus (COVID-19) pandemic and beyond. This was the first in a series of webinars organized under the Global Food Donation Policy Atlas project, a joint partnership between FLPC and GFN, with support from the Walmart Foundation. Featuring select government policymakers and food donation experts from around the world, this webinar series creates a space for dialogue on innovative legal and policy solutions to food loss, waste, and food insecurity.

In just the first few months of the COVID-19 pandemic and resulting economic downturn, the Food and Agriculture Organization of the UN warned that a “looming food crisis,” would likely occur without appropriate government interventions to mitigate hunger. Countries around the world witnessed record-breaking demand at food banks, as unemployment rates quickly rose, and the threat of food insecurity became a reality for far too many. At the same time, global trends indicated that food banks—an essential social net—were often excluded from national emergency response plans. This exclusion, along with protectionist policies and other supply chain disruptions, ultimately undermined the potential impact of food donation operations to assist those in need. In June 2020, FLPC and GFN published an issue brief, Strengthening Food Donation Operations During COVID-19, recommending strategies for government policymakers to more effectively leverage food donation operations as a solution to rising hunger and food insecurity amidst the pandemic.

More than six months after publishing this brief, FLPC and GFN invited select government officials and representatives from food recovery organizations to provide an updated account of government coordination with food donation operations. Moderated by Ertharin Cousin, CEO and Founder of Food Systems for the Future, the forum centered around myriad ways that governments have integrated food donation as part of their emergency response. From enhanced civic engagement, to emergency government funding, to multi-stakeholder partnerships, panelists shared a range of policy and legal reforms that have enabled more efficient, equitable distribution of food during the global crisis.

Some highlights of successful policy adoption and implementation included those shared by the keynote speaker of the event, Honourable Marie-Claude Bibeau, Canada’s Minister of Agriculture and Agri-food. The Minister explained the collective vision outlined in the new Food Policy for Canada, which permitted government agility in allotting critical funds to food security organizations and adjusting food systems to shifting needs of citizens and suppliers. Dr. Jean C. Buzby, Food Loss and Waste Liaison at United States Department of Agriculture, further underscored the importance of government support for food recovery and donation, highlighting critical U.S. federal efforts to relieve pandemic pressure on food banks and distribute food through the Farmers to Families Food Box Program and The Emergency Food Assistance Program (TEFAP). Brianna Casey, representing the Australian government’s National Coordination Group, enumerated several examples of collaborative governance among multi-stakeholder, public-private partnerships that allowed for a rapid and dynamic response to the pandemic. Dr. Heena Yadav from India’s Food Safety Standards Authority echoed the importance of cross-sectoral cooperation, emphasizing that such partnerships were especially critical for small-scale food distribution organizations experiencing  unprecedented demand.  

Other panelists impressed the importance of strategic policy mechanisms to position food recovery and donation as a solution to food loss and waste—an issue that has worsened due to supply chain disruptions during the pandemic. Manuela Cuvi, from the FAO Regional Office for Latin America and the Caribbean, presented valuable resources developed by the FAO to support country efforts to address food loss and waste, in particular, Voluntary Codes of Conduct on Food Loss and Waste Reduction and a regional legislative study of food loss, waste, and donation laws in Latin America and the Caribbean. Emphasizing the benefits of such legislation, Natalia Basso, who coordinates the implementation of the National Plan to Reduce Food Loss and Waste in Argentina, highlighted a 2018 liability protection amendment to Argentina’s Food Donation Law (Régimen Especial para la Donación de Alimentos) and a recent policy regulating private sector food waste; each of these interventions significantly contributes to food security and food donation.

Komla Prosper Bissi, representing the African Union, further recognized the detrimental impact of the pandemic on efforts to prevent and reduce food loss. Representative Bissi explained that while African leaders are committed to a 50% reduction in food loss and waste by 2025 pursuant to the UN Sustainable Goal (SDG) 12.3, progress has been disrupted by market lockdowns, transportation limitations, border processes, and other COVID-19 effects. Policy solutions that promote food donation as both a solution to food insecurity and food loss and waste may help countries recover lost-momentum towards this and other SDGs.

Troels Mandel Vensild, Minister Counsellor of Food, Agriculture, and Fisheries in the Embassy of Denmark, argued that civic engagement can also be an innovative strategy to motivate food donation and food waste reduction, heralding the power of incentives, partnerships, and informational campaigns as complements—or even alternatives—to legislation. The Stop Wasting Food movement and the upcoming World Food Summit hosted annually in Copenhagen are examples of such creative and engaging measures

These various remarks demonstrated not only that the pandemic has exacerbated food system challenges contributing to food loss, waste, and food insecurity, but also that these challenges are shared across geopolitical borders. Understanding best practices for addressing these issues deployed in other countries may help inform a more holistic, global approach to both short-term pandemic responses and to long-term efforts to repair disrupted food supply chains. FLPC and GFN welcome the continuation of a critical and open conversation in the upcoming sessions, which focus on Exploring the Role of Liability Protection in Facilitating Increased Food Donation, and The Impact of Date Labeling on Food Waste, Food Recovery, and Donation.  FLPC invites government officials and policymakers from international and multilateral organizations to reach out for further information at

USDA’s New Guideline for Donating Meat and Poultry: A Positive Step Towards Reducing Food Waste

Written by, Nicholas Hanel and Ata Nalbantoglu, FLPC clinical students

In a recent push to promote the donation of food to prevent safe, edible food from going to waste, in December 2020 the USDA’s Food Safety Inspection Service (FSIS) published a draft Guideline to encourage the donation of meat and poultry products. The draft Guideline,  “FSIS Guideline to Assist with the Donation of Eligible Meat & Poultry Products to Non-Profit Organizations” (docket no. FSIS-2020-0030), streamlines the food donation process for both food producers and recipient non-profits, presenting a welcome update to clarify the application to food donation of the often-confusing web of USDA regulations. As FLPC has reported elsewhere, guidance like this is a much-needed step to clarify the food safety best practices and regulations that apply to donation, making donation of safe, edible food easier for everyone involved. By issuing clarifying guidance to demystify safety regulations that apply to food donation, FSIS is helping to enable donors to donate food with confidence that they are complying with USDA regulations, ultimately reducing the waste of perfectly healthy and safe foods. FLPC recently submitted comments commending FSIS on this important and useful Guideline, and sharing several specific suggestions for FSIS to strengthen elements of the Guideline.

Overall, the Guideline does an excellent job of promoting food donation. The Guideline facilitates food donation by promoting the message that food is generally able to be donated unless there is a specific safety concern, streamlining the process for donating misbranded and economically adulterated foods, and clarifying that voluntary date labels are not indicators of food safety and thus that food past such date can be donated. However, there are still a few areas that could be clarified further, which will be discussed in Section II of this post.

FSIS’ structure of the Guideline is written in a way that makes it clear that the default rule is that meat and poultry should be eligible for donation, rather than having the default be that food cannot be donated. The Guideline includes only a short list of foods that cannot be donated: namely, if the food is adulterated or is an experimental product. This correctly puts the emphasis on only preventing donation in the case of safety concerns, making things much clearer for interested organizations.

In emphasizing safety, FSIS allows for misbranded or economically adulterated foods to still be eligible for donation. FSIS recognizes that, while selling such foods would be fraudulent, misbranded or economically adulterated foods are still safe to eat. So long as the donor puts on a “Not for Sale” label, these foods may be donated.

Importantly, FSIS’ Guideline also echoes previous guidance published by USDA regarding the use of voluntary date labels. Date labels such as “best if used by” or “sell by” often lead to a large amount of confusion, both amongst consumers and food donors. Contrary to the assumption of many Americans, these labels only indicate freshness or quality, not safety. Some estimates attribute around $2.4 billion in food waste per year as a result of this confusion. In the Guideline, FSIS clarifies that these date labels are largely unregulated, and many products may still be safe to eat even after the date listed. This clarification will help give food donors more confidence that past-date food is still safe and is eligible for donation.

As noted above, FLPC applauds the FSIS’s efforts to facilitate the food donation process through the Guideline. The document is a welcome step and will help both food-donors and recipient non-profit organizations. The document distills some of the most common questions food manufacturers face when dealing with meat and poultry products, identifying which foods can generally be donated. However, the Guideline can be improved even further with certain additions and clarifications.

First, the “Donation Flowchart” in the Guideline can better account for state inspection done in facilities operating under the Cooperative Interstate Shipment (“CIS”) program. The CIS program allows state facilities to meet federal standards and thereby be eligible for interstate donation. Accounting for this fact will make the diagram more accurate.

Second, the Guideline will benefit from providing insight on the Emerson Act. The Guideline offers an excellent opportunity to generate awareness and emphasize existing comprehensive immunity for potential liability stemming from food donations. Unfortunately, many potential donors choose not to donate for fear of legal liability that may occur downstream when a consumer gets sick from the donated products. Although this is unlikely, such fear has been a persistent deterrent in the food donation space. Therefore, including even a brief section on the Emerson Act will alleviate these concerns and help USDA meet its duty to raise awareness of the Act.

Third, the Guideline will benefit from clarifying the guidance on custom meat processing and slaughter. State and local authorities play critical roles in custom meat processing/slaughter, and the Guideline should acknowledge this current practice. Recognizing the landscape in custom meat processing will help avoid confusion and potential jurisdictional concerns. Also, since game meat technically is under FDA’s jurisdiction, the table under custom meat processing/slaughter should be more equivocal on whether facilities can donate such foods to account for possible FDA regulations, in addition to any state laws.

FLPC’s comment is wholeheartedly supportive of both the effort FSIS has taken to draft this Guideline, and with the overall message and content of the Guideline.

SCOTUS Review of Medicaid Work Rules Hinges on Trump-Era Letter

Originally posted on Bloomberg Law on February 17, 2021 and written by Christopher Brown

The Trump administration’s eleventh-hour attempt to preserve Medicaid work requirements and circumvent President Joe Biden’s plan to rescind them hinges on the question of whether the effort amounted to guidance or binding contracts, legal analysts say.

At issue are letters former Centers for Medicare & Medicaid Services Administrator Seema Verma sent to states in January to keep Medicaid waivers in effect for nine months after any government movement to rescind them. Verma’s move is seen as an attempt to keep the work requirements alive until the Supreme Court can rule on their validity in a case it will hear in March. Some of these waivers allow states to require recipients of the low-income health program to work as a condition of coverage.

Acting CMS Administrator Elizabeth Richter on Friday notified those states that the Verma letters are rescinded, citing the current administration’s need for flexibility in responding to the Covid-19 pandemic and its need to maintain oversight in the Medicaid waiver program.

Democrats and low-income advocacy groups say work requirements reduce poor adults’ chances of getting health coverage. Biden’s Jan. 28 executive order directed the Department of Health and Human Services to review any Trump administration actions that “may reduce coverage under or otherwise undermine Medicaid,” including demonstration and waiver policies. Richter’s letter is the first step in that process.

Any attempt by the Biden administration to rescind the waivers could open the door to litigation, particularly if the letters from Verma are considered contracts that are binding on the HHS, rather than guidance it is free to rescind.

The Supreme Court also would be less likely to dismiss its review of the issue—which the Biden administration is expected to request—if there’s an unanswered legal question about whether Verma’s letters can be rescinded, said Thomas Barker, a partner at Foley Hoag LLP in Washington who served as general counsel to the HHS under President George W. Bush.

Twelve states have received approval from the CMS to impose work requirements in their Medicaid programs, and at least five of those states signed the Jan. 4 letters: Arizona, Georgia, Ohio, South Carolina, and Utah.

No work requirements are actually in effect. Federal courts have halted Medicaid work requirements in Arkansas, Kentucky, New Hampshire, and Michigan, saying they don’t further the purpose of the health program—which is to provide coverage.

The high court is slated to hear arguments March 29 over the validity of work requirements in Arkansas and New Hampshire.

At Least Nine Months

The CMS’s rescission of the Verma letter, if it holds up, makes it easier for the agency to take the next step and walk back the work requirement waivers. But it would still be a bold move. It’s “unusual” for a new CMS “to come in and rescind the prior administration’s approvals,” Patricia Boozang, senior managing director of Manatt Health, said.

But Biden’s January executive order “signals that this administration has a different set of policy priorities and really wants to look at prior administration policies that may be presenting barriers to people getting coverage, including Medicaid coverage,” she said.

Standing in the way of that strategy are the Jan. 4 letters, which, if deemed legally valid, could keep the waivers alive until the court rules.

“A [Medicaid] waiver is in many respects just a contract between the federal government and a state,” Barker said. “I suppose you could say that this letter is a contract, and if some states have agreed to it, it’s binding.”

The CMS committed itself in the letters to let the waivers remain for at least nine months after the agency has made a determination that they don’t meet the original purpose of Medicaid. The letters also set forth a hearing and briefing schedule for states that wish to contest a CMS decision to rescind a waiver.

That schedule could give states as long as 19 months of protection for their work requirement plans, according to the National Health Law Program, which filed an administrative challenge asking the HHS to withdraw the letters.

Rep. Frank Pallone (D-N.J.), chairman of the House Energy and Commerce Committee, and Sen. Ron Wyden (D-Ore.), chairman of the Senate Finance Committee, also asked the HHS in January to rescind the letters.

Contract or Guidance

Verma said in the letters that the new procedures are intended to fill in the details of an administrative process that is only laid out in the waivers themselves at “a high level.” But the NHLP says the letters violate the Administrative Procedures Act and create obligations that go beyond—and conflict with—existing regulations.

NHLP also contends that the letters are “guidance” and should be withdrawn because they weren’t exposed to public notice and comment. A rule finalized by the HHS in early December says guidance documents can’t impose new binding requirements, and that “significant” guidance documents must go through a notice-and-comment period.

The letters could keep Medicaid work requirements alive long enough for the Supreme Court to rule, even if they are ultimately found to be without legal force, Barker said.

The Supreme Court will decide whether the D.C. Circuit was right to reject work requirements in Arkansas—a ruling that also applied to New Hampshire’s work requirements. Lower courts found that the HHS failed to consider the impact of work rules on the core objective of the Medicaid program—providing insurance to low income people.

But the high court is likely to view the Verma letters skeptically, according to Phil Waters, a staff attorney at the Center for Health Law and Policy Innovation at Harvard Law School.

“It would be hard for the court to look at these letters and say, ‘Even though there have been two courts that have ruled against you, now you have this letter that was written as the previous administration was on the way out, so you can preserve your waiver,’” he said. “I really don’t think that’s going to hold water.”

New Research Aims to Combat Food Waste, Hunger and Climate Change in Colombia and Peru

New research focuses on the legal landscape in Colombia and Peru and provides tailored policy recommendations for strengthening food donation operations during and beyond the COVID-19 pandemic in response to food waste, hunger and climate change. The Global Food Donation Policy Atlas, produced by the Harvard Law School Food Law and Policy Clinic (FLPC) and The Global FoodBanking Network (GFN) with support from the Walmart Foundation, offers a global examination of laws and policies affecting food donation. The findings on Colombia and Peru build upon earlier research on Argentina, Canada, India, Mexico and the United States.

Food banks worldwide depend largely on product donations to provide food to those facing hunger. Due to the COVID-19 pandemic, many food banks are seeing increases in demand for service. Despite a chronic and growing need for food donations, alarming amounts of safe, edible food are lost or wasted in countries around the world. “It’s more important than ever for policymakers, government agencies, food donors, companies, food banks and the public to understand the impact of unnecessary food waste in their countries and the need to change it,” said Emily Broad Leib, faculty director at FLPC and clinical professor of law at Harvard Law School. “The Global Food Donation Policy Atlas is the first research study to compare food donation policies and best practices across the world, providing the global perspective countries need to address this complex issue.”

The Global Food Donation Policy Atlas identifies the existing laws and policies that currently support food recovery and donation, featured in a comprehensive Legal Guide, and Policy Recommendations for strengthening frameworks and adopting new measures to fill existing gaps. The analysis featured in these country-specific reports are also encapsulated in an interactive atlas tool, that allows users to compare policies between countries participating in the project. The research focuses on six legal issues that influence food donation: food safety for donations, date labeling, liability protection for food donations, tax incentives and barriers, government grants and funding, and food waste penalties or donation requirements. For each country, FLPC developed recommended actions intended to help bolster the efforts that are already underway to promote food donation. They were developed through a combination of desk research and in-country dialogues with stakeholders, including those leading food bank operations in the country.

“The COVID-19 pandemic is unlike any situation we have ever experienced before. Food bank organizations in our network are struggling to meet demand and get food to those who need it most,” said Lisa Moon, president and CEO of GFN. “This project is extremely timely as it provides a roadmap for organizations and shines a light on global food system challenges for policymakers.”

“Walmart Foundation has a long-standing commitment to increasing access to healthier foods in communities around the world and we are pleased to support the Global Food Donation Policy Atlas because of its potential to accelerate effective and sustainable solutions,” said Eileen Hyde, director of Sustainable Food Systems and Food Access for “This project provides not only groundbreaking research to address the complexity of public policy relating to food donations but it also presents clear opportunities to improve how surplus food gets to communities that need it.”

Legal guides, policy recommendations, and executive summaries are available in English and Spanish for Colombia and Peru. FLPC will release additional reports for Chile, Costa Rica, Dominican Republic, France, Guatemala, Singapore, South Africa, and the United Kingdom later this winter. All resources, including research published for Argentina, Canada, India, Mexico and the United States, as well as an interactive map to compare food donation laws and policies across countries, are accessible at


FLPC Partner the Delta Directions Consortium Releases Summary of Collaborative Pathways

Since its founding, the Food Law & Policy Clinic has been a member of the Delta Directions Consortium (DDC), an interdisciplinary network of individuals, academic institutions, non-profit organizations, and foundations that work together to create positive social change in the multi-state Mississippi Delta Region. This partnership is also foundational to student work completed through the Mississippi Delta Project, a Harvard Law School Student Practice Organization that FLPC supervises.

Last week, DDC released a Summary of Collaborative Pathways, a document outlining the substantive areas of focus, projects, and methods of collaboration that drive DDC’s activities, as well as an approach centered on partnership, education, and sharing our work. It provides a useful introduction and framework for understanding DDC and identifying opportunities for collaboration with our members.

Please follow the link to read Delta Directions Consortium (DDC): Summary of Collaborative Pathways.

Radon Poses Major Health Risk to Communities Across U.S., New Report Says State Governments Must Act

Harvard Center for Health Law and Policy Innovation and Maine Lung Cancer Coalition identify policy solutions for states to mitigate harmful radon exposure.

Across the United States, a dangerous, natural gas rises from the ground and permeates through homes, schools, residential facilities, and other buildings where people live, work, and learn. This gas–radon—is the second leading cause of lung cancer in the United States and results in an estimated 21,000 lung cancer deaths each year, according to the Environmental Protection Agency (EPA). A new report by Harvard Law School’s Center for Health Law and Policy Innovation (CHLPI) and Maine Lung Cancer Coalition (MLCC), released during National Radon Action Month, highlights how state laws and policies can reduce radon’s deadly effects, yet often do not.

The new report, titled Radon Risk Reduction: A Fractured Policy Landscape, analyzes results of a 50-state survey of laws and policies that address radon, highlights inequities in radon exposure, and identifies policy solutions to support stronger and more equitable radon risk reduction programs. Among the report findings is a clear illustration of the ways in which radon disproportionately negatively impacts low-income communities or those with less agency over where they live, such as people in assisted living facilities, youth in group homes, and people who are in prison.

“Like other environmental hazards that impact health—exposure to lead, water pollution, and air quality, to name a few—radon poses a major threat to public health and health equity,” said Robert Greenwald, Faculty Director for CHLPI. “Radon disclosure, testing, and mitigation laws vary widely from state to state, leaving many people unaware of the health risks they are facing and unable to address radon exposure due to lack of resources. Our report outlines how state government actors can fill the gaps in our fractured radon policy landscape and use sound policy to protect our communities.”

The new analysis also finds that policy responses to radon do not often correlate with the actual geographic risk of radon. Some states with very high average levels of radon lack key components of a comprehensive response. The average indoor radon levels in Maine, for example, are comparatively high. While state laws in Maine address some aspects of testing and disclosure, there are no requirements regarding actual mitigation. Health care professionals in the Maine Lung Cancer Coalition are working to fill these crucial gaps.    

“We are pleased to collaborate with the team at CHLPI on this important work, which will inform the Maine Lung Cancer Coalition’s radon policy and education efforts in our state,” said Neil Korsen, a Physician Scientist at the Center for Outcomes Research and Evaluation at Maine Medical Center and Principal Investigator for the Maine Lung Cancer Coalition. “We look forward to working with our partners throughout Maine to inform the public and policymakers about radon, the number two risk factor for lung cancer, and to reduce barriers to disclosure, testing and mitigation.”

Virtually all states have room for improvement. CHLPI and MLCC identify core components of a model radon regulatory program, including disclosure requirements so that the public is aware of the radon risks around them, radon testing requirements for all publicly-owned and many privately-owned buildings, required mitigation systems for elevated radon levels, and testing and mitigation support for communities where cost is a barrier.

“Not only will better policies save lives, but they will also reduce the prevalence of lung cancer and protect those who can’t protect themselves,” said Sarah Downer, Associate Director of Whole Person Care at CHLPI. “Our model policies offer states solutions that prioritize the needs of all residents, including low-income communities and those whose living conditions depend on public or private entities. We urge state governments to take action now and protect their residents from dangerous radon exposure.”

The report, Radon Risk Reduction: A Fractured Policy Landscape, is available online at:

New Analysis Finds USDA Program Can Support Farmer Viability and Alleviate Food Insecurity Both During and Beyond COVID-19 Crisis

Harvard’s Food Law and Policy Clinic and the National Sustainable Agriculture Coalition released recommendations to strengthen USDA’s Farmers to Families Food Box Program.

Rates of food insecurity and threats to farmers’ livelihoods have increased sharply since the COVID-19 pandemic began. However, the United States has long faced a crisis in which too many Americans go hungry and small and mid-size farmers struggle to make ends meet. With funding from Congress, in April 2020 the U.S. Department of Agriculture (USDA) launched the Farmers to Families Food Box Program as part of the Coronavirus Food Assistance Program. According to a new report by Harvard Law School’s Food Law and Policy Clinic (FLPC) and the National Sustainable Agriculture Coalition (NSAC), the Farmers to Families Food Box Program (the Program) has accomplished much and can serve as a model for future USDA fresh food purchasing and distribution efforts. However, the Program also faces several critiques. Key improvements could help the Program – and future programs modeled on it – to achieve their full potential.

Through the Farmers to Families Food Box Program, USDA’s Agriculture Marketing Service (AMS) contracts with farms, farmer associations, and distributors to purchase and distribute food—fresh produce, dairy, and meat—to nonprofit organizations, such as food banks. The Program has helped to keep farmers and distributors afloat during the pandemic and has distributed millions of food boxes to help alleviate hunger. There is, however, room for improvement. Based on interviews with more than 30 stakeholders from across the food system, FLPC and NSAC highlight opportunities to make the Program more equitable and effective in their new report, An Evaluation of the Farmers to Families Food Box Program.

“The Farmers to Families Food Box Program is unique in its role to support both farmers and people who lack the resources to access the food they need,” said Professor Emily Broad Leib, Faculty Director for the Food Law and Policy Clinic (FLPC). “However, there is tremendous potential for USDA to make changes to support more small- and mid-size farms and farms owned by women and people of color; better alleviate hunger; and mitigate senseless food waste. Our report offers recommendations to strengthen the Program accordingly. It is critical for USDA to address these issues as our economy struggles amid COVID-19; further, with changes, this Program also could serve as the model for a long-term food system solution.”

FLPC’s and NSAC’s report lists eight recommendations for USDA to improve the Farmers to Families Food Box Program. Among those recommendations is a call for clearer messaging and steps taken to ensure priority subcontracting with small- and mid-sized, and minority- and women-owned farms, and that distribution targets minority-led nonprofits. The report also includes several additional recommendations that apply lessons from the Program to other USDA purchasing and distribution efforts and recommendations to address the issue of food waste in the U.S. beyond the Program.

“USDA’s swift implementation of the Farmers to Families Food Box Program provided many small farmers and food hubs with a desperately needed lifeline amidst the pandemic,” said Wes King, Senior Policy Specialist at the National Sustainable Agriculture Coalition (NSAC). “However, changes made to the program as it evolved had the unintended consequence of depriving the small, mid-sized, minority- and women-owned farms and food hubs with continued support through the program. It’s critical that in future iterations of the program the USDA threads the needle in a way that alleviates hunger while also supporting the diversity that encompasses the full diversity of American Agriculture.”

An Evaluation of the Farmers to Families Food Box Program is available online at: An Executive Summary of the report is also available online at:

FLPC Releases An Evaluation of the Farmers to Families Food Box Program

In April 2020, the USDA announced it would use funds and authority under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) as well as other existing USDA funding to launch a new $19 billion federal program, called the Coronavirus Food Assistance Program (CFAP). The USDA designated $3 billion of CFAP funding to the Farmers to Families Food Box Program (Program) to purchase and distribute fresh produce, dairy, and meat. The Program aimed to address some of the supply chain and market disruptions in the agriculture and food service industries resulting from the pandemic. Through this Program, the Agricultural Marketing Service (AMS) of the USDA contracted with farms, farmer associations, distributors, and other value chain entities to purchase agricultural products from farmers and processors and for those contracted entities to distribute this food to nonprofit entities, such as food banks and faith-based organizations, to serve Americans in need.

Today, we released An Evaluation of the Farmers to Families Food Box Program, which provides an in-depth analysis of the Program that celebrates its successes, analyzes its critiques, and provides recommendations on areas of opportunity for improvement.

The report is designed to provide the USDA with an analysis of the Program and to offer recommendations on how to improve its effectiveness. Our analysis focuses on three specific goals the Program was set up to tackle: support of farmers, specifically small- and mid-sized and minority- and women-owned farms; alleviation of food insecurity; and mitigation of food waste. Most of the recommendations herein are strategies the USDA can use to adjust the Program, should it continue beyond the conclusion of Round Five in April 2021, or be a model for the future. Also included are recommendations to both the USDA and Congress to further address food waste, food insecurity, and the support of small- and mid-sized and minority- and women-owned farms beyond the scope of the Program, in a post-pandemic world.

The full report can be viewed at: An executive summary can be viewed at: