United States of Care: Bipartisan Leaders Launch New Health Care Reform Organization

Over 50 bipartisan health care leaders, including many former elected and appointed federal and state officials, have launched a new non-profit organization called the United States of Care to support continued health care reform, including former Health and Human Services Secretary Mike Leavitt and former Centers for Medicare and Medicaid Services (CMS) Administrator Mark McClellan under President George W. Bush, former Health Care Financing Administrator Gail Wilensky under President George H. W. Bush, former Republican Senate Majority Leader Bill Frist, former Vermont Governor Jim Douglas (Republican); and former Office of Management and Budget Director Peter Orzag, Senior Health Care Advisor Chris Jennings, and former Acting CMS Administrator Andy Slavitt under President Barack Obama, former Democrat Majority Leader Tom Daschle, and former Kentucky Governor Steve Beshear (Democrat).

The mission of the organization is “to lead a movement to ensure that every single American has access to quality, affordable health care regardless of health status, social need, or income.” Its three core principles are: 1) every American should have a regular source of affordable care; 2) no American should face financial devastation due to illness or injury; and 3) solutions must be fiscally responsible and have broad political support.

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University of California v. Department of Homeland Security: District Court Orders Temporary Reinstatement of Deferred Action for Childhood Arrivals (DACA) Program

In two written opinions issued last week, the U.S. District Court in Northern California has ordered the temporary reinstatement of the Deferred Action for Childhood Arrivals (DACA) program while pending further litigation. The DACA program was rescinded by President Donald Trump on September 5, 2017, and the University of California; the states of California, Minnesota, Maine, and Maryland; the city of San Jose, the county of Santa Clara and the Service Employees International Union Local 521; and six individual DACA recipients, filed lawsuits challenging the rescission.  The five lawsuits were consolidated and heard together by U.S. District Court Judge William Alsup. (There are additional lawsuits challenging the rescission of the DACA program being litigated in New York and the District of Columbia, with none of those lawsuits yet to reach any decisions.)

In the first order issued last Tuesday, Judge Alsup reviewed the history, beginning in 1975,  of the use of “deferred action” to provide discretionary relief from deportation to both groups and individuals by the Department of Homeland Security (DHS), and the specific establishment of the DACA program by President Obama in 2012. Judge Alsup noted that both Congress and the U.S. Supreme Court had recognized and referred to deferred action status. The Department of Justice (DOJ) had provided its legal analysis that such a program was within the discretionary authority of the DHS to establish immigration enforcement priorities, including who NOT to pursue for deportation. It also is significant that the Secretary of Homeland Security in 2012, Janet Napolitano, is currently the President of the University of California, which is the named lead organizational plaintiff in one of the four consolidated lawsuits being heard by Judge Alsup.

Judge Alsup noted that President Trump’s first Secretary of Homeland Security (now White House Chief of Staff) John Kelly twice reviewed and twice left the DACA program in place while reviewing all immigration policies from the prior administration in February 2017 and in formally rescinding the 2014 Deferred Action for Parents of Americans (DAPA) program in June 2017. There has been extensive litigation already about whether the DHS needed to provide additional documentation to the plaintiffs (and the court) about the rationale for rescinding the program, beyond a short memorandum by current Attorney General Jeff Sessions stating that there was no statutory authority for the program and citing the injunction and subsequent litigation against the DAPA program, which blocked its implementation. The DOJ and DHS resisted such discovery and instead identified but withheld 84 documents from the plaintiffs and the court, claiming executive privilege. The court ordered the DOJ and DHS to provide the documents (which the Ninth Circuit Court of Appeals upheld on emergency appeal) but in an extraordinary ruling in early December, the U.S. Supreme Court overturned that discovery order (with four justices dissenting).

In his opinion and order, Judge Alsup first finds that the court has jurisdiction over the case and that the plaintiffs have standing to bring the legal challenges (except for two states not having standing on one claim). The court then finds that Attorney General Sessions’ memorandum cannot reverse decades of agency practice and policy, recognition by Congress and the U.S. Supreme Court of DHS’ authority to provide deferred action, and the DOJ’s prior legal analysis; and that Sessions had made a “mistake in law”. Judge Alsup also rejects the federal government’s post-hoc rationalization that it was seeking to minimize litigation risks since the states that had successfully challenged the DAPA program had threatened to now challenge the DACA program as well.

Finally, Judge Alsup finds that the plaintiffs are likely to succeed in their argument that the rescission was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law (in violation of the Administrative Procedure Act); that the DACA recipients and plaintiffs would suffer irreparable harms from the implementation of the rescission; and that the balance of equities and public interest favor the plaintiffs. Judge Alsup notes the irony of President Trump’s tweets in support of the DACA recipients, while his administration’s actions have created the harms he tweets against. Accordingly, the court orders the provisional reinstatement of the DACA program, pending full litigation of all the claims, which is unlikely to be completed by March 5, 2018, when current DACA recipients would begin to lose their protection from deportation and work authorizations.

In a follow-up order issued last Friday, Judge Alsup dismissed some claims and is ordering further litigation on the remaining claims (denying the federal government’s motion to dismiss those claims). In this second order, Judge Alsup relies even more explicitly on the President’s statements and tweets as relevant to the litigation, including as evidence of impermissible racial animus towards Mexicans (who are 93 percent of DACA recipients), which would support the plaintiffs’ claims of racial discrimination in violation of the equal protection clause of the Fourteenth Amendment.

The Trump administration has yet to file an appeal, or seek a stay, of these district court orders at the Ninth Circuit Court of Appeals (and all the way to the U.S. Supreme Court), but it is certain to do so (the district court itself identifies a number of issues that would be subject to appeal).

Meanwhile, on Saturday, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume acceptance of renewals of DACA status (for those whose status had technically lapsed after the September 5 rescission announcement), but would not be accepting any new applications for the DACA program. The announcement is also available on the USCIS website in Spanish.

Given the ongoing Congressional proposals and negotiations about the status of DACA recipients and President’s Trump’s racist statements about Haitians and Africans on Thursday, there will continue to be more developments about the future of these hundreds of thousands of young immigrants.

 

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Centers for Medicare and Medicaid Services: Nearly 9 Million Americans Obtained Health Insurance in Shortened Open Enrollment Period

The Centers for Medicare and Medicaid Services (CMS) has released preliminary data on the recently-concluded shortened open enrollment period for Americans to obtain health insurance through the health insurance marketplaces established by the Affordable Care Act: over 8.8 million Americans will now be insured in 2018, including nearly 2.4 million Americans who did not use the marketplace in 2017. These numbers are particularly impressive given the shortened 7-week open enrollment period, a 90% reduction in marketing and outreach activities, a 41% reduction in contracts for community navigators to assist individuals with the enrollment process, and the continued political attacks on the ACA by the White House and political appointees at the U.S. Department of Health and Human Services who are statutorily charged with implementing the law.

Not surprisingly, the press release issued by CMS downplays the number of Americans benefitting from the ACA-established health insurance marketplace, and instead focuses on the cost savings in reducing the expenditures on marketing and outreach, and highlights data on wait times to the call center.

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Congressional Budget Office: Repeal of Individual Mandate in Tax Reform Bill Would Result in 13 Million Americans Becoming Uninsured

The Congressional Budget Office (CBO) has issued this updated analysis of the impact of the repeal of the Affordable Care Act’s individual mandate, which was included in H.R. 1, the Tax Cuts and Jobs Act passed by the U.S. House of Representatives on November 16, 2017. The CBO estimates that the repeal of the individual mandate would result in an additional 13 million Americans becoming uninsured over the next ten years, by the year 2027. Moreover, without a requirement to purchase health insurance, less Americans would do so, and health insurance plans would increase premiums to account for a less healthy overall risk pool (with less healthy, lower cost individuals in the market).  Accordingly, the CBO also estimates that health insurance premiums in the individual health insurance market would increase about 10% each year. Those increases in premiums also will disincentivize Americans to maintain or purchase health insurance, which also will increase the number of uninsured.

The Senate is expected to vote on the tax reform bill sometime this week.

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Congressional Budget Office: Bipartisan Health Care Stabilization Act Would Reduce Federal Deficit by $3.8 Billion

The Congressional Budget Office (CBO) has published its analysis of the Bipartisan Health Care Stabilization Act, co-sponsored by Senators Patty Murray (D-WA) and Lamar Alexander (R-TN). Since the CBO had already done analysis of other legislation that either continued or discontinued the cost-sharing reduction payments to health insurance plans participating in the health insurance marketplaces, there is no new analysis of fiscal impacts from restoring those payments through 2019. However, the provisions in the bill that require states to certify financial benefit to the federal government and consumers from the payments would likely result in some rebates to consumers and lower payments to the health plans. In addition, the provision in the bill that expands the availability of “copper” plans with basic catastrophic coverage (at lower premiums) means lower costs for federal premium subsidies. Accordingly, the CBO also estimates that, over ten years, the bill would lower federal expenditures and reduce the federal deficit by $3.8 billion.

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Text of Bipartisan Health Care Stabilization Act

Here is the text of the Bipartisan Health Care Stabilization Act, co-sponsored by Senators Patty Murray (D-WA) and Lamar Alexander (R-TN), that would appropriate funding for cost sharing reduction (CSR) reimbursement payments to health insurance plans participating in the health insurance exchanges established under the Affordable Care Act (ACA). A federal district court had agreed with House Republicans in May 2016 that the payments had to be appropriated each fiscal year and a federal appeals court has been waiting for the Trump administration to formally reverse its position in the litigation since the Obama administration had defended the legality of continuing to make the payments without annual appropriations. On October 12, the Trump administration finally announced that reversal in legal position and that it would no longer make those payments, effective immediately. California, 17 other states, and the District of Columbia have requested a federal court injunction to continue the payments.

The Murray-Alexander bill is also sponsored by Senators Tammy Baldwin (D-WI), Richard Burr (R-NC), Tom Carper (D-DE), Bill Cassidy (R-LA), Susan Collins (R-ME), Bob Corker (R-TN), Joe Donnelly (D-IN), Joni Ernst (R-IA), Al Franken (D-MN), Lindsey Graham (R-SC), Charles Grassley (R-IA), Maggie Hassan (D-NH), Heidi Heitkamp (D-ND), Johnny Isakson (R-GA), Angus King (I-ME), Amy Klobuchar (D-MN), Joe Manchin (D-WV), John McCain (R-AZ), Claire McCaskill (D-MO), Lisa Murkowski (R-AK), Mike Rounds (R-SD), and Jeanne Shaheen (D-NH).

The bill would provide funding for the CSR payments through 2019 , and states accessing the payments would be required to certify that both health care consumers and the federal government are financially benefiting from the payments of the CSRs that are made to health insurance plans participating in the ACA health insurance marketplaces, to avoid the criticism that the payments are “bailouts” to the health plans. Most health economists agree that the CSRs keep more Americans insured by making health insurance more affordable, which expands the overall risk pool of insured, which allows the health plans to keep premiums and cost-sharing lower. Conversely, without the CSRs, more Americans would become uninsured because they could not afford the premiums and cost-sharing, with shrinks the risk pool, which results in higher premiums and cost-sharing for the remaining insured, and more Americans needing the ACA tax credits to pay for those higher premiums (which results in a net increase in federal spending rather than any savings).

In a direct legislative override of President Donald Trump’s executive actions, the bill also would require that the Department of Health and Human Services (HHS) engage in outreach and education activities to support enrollment in the ACA’s health insurance marketplaces, and to report back to Congress about those activities. The Trump administration is reducing the amount spent on these outreach activities by 90% when the fifth, much shortened, open enrollment period (for health plan coverage year 2018) begins on November 1 (and ends on December 15), with the federal website unavailable for 12 hours every Sunday evening, when many applicants would ordinarily be using the website.

The bill also would make numerous amendments to section 1332 of the ACA, which allows “waivers” to states to implement alternate health insurance rules, as long as levels of coverage and affordability are maintained. The amendments would provide more flexibility than the original ACA (for example, to use a ten-year period to show cost neutrality rather than having to demonstrate cost neutrality every year) and would streamline and expedite the review, approval, renewal of such waivers.

The bill also would expand the availability of so-called “copper” level, or catastrophic coverage plans with lower premiums (since they provide only catastrophic coverage), and would instruct HHS to issue regulations about selling health insurance products “across state lines”, a favorite proposal of many Republicans (that ironically, almost all national, regional, and state health plans have never requested, or supported).

The bill does not reference any specific sources of federal revenues for the CSR payments; presumably since section 1332 waivers would still have to be cost-neutral, there would be no additional costs from expanding the number or types of those waivers.

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The Senate Health, Education, Labor, and Pensions Committee has prepared this section-by-section summary of the bill:

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A vote on the bill has yet to be scheduled in the Senate.

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Centers for Medicare and Medicaid Services: Understanding Communication and Language Needs of Medicare Beneficiaries

This issue brief from the Centers for Medicare and Medicaid Services (CMS) describes the communication and language needs of Medicare beneficiaries. CMS conducted an analysis of the 2014 American Community Survey (ACS) Public Use Microdata Sample (PUMS) data to explore details about Medicare beneficiaries with limited English proficiency, as well as beneficiaries with visual and hearing disabilities who may also require communication assistance services. The ACS collects data on self-reported English proficiency, and self-reported hearing and vision impairment.

In the ACS, limited English proficiency is assessed through a series of questions, starting with: “Does this person speak a language other than English at home?” If the answer is “yes”, they are asked, “How well does this person speak English?” Answer options are “Very well”, “Well”, “Not well”, or “Not at all”. Individuals responding other than “Very well” are considered limited English proficient, especially when communicating about potentially complex issues such as health care, when precise vocabulary and understanding is vital. However, CMS also analyzed data for individuals who report that they speak English either “Not at all” or “Not well” to try to focus on those that might be in the greatest need for language assistance services. The ACS does not include questions about whether or how well a person reads English.

Visual and hearing disabilities are assessed in the ACS with the following questions: “Is this person blind or does he/she have serious difficulty seeing even when wearing glasses?” and “Is this person deaf or does he/she have serious difficulty hearing?” Visual and hearing disability questions in the ACS do not include a ranked scale to assess extent of disability.

The ACS data serves only as a proxy for understanding the scope of need for language and communication assistance services among Medicare beneficiaries in health care settings. Although it does not include questions specific to health care settings, it provides a nationally and regionally representative sample of the size of the self-reported limited English proficiency, blind and low vision, and deaf and hard of hearing Medicare population.

According to the 2014 ACS, there are more than 52 million Medicare beneficiaries in the United States. Over 4 million or 8% of these 52 million beneficiaries self-reported limited English proficiency  n=4,087,882; 7.7%). 57% of Asian Medicare beneficiaries, 49% of Hispanic beneficiaries, 27% of Native Hawaiian and other Pacific Islander beneficiaries, and 11% of American Indian/Alaska Native beneficiaries self-reported limited English proficiency. Nationally, over half (n=2,112,135, 52%) of the limited English proficient Medicare beneficiaries spoke Spanish at home (as their primary language). The next most common spoken languages nationally were Chinese, Vietnamese, Tagalog Korean, Russian, Italian, and French Creole.

The percentage of Medicare beneficiaries with limited English proficiency also ranges widely across states, with the highest percentages in California (22%), Hawaii (19%), New York (16%), Texas (13%), New Jersey (12%), Florida(12%), Massachusetts (11%), New Mexico (10%), and Rhode Island (10%). There is great variation across states with regards to the most common languages other than Spanish, and these differences largely reflect variations in immigrant and Native American populations. For instance, in California, the most common languages after Spanish are Tagalog, Chinese, and Vietnamese; and in New York they are Chinese, Russian, and Italian. In New Mexico, however, the most common languages after Spanish include Navajo, Zuni, and Keres. An appendix to the report lists the most languages spoken in each state by Medicare beneficiaries.

The ACS data can also be analyzed at more granular city and county levels, which helps identify where language assistance services might most be needed. For example, in Michigan, although the most commonly spoken language after English is Arabic at both the state and local level, Romanian is the second most commonly spoken language in Dearborn, though it is not even within the top 15 commonly spoken languages other than English for the state of Michigan as a whole. Hindi and Hungarian are similarly spoken in Dearborn but not commonly spoken throughout the state of Michigan. If providers in Dearborn only post taglines in the top 15 languages other than English spoken in the state of Michigan, they could very well neglect the needs of their Romanian, Hindi, and Hungarian speaking beneficiaries and expend resources on languages that are rarely spoken in their community. Further, providers and health care organizations could miss an important opportunity to improve the coordination and delivery of care, and population health outcomes within their local community. As a result, awareness of differences like these are important for providers and organizations to ensure compliance with laws and equitable care for future and beneficiaries.

Just under 8% of the Medicare beneficiaries self-reported that they were blind or have low vision (n=4,077,447, 7.7%). American Indian and Alaska Native Medicare beneficiaries self-reported over twice the prevalence of being blind or having low vision (15%), compared to other ethnic and racial groups.The percentage of Medicare beneficiaries self-reporting that they were blind or have low vision also ranges across states, with the highest percentages in West Virginia (12%), District of Columbia (11%), Mississippi (11%), Oklahoma (10%), Alaska (10%), New Mexico (10%), Kentucky (10%) and Texas (10%). As a state, California has a blind and low vision prevalence among Medicare beneficiaries of approximately 7%, just below the national average, but northeast Merced County has visual impairment rates among beneficiaries of more than 26%. An endnote lists the local areas with the highest percentage of Medicare beneficiaries self-reporting that they were blind or have low vision.

Nearly 15% of Medicare beneficiaries self-reported that they were deaf or hard of hearing (n=7,733,886, 14.7%). Medicare beneficiaries who are American Indians and Alaska Natives self-reported the greatest percentage of being deaf or hard of hearing(20%), followed by Whites (16%), Native Hawaiians or other Pacific Islanders (15%). and Hispanics (13.5%). The percentage of Medicare beneficiaries self-reporting that they were deaf or hard of hearing ranged from Alaska (21%), New Mexico (19%), West Virginia (19%), North Dakota (19%), Oklahoma (19%), Idaho (19%), Oregon (18%), Arkansas (18%), Kentucky (18%) Wyoming (18%), Washington (17%, and South Dakota (17%).  While the percentage of residents in New Mexico reporting that they are deaf or hard of hearing is one of the highest nationally, there was an even higher percentage of Medicare beneficiaries self-reporting that they are deaf or hard of hearing in northwest New Mexico, in the Navajo Nation (28%). Some parts of southern Miami-Dade County have rates of over 30% Medicare beneficiaries self-reporting that they are deaf or hard of hearing. An endnote lists the local areas with the highest percentage of Medicare beneficiaries self-reporting that they were deaf or hard of hearing.

Estimates such as those discussed throughout this report may be useful for providers and health care organizations as they work to understand the communication and language needs of the community in which they practice. They can also be helpful as providers and health care organizations work to identify those languages most commonly spoken in their communities and develop language access plans where their approach is laid out to ensuring meaningful access and providing communication and language access services for those patients and consumers who are eligible to be served or likely to be encountered.

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Centers for Medicare and Medicaid Services: How Healthcare Providers Meet Patient Language Needs

This issue brief from the Centers for Medicare and Medicaid Services describes how health care providers are identifying and responding to the language needs of their patients who speak languages other than English, or are limited English proficient (LEP). The issue brief reports the findings from an online survey conducted by Medscape in 2013, completed by over 4,700 health care providers. This was a convenience sample of Medscape users, about half being nurses and 40% being physicians. Nearly 90% of the respondents were involved in direct patient care. Nearly half practiced in a hospital or hospital-based physician practice and about 20% practiced in a private practice.

Less than one-third of the respondents ask about patient language needs at intake and less than 10% track language needs in patient medical records. A full 16% of the respondents did not know how they assessed or planned for the language needs of their patients.

Nearly 60% of the respondents used telephonic interpreter services, over 40% used bilingual staff as interpreters, and one-third used on-site (in-person) trained interpreters. However, nearly 40% asked the family members of patients to act as untrained interpreters. Over half of the respondents in private practice asked the family members of patients to act as untrained interpreters. While over 80% of respondents practicing in acute care hospitals used telephonic interpreter services, only one-quarter of respondents in private practice used telephonic interpreter services.

These findings suggest the importance of continued emphasis on equitable care for individuals with limited English proficiency, and education around strategies and best practices to meet their needs.

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International Refugee Assistance Project v. Trump: Preliminary Injunction Against Third Executive Action Banning Immigration and Travel from Muslim-Majority Countries

A second federal district court (in Maryland) has issued a nationwide injunction against the implementation of the latest (third) executive action by President Donald Trump on September 24, 2017 (and scheduled to go into effect today, October 18), banning travel from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. This memorandum opinion concludes that the latest executive action continues to be motivated by an unconstitutional discrimination against Muslims. The district court continued to reference statements and tweets by President Trump after the issuance of his second, revised executive order as evidence that his original campaign pledge and intent to implement a “Muslim ban” based on religious anti-Muslim animus, remained the rationale for this latest executive action, not the pretext of the proffered evidence of a review of the national security issues in each country.

The injunction does not include the ban on travel and immigration from North Korea and Venezuela, two countries added to the list of banned countries in the third executive action since the the number of nonimmigrant and immigrant visas granted to citizens of North Korea are negligible (less than 100 individuals) and the third executive action only applies to government officials and their families from Venezuela, an exclusion that is permissible in the usual expansion and contraction of diplomatic visas as part of U.S. foreign policy.

It is expected that this latest decision will be appealed by the Trump administration to the Third Circuit Court of Appeals, and if not overturned by that appellate court, back to the U.S. Supreme Court.

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Hawaii v. Trump: Injunction Against 3rd Executive Action Banning Immigration and Travel from Muslim-Majority Countries

The federal District Court in Hawaii has enjoined the third version of President Donald Trump’s executive actions banning immigration and travel from Muslim-majority countries, which was to go into effect on October 18.  Although this third version was based on additional review and findings by federal departments and agencies, U.S. District Court Judge Derrick Watson found that the conclusions from that review were inconsistent, and insufficient to overcome the often-repeated campaign pledge of then candidate Trump to ban Muslims from the U.S. The court continued to reference tweets by the President about the litigation about the second executive order, which had been enjoined by this court and another court in Maryland, as the true intent of these executive actions, undermining the legal rationales being argued in court.

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