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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Deputy Secretary of Health and Human Services Eric Hargan Named Acting Secretary

On October 10, 2017, President Trump named recently-confirmed Deputy Secretary of Health and Human Services (HHS) Eric D. Hargan as Acting Secretary. According to the White House press release announcing his nomination as Deputy Secretary, Mr. Hargan was a partner in the law firm Greenberg Traurig, LLP in its health & Food and Drug Administration business practice, based in Chicago, IL. He earned a B.A. in philosophy from Harvard University, and a J.D. from Columbia University Law School. Mr. Hargan previously served at HHS from 2003-2007 as Deputy General Counsel, as Principal Associate Deputy Secretary, and as Acting Deputy Secretary. In 2014-2015, he served as co-chair and convener of the healthcare and human services transition committee for Illinois Governor Bruce Rauner.  In 2016-2017, he served on President Trump’s transition team for HHS.

Acting Assistant Secretary for Health Don Wright had served as Acting Secretary since the September 29 resignation of Secretary Tom Price. Dr. Wright will resume his role as Acting Assistant Secretary for Health (and director of the Office of Disease Prevention and Health Promotion). It is not clear whether an Acting Deputy Secretary will be named, or whether President Trump will nominate Hagan to assume the Cabinet Secretary role beyond the Acting designation, which would require another Senate confirmation process. On October 4, Hagan was confirmed by the Senate as Deputy Secretary on a vote of 57-38. Democratic Senators Carper, Coons, Donnelly, Durbin, Heitkamp, Manchin, McKaskill, and Independent Senator King joined Republican Senators to confirm Hagan (5 Senators did not vote).

In addition to the Acting Assistant Secretary for Health position, several other Assistant Secretary positions at HHS continue to be held by temporary Acting designations (Financial Resources, Legislation, Planning and Evaluation, and General Counsel), without nominations submitted to the Senate for confirmation. In addition, two operating divisions remain with Acting Administrators (Administration for Children and Families, and Indian Health Service), also without nominations yet submitted.

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U.S. Department of Health and Human Services Abruptly Ends Cost-Sharing Reductions for Millions of Americans

In a memorandum from Acting Secretary of Health and Human Services Eric Hargan (who was just named Acting Secretary three days ago) to Centers for Medicare and Medicaid Administrator Seema Verma, the Trump administration has abruptly ended payments for cost-sharing reductions that assist millions of  low-income Americans (with incomes below 250 percent of the Federal Poverty Level) afford health insurance coverage obtained through the health insurance marketplaces established under the Affordable Care Act.  The payments are made to health plans who offer health insurance through the exchanges, and were ordered ended immediately. Health plans were expecting up to $7 billion in such payments this fiscal year.

Since health plans have relied on these payments in calculating their premiums, this executive action will result in dramatically increased health insurance premiums in the future (premiums for 2018 health plans have already been established, and the shortened month-and-a-half open enrollment for the marketplaces begins in two and a half weeks, on November 1, 2017). This action also will likely result in health plans declining to participate in the marketplaces at all, resulting in less competition, and also pushing premiums higher.

The terse three-sentence HHS directive is accompanied by a legal opinion from the U.S. Department of Justice that agrees with the legal position taken by House of Represetnative Republicans who have sued HHS, claiming that the cost-sharing reductions were “authorized but not appropriated” under the ACA, and therefore cannot be paid without Congressional appropriations under each fiscal year’s budget. Since all parties agree that one solution would be for Congress to appropriate the necessary funds, the executive action now places additional pressure on Congress to include such funding in the federal government appropriations bill for FY2018, which has been deferred to mid-December. Disaster relief for Texas, Florida, and Puerto Rico, President Trump’s tax plan, and the President’s other priorities such as more resources for immigration enforcement, also will make demands on that FY2018  budget.

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Executive Order on Association Health Plans, Short-Term Health Insurance, and Health Reimbursement Arrangementss

As part of his continued opposition to the Affordable Care Act, President Donald Trump signed an executive order today to loosen federal regulations on association health plans, short-term health insurance, and health reimbursement arrangements, all of which will have the effect of further destabilizing the health insurance marketplaces, and result in fewer Americans having access to affordable, comprehensive health insurance. While issuing these directives through an executive order, each of these actions will need to be implemented through future regulatory actions by the Departments of Health and Human Services, Labor, and Treasury, which will take many months to complete, including requesting and responding to public comments of any proposed regulatory changes. These executive actions to undermine the ACA are being taken while Congress has been unable to pass legislation that would either repeal and/or replace the ACA.

Allowing more employers to purchase association health plans will allow more employers to avoid purchasing health plans regulated under the ACA, which require a uniform set of “essential health benefits”, have lifetime and annual limits, prohibit different rates and exclusions for pre-existing conditions, etc. This will mean that more health insurance – primarily for healthy, working adults – will be purchased outside of the health insurance marketplaces, leaving those marketplaces with increased percentages of sicker and poorer Americans, which will drive up premiums and costs in those marketplaces.

Short-term limited duration health insurance is a little-known type of health insurance that is really intended to be gap coverage and therefore provides primarily emergency and catastrophic care coverage; it does not have to meet all the ACA rules for essential health benefits, preventive services, etc. The Obama administration limited these plans to 3 months; this executive order would lift that limitation and potentially allow these  extremely limited plans to be used as an ongoing coverage option. Again, younger, healthy adults are likely to purchase such plans outside of the health insurance marketplaces, driving up premiums and costs in those marketplaces.

Finally, the expansion of health reimbursement arrangements (including health savings accounts and health reimbursement accounts), are employer-funded, tax-advantaged arrangements that set aside funds to be used to pay for out-of-pocket health care expenses. These are useful for high-income individuals who can afford to set aside significant sums as savings and can benefit from the favorable tax rules. They are not useful for low-income individuals who don’t earn enough for the “savings” to be meaningful, and cannot use the tax advantages because their incomes are not high enough.

 

 

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National Quality Forum: Roadmap for Promoting Health Equity and Eliminating Disparities


The National Quality Forum (NQF) has issued a Roadmap for Promoting Health Equity and Eliminating Disparities. Despite overall improvements in public health and medicine, disparities in health and healthcare persist. Disparities are differences caused by inequities that are linked to social, economic, and/or environmental disadvantages. Achieving health equity requires eliminating disparities in health outcomes by addressing social risk factors that adversely affect excluded or marginalized groups.

Performance measurement is an essential tool for monitoring health disparities and assessing the level to which interventions known to reduce disparities are employed. Measures can help to pinpoint where people with social risk factors do not receive the care they need or receive care that is lower quality. The NQF roadmap lays out four actions, “Four I’s for Health Equity,” to promote health equity and reduce disparities:

  1. Identify and prioritize reducing health disparities
  2. Implement evidence-based interventions to reduce disparities
  3. Invest in the development and use of health equity performance measures
  4. Incentivize the reduction of health disparities and achievement of health equity

The report describes five domains of health equity performance measures that could be developed and used:

  1. Adopt and Implement a Culture of Equity. A culture of equity recognizes and prioritizes the elimination of disparities through genuine respect, fairness, cultural competency, the creation of environments where all individuals, particularly those from diverse and/or stigmatized backgrounds, feel safe in addressing difficult topics, e.g., racism, and advocating for public and private policies that advance equity.
  2. Create Structures that Support a Culture of Equity. These structures include policies and procedures that institutionalize values that promote health equity, commit adequate resources for the reduction of disparities, and enact systematic collection of data to monitor and provide transparency and accountability about the outcomes of individuals with social risk factors. These structures also include continuous learning systems that routinely assess and the needs of individuals with social risk factors, develop culturally tailored interventions to reduce disparities, and evaluate their impact.
  3. Ensure Equitable Access to Healthcare. Equitable access means that individuals with social risk factors are able to easily get care. It also means care is affordable, convenient, and able to meet the needs of individuals with social risk factors.
  4. Ensure High-Quality Care within systems that continuously reduces disparities. Performance measures should be routinely stratified to identify disparities in care. In addition, performance measures should be used to create accountability for reducing, and ultimately, eliminating disparities through effective interventions.
  5. Collaborate and Partner with other organizations or agencies that influence the health of individuals (e.g., neighborhoods, transportation, housing, education, etc.). Collaboration is necessary to address social determinants of health that are not amenable to what doctors, hospitals, and other healthcare providers are trained and licensed to do.

Finally, the report makes the following recommendations:

  1. Collect social risk factor data.

2. Use and prioritize stratified health equity outcome measures.

3. Prioritize measures in the domains of Equitable Access and Equitable High-Quality Care for accountability purposes.

4. Invest in preventive and primary care for patients with social risk factors.

5. Redesign payment models to support health equity.

6. Link health equity measures to accreditation programs.

7. Support outpatient and inpatient services with additional payment for patients with social risk factors.

8. Ensure organizations disproportionately serving individuals with social risk can compete in value-based purchasing programs.

9. Fund care delivery and payment reform demonstration projects to reduce disparities.

10. Assess economic impact of disparities from multiple perspectives.

The report was funded by the Centers for Medicare and Medicaid Services Office of Minority Health.

Link to Original Source

NQF also has produced an executive summary of the full report:

Link to Original Source

NQF also announced a Health Equity Program that will 1) identify disparities and those affected by health inequity, 2) influence performance measurement to promote health equity and reduce disparities, 3) inspire implementation of best practices through innovative approaches, and 4) inform payment, including risk adjustment, stratification, and payment reform:

Link to Original Source

NQF has received funding from the Aetna Foundation to develop an approach for addressing the social determinants of health, and from The Urban Institute to develop a measurement framework for food insecurity and housing instability, and is seeking additional funding for the Health Equity Program.

NQF’s Standing Committee on Health Equity will continue to meet and provide guidance on the Health Equity Program and related activities.

Posted in Demographic Data, Health Care Disparities, Health Care Disparities: Effective Interventions, Health Care Disparities: The Evidence of Disparities, Health Care Reform: Advancing Equity, Health Care Reform: Payment Reform, Health Care Reform: Quality Improvement, Health Status Disparities, Social Determinants of Health | Leave a comment

Presidential Proclamation Now Restricts Entry from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen

President Donald Trump has issued a presidential proclamation based on Executive Order 13780, changing the list of countries from where admission of immigrants and non-immigrants will be restricted. The countries on the immigration and travel restrictions list are now Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Chad, North Korea, and Venezuela have been added to the list and Sudan has been removed from the list (Iraq was on the list under the first Executive Order 13769 issued in January, but not on the list under Executive Order 13780, and was not on the list discussed in this presidential proclamation). The new restrictions on nationals from Chad and North Korea apply broadly but the new restrictions on Venezuela only apply to certain government officials and their families. There also have been changes on the breadth of restrictions on immigration and travel from the countries that remained on the list.

The proclamation describes the review of immigration and national security issues in each country by the Departments of Homeland Security and State, as well as national intelligence agencies, about which countries should be on the list. The proclamation clarifies that existing approved visas will still be honored and that the restrictions on the new countries would become effective on October 18, 2017.

Based on this latest presidential action, the U.S. Supreme Court has cancelled the oral argument that had been scheduled for October 10 on the U.S. government’s appeals of two federal court of appeals injunctions against the implementation of Executive Order 13780. Instead, the Court requested briefing on how this presidential proclamation impacts those injunctions and also requested briefing on whether the injunctions related to section of Executive Order 13780 that temporarily suspended the admission of refugees for 120 days, would be moot by the end of October. Notably, the presidential proclamation does not address the ban on refugee admissions. These supplemental briefs are due October 5.

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Kaiser Family Foundation: 35 States Would Receive Less Federal Funding for Medicaid Under Graham-Cassidy

The Kaiser Family Foundation has issued this analysis of the state-by-sate impact of the bill proposed by Senators Lindsey Graham and Bill Cassidy to repeal and replace the Affordable Care Act (ACA), concluding that 35 states and the District of Columbia would receive less federal funding for their Medicaid programs. Overall, there would be a reduction of $107 billion in federal funding to the states.

Because of their larger state populations and their expansions of Medicaid and health insurance marketplace coverage under the ACA, the states of California, New York, and Pennsylvania would lose the most federal funding under the Graham-Cassidy proposal. In contrast, because they declined to expand Medicaid and only have limited increases in health insurance coverage through the ACA, the states of Texas, Georgia, Tennessee, and Mississippi would gain the most federal funding under the proposal.

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Congressional Budget Office: Graham-Casssidy Proposal Would Result in Millions of Americans Losing Their Health Insurance

The Congressional Budget Office (CBO) has released this preliminary analysis of the proposal by Senators Lindsey Graham and Bill Cassidy to repeal and replace the Affordable Care Act (ACA), concluding that millions of Americans would lose their health insurance coverage under the bill. The CBO explains:

“The reduction in the number of insured people relative to the number under current law would result from three main causes. First, enrollment in Medicaid would be substantially lower because of large reductions in federal funding for that program. Second, enrollment in nongroup coverage would be lower because of reductions in subsidies for it. Third, enrollment in all types of health insurance would be lower because penalties for not having insurance would be repealed.”

Since the bill shifts significant responsibility to the states for designing their Medicaid programs through block grants, and for their health insurance marketplaces with much more flexibility to change the current national standards established by the ACA, the CBO has not had the time to analyze or estimate the impacts on these complex, potential state-level decisions. For example, the CBO could project that states that have expanded Medicaid under the ACA are more likely to try to use both their Medicaid programs and their health insurance marketplaces to maintain coverage for those currently insured, including establishing state-based subsidies for premiums and cost-sharing. However, states may be limited in what they can do because the amount of federal funding for Medicaid under the new block grants and for their health insurance marketplaces is capped and limited.

Considering the caps on federal Medicaid funding and the limited amount of federal assistance for the marketplaces, the CBO does preliminarily conclude that the number of uninsured will increase, that the average amount of health insurance premiums will increase, and that the scope of health insurance benefits will decreases (since states can waive the “essential health benefits” required by the ACA).

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Here is the text of the proposed bill analyzed by the CBO (at least two other versions of the bill have been circulated):

Link to Original Source

Since this bill would use the federal budget reconciliation process to repeal and replace the ACA, it must be voted on before the end of this year’s federal fiscal year, or this Saturday September 30. Republican Senators Rand Paul, John McCain, and Susan Collins have announced their opposition to the proposal, which means that whether the Senate even votes on the bill this week remains uncertain.

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Physician Associations Oppose Rescission of DACA; Call on Congress to Enact Legislation to Continue Program

Several national and state physician organizations issued statements today opposing the rescission of the Deferred Action for Childhood Arrivals (DACA) program, and calling on Congress to enact legislation that would continue the program:

American Medical Association 

American College of Physicians 

American Academy of Pediatrics

California Medical Association

The Association of American Medical Colleges also issued a statement in support of DACA.

 

 

 

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