health insurance

Zombie same sex employee lawsuit denied again

Shuffling along like the undead flesh eater that it is.

A Texas appellate court struck a challenge Thursday to Houston’s policy giving same-sex spouses of city employees the same benefits as different-sex spouses, saying that the city was immune from the case and that three major U.S. Supreme Courtrulings barred the claims.

A split Fourteenth Court of Appeals panel affirmed a state trial court’s February 2019 ruling against Jack Pidgeon and Larry Hicks, who challenged the benefits policy in an October 2014 suit.

“Because appellants’ attempt to prevent the city from offering employment benefits to married same-sex couples on the same terms and conditions as married different-sex couples cannot be reconciled with the requirements of the U.S. Constitution, we reject it,” Justice Margaret Poissant said in an opinion for the panel.

Mayor Sylvester Turner is not liable for the plaintiffs’ ultra vires claim, a claim used to target government officials for acting beyond their authority, because the 2013 directive issued by his predecessor was discretionary, the panel found.

The plaintiffs had even conceded that point when they argued the mayor and other officials spurned state marriage law “because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires,” the panel noted.

Further, Houston didn’t waive the immunity it typically has in ultra vires claims, according to the opinion. For a city to be a party to such a suit, the case must challenge a statute or ordinance, but the plaintiffs instead alleged violations of state law.

The plaintiffs also failed to establish that the directive was made without legal authority, according to the opinion.

Justice Poissant said the plaintiffs were wrongly trying to relitigate the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges , which legalized same-sex marriage and made the Texas state laws at issue unconstitutional.

The panel also cited the high court’s 2017 ruling in Pavan v. Smith , which allowed same-sex parents the right to be listed on their children’s birth certificates, and its 2019 decision in Bostock v. Clayton County , which protected transgender individuals from discrimination.

The panel further denied the plaintiffs’ request for an injunction barring the city policy, saying their claim that the city used their tax dollars to “subsidize homosexual relationship,” which they believe is “immoral and sinful,” didn’t demonstrate imminent harm.

Justice Randy Wilson penned a partial dissent, saying the rest of the panel took the issue too far.

The trial court, Wilson said, had “paradoxically” dismissed the claims for lack of jurisdiction while essentially granting summary judgment on the merits. The appellate court should have addressed only the former and simply vacated the latter, he said.

See here for the previous update, and for the case information, including the opinion and concurrence and dissent from Justice Wilson. The original lawsuit was filed in 2013, for those keeping score at home. How much do you have to hate gay people to continue to pursue this eight years later? Jared Woodfill is their lawyer, if that helps you answer that question. Let us hope there is no further news to note on this.

Today is not the day we expand Medicaid

Apr 23rd, 2021

by Charles Kuffner.

1 comment

Tomorrow isn’t looking so good either.

It’s constitutional – deal with it

The Texas House on Thursday rejected an attempt to direct the governor and state health officials to use billions in federal dollars to expand health care coverage for uninsured Texans, including working poor who earn too much to qualify for Medicaid but too little to afford their own health insurance.

On a vote of 80-68, lawmakers voted down the proposal, which was floated as a two-page amendment to the state budget on Thursday.

The debate, which was highly anticipated by advocates of expanding coverage for uninsured Texans, was expected to be heated and drawn out. It lasted less than 20 minutes.

[…]

State Rep. Garnet Coleman, a Houston Democrat who sponsored the amendment, said it wouldn’t force the state to expand traditional Medicaid but would direct Abbott and the Texas Health and Human Services Commission to negotiate a federal funding agreement, known as a 1115 demonstration waiver, to create a plan that would cover more uninsured Texans, including those who would qualify for coverage under a traditional Medicaid expansion plan.

The resulting plan could have been a traditional expansion of Medicaid to cover adults who earn up to a certain amount, or a “look-alike” that combines state and federal funds to create a state program that accomplishes a similar goal, Coleman said.

Such state-crafted plans have been passed in several states, mainly conservative states like Indiana and Ohio.

“I would like for us to expand traditional Medicaid in the optional way that the ACA says you can do it,” Coleman said on the House floor. “But we can’t do that. And we know that … That is not what this amendment does.”

Rep. Richard Peña Raymond, D-Laredo, said the idea “puts Texas in the driver’s seat, and really Gov. Abbott in the driver’s seat” instead of forcing their hand or pushing through a program unpopular with conservatives.

But Republican state Rep. Giovanni Capriglione, the only House member to speak against the bill during Thursday’s debate, said that creating a new health care program — Medicaid or otherwise — is far too complicated an endeavor to tackle in a two-page amendment and cautioned that it in fact looked like a way to expand Medicaid without a public hearing or extended floor debate.

“This topic is incredibly important, it’s complex, and frankly, it’s not appropriately handled in this amendment,” Capriglione said.

House Democrats, a handful of Republicans, and health care advocates, as well as nearly 200 groups and community leaders across Texas, still have some hope for House Bill 3871 by state Rep. Julie Johnson, D-Carrollton. That bill creates the “Live Well Texas” plan that uses a 1115 waiver to capture the federal dollars and expand Medicaid eligibility, and it includes incentives for people to continue working as well as increases in Medicaid reimbursements to attract more doctors to the program.

The bill has 76 House sponsors, nine of whom are Republicans, giving it enough support to pass the House. But it has been stuck in the GOP-led House Human Services Committee since March, waiting on a hearing that becomes increasingly less likely as the Texas Legislature barrels toward its final days at the end of May.

Only one of the Republican sponsors of HB 3871 voted for the Coleman amendment.

See here and here for the background. In a vacuum, I can accept Rep. Capriglione’s explanation for why this was the wrong vehicle to handle a complex health care topic, but given that the Lege has refused to consider Medicaid expansion for a decade, and as Rep. Coleman notes we’re only trying to do this the hard way because Republicans refuse to do it the easy way, I’m less sympathetic. Even if this amendment had been adopted, there would be no guarantee it would be in the final budget – as Scott Braddock notes, what matters is the conference committee. In theory, that means this could be revived there, but let’s just say one should not bet on that outcome. All respect to Reps. Coleman and Johnson, but we’ve seen this movie before, and I don’t expect it to end any differently this time around.

Medicaid expansion by any means necessary

Apr 22nd, 2021

by Charles Kuffner.

Comments are off for this post

Whatever it takes. But I’ll believe it when I see it, and I have a very hard time believing that the current cast of characters will do anything to make it happen.

It’s constitutional – deal with it

Texas Republicans have been swift to condemn the Biden administration for rescinding early approval of a multibillion dollar Medicaid program that would help fund emergency care for the state’s booming uninsured population through 2030.

Gov. Greg Abbott said the federal government was “deliberately betraying Texans.”

Attorney General Ken Paxton vowed to “use every legal tool available to regain the assistance Texans need.”

But the decision federal health officials announced Friday could end up being one of the biggest steps yet to extend government health coverage to low-income people in Texas since the Affordable Care Act, according to health advocates and political observers. That’s true even if it doesn’t spur immediate change.

“The Biden administration has all the cards here,” said Brandon Rottinghaus, who teaches political science at the University of Houston. “They aren’t playing nice anymore with health care expansion. They’ve got the money, so they have the leverage.”

Pressure is also coming from inside the state. On Tuesday, a group of more than 150 organizations, including chambers of commerce, trade associations and local officials signed a letter calling on lawmakers to “support increased health coverage for Texans.”

“We specifically support a coverage initiative that is bipartisan, funded through available federal dollars, structured to be neutral for the state’s budget, and designed to meet Texas’ specific needs, values and circumstances,” it said.

The letter notably did not include the Texas Hospital Association, which criticized Friday’s decision. It has supported expanded coverage in the past.

[…]

Health care advocates have been quick to downplay Friday’s announcement, saying there is still plenty of time for the state to apply again for the waiver before next year. Texas was originally approved for the extension as part of a flurry of eleventh-hour orders by Trump health officials. In doing so, it allowed the state to forgo the normal comment period.

“I think of it in terms of, Texas didn’t follow the rules, and now it’s being told to follow the rules,” said Elena Marks, president of Episcopal Health Foundation in Houston. “It’s not being told, ‘you can’t have an uncompensated care pool.’ In fact, we need an uncompensated care pool, we ought to have one. But we have to follow the rules.”

See here for the background. Rescinding the 1115 waiver extension and making Texas follow the process to re-apply for it is a shot across the bow, but a limited one. If Texas does re-apply correctly, that extension will almost certainly be granted, though perhaps for a shorter period of time or with more strings attached. The current position of the Texas Hospital Association, which is on the sharp end of the stick right now, gives Abbott et al some cover. And as the story notes, Abbott has a primary election coming up, and the very last thing he will want to do before he wins that is anything that will make it look like he capitulated to Joe Biden and the Democrats. Maybe something happens after that, but politically speaking the incentives are all wrong.

This Trib story from Wednesday afternoon appears to offer a bit of hope, but don’t be fooled into thinking it’s more than that.

Among several bills filed in the conservative Texas Legislature is a Medicaid expansion plan with bipartisan support that is similar to those adopted in some Republican-led states.

Nine House Republicans and all 67 House Democrats have publicly signed on to House Bill 3871, which would give it enough votes to pass the 150-member chamber. Although none of the proposals have gotten a hearing this session, Medicaid expansion is expected to be introduced in some form as a floor amendment Thursday when the House debates the state budget.

[…]

“The time to do this is now,” said state Rep. Julie Johnson, D-Carrollton, the author of House Bill 3871. “The deal on the table that the [federal] government offered to us is, in my opinion, irresponsible not to accept.”

Conservative lawmakers are weighing their historic opposition to Medicaid expansion against the potential of billions in federal incentives coming to Texas during a tight budget cycle.

“There is a bipartisan desire to see the cost of health care decrease. The unsustainable increase in prices, whether at the hospital, the doctor, or in health insurance premiums hits all Texans,” GOP state Rep. James Frank, chair of the House Human Services Committee, said in emailed comments to the Tribune. “But there is also concern that when Medicaid expands, that adds pressure to the private insurance market to make up the difference in reimbursements. Hence, expansion is a hidden tax on those who have private insurance, driving up the cost of care for everyone.”

[…]

Lt. Gov. Dan Patrick’s and Gov. Greg Abbott’s offices did not respond to requests for comment, but both have opposed expanding Medicaid in the past. In January, House Speaker Dade Phelan expressed doubt that Medicaid expansion would happen this session.

Among other arguments, opponents say it would crowd out current Medicaid patients who are already getting a low quality of care due to the limited number of physicians who accept Medicaid patients because of low reimbursements.

It’s nice that there are 76 votes for a bill that hasn’t gotten a hearing and would still have to get through the Senate and be signed by Greg Abbott, but it’s still vaporware for now. (Rep. Frank, the House Human Services Committee Chair, is not among the nine Republican co-authors.) The same old tired arguments against Medicaid expansion, by people who don’t like Medicaid but claim to want to “protect” it, continue to have sway. Honestly, about 95% of this story could have been written in 2019, or 2017, or 2015, or 2013. It’s a tale as old as time at this point. The urge among Republicans to stick it to Obamacare at all costs has not abated. I don’t see anything to suggest to me that something has changed in this dynamic. I will be delighted to be wrong, but until I am proven wrong I say it ain’t gonna happen until we elect enough Democrats to make it happen.

Now it really is time for Texas to expand Medicaid

Apr 18th, 2021

by Charles Kuffner.

1 comment

Good for the Biden administration putting the pressure on.

It’s constitutional – deal with it

The Biden administration on Friday rescinded changes to a federal funding agreement, known as a 1115 waiver, that would have extended for 10 years Texas’ health care safety net for uninsured residents — teeing up a new round of negotiations before the existing waiver expires in 2022.

The Centers for Medicare and Medicaid Services said in a statement that it erred in exempting the state from the normal public notice process before granting an extension to the waiver in the waning days of the Trump administration.

The agency “has rescinded the extension approval, which corrects this oversight with as little impact as possible to the people of Texas, since the original demonstration remains intact through September 30, 2022,” it said in a statement.

The Washington Post, citing two federal health officials, said the decision was a bid to push Texas toward expanding Medicaid to cover more low-income adults, a move the state and eleven others have resisted.

The 1115 waiver reimburses hospitals for the “uncompensated care” they provide to patients without health insurance and pays for innovative health care projects that serve low-income Texans, often for mental health services. The extension — worth billions of dollars a year — would have continued hospital reimbursements until September 2030, but allowed the innovation fund to expire this year.

The earlier waiver is still in effect, and federal authorities “stand ready to work with the state” if it wishes to extend it beyond next year, according to a Friday letter from the Centers for Medicare and Medicaid Services.

The state’s rationale to get out of the normal public notice process was that health care providers needed financial stability during the coronavirus pandemic, the letter said. But the state’s request did not “meaningfully explain why the extension request addressed the COVID-19 public health emergency or any other sudden emergency threat to human lives,” it said, in part.

See here for some background, and be sure to click on the NBC News link in that post. The 1115 waivers were used during the Trump years to approve the skinniest and stingiest Medicaid expansions possible, and in typical Trump fashion were done with zero regard for existing law or protocol. The Chron has some more details.

While the state’s current 1115 waiver won’t expire until September of next year, the reversal has immediate political impacts because the state Legislature has only weeks left in its session and won’t meet again until 2023. Without certainty over how much the federal government will contribute going forward, lawmakers risk leaving huge funding gaps for counties and hospitals.

Texas Republicans, who control the state government, have long campaigned against the Affordable Care Act and have declined to expand Medicaid under the act’s provisions as they seek to overturn the law in court. The state has depended on the waiver system as a cheaper alternative that nonetheless leaves millions of Texans uncovered.

Today, Texas has the highest uninsured rate in the country, with nearly 1 in 5 people lacking coverage. That results in staggering amounts of uncompensated emergency room visits each year, some of which is reimbursed by the 1115 waivers.

[…]

Earlier this year, a group of national health associations including the American Cancer Society, the American Heart Association and the American Lung Association called out the Trump administration’s expedited approval, saying there was plenty of time to hold a public comment period before the existing waiver expires next year.

“The waiver application was hundreds of pages, I don’t think it even mentioned COVID,” said Joan Alker, a Medicaid expert at Georgetown University who had signed on to the letter. “So it was a blatant disregard of what the exemption was supposed to be for.”

The Texas Hospital Association said it was disappointed with the decision.

“This action undermines the safety net and hospitals’ ability to protect people,” president Ted Shaw said in a statement. “It puts the state’s health at serious risk and creates unprecedented levels of uncertainty for an industry that is charged with saving lives.”

Others noted that the waiver was never meant to be a permanent solution.

“The waiver was always intended to serve as a temporary bridge until the state implemented an insurance option — with federal Medicaid expansion funds — for low-wage workers whose jobs don’t provide health coverage,” said Patrick Bressette, who directs the Children’s Defense Fund Texas. “Now would be a good time to have a real conversation about Medicaid expansion.”

Texas Sen. Nathan Johnson, a Democrat from Dallas who authored an expansion bill that has some Republican support, said the state should immediately reapply for the waiver while also taking up the expansion question.

“The story being told on the Republican side is Biden’s taking away resources from vulnerable people. False,” he said. “There’s still time left under the old waiver protections to do this the right way.”

I can understand why the Texas Hospital Association is unhappy with the decision, but the root of that is the failure to expand Medicaid, which has cost Texas hospitals tons of money. The waiver lets them get a few of those dollars back, but why settle for pennies when the dollars are available? Do the expansion, like we should have done a decade ago, and everyone is better off. It may be late in this session but there will need to be at least one special session for redistricting anyway, so the legislative calendar isn’t actually a problem. The choice and the benefits are clear, and the only reason not to is sheer partisan obstinance. Quit whining and get it done already.

A brief summary of what the next two years will be like

Jan 22nd, 2021

by Charles Kuffner.

25 comments

What will Republicans do without Trump?

“The Republican Party is at a crossroads like it’s never been before, and it’s gonna have to decide who it is,” said Corbin Casteel, a Texas GOP operative who was Trump’s Texas state director during the 2016 primary.

No one seems to be under the illusion that Trump will fade quietly. Since losing the election to Joe Biden in November, Trump has launched baseless attacks on the integrity of the election as most prominent Texans in his party let his claims go unchallenged. Some of Trump’s most loyal allies in Texas expect he’ll be a force here for years.

“The party is really built around Donald Trump — the brand, the image, but most importantly, his policies and what he accomplished,” [Dan] Patrick said during a Fox News interview Thursday. “Whoever runs in 2024, if they walk away from Trump and his policies, I don’t think they can get through a primary.”

To Texas Democrats, Trump has been a highly galvanizing force who created new political opportunities for them, particularly in the suburbs. He carried the state by 9 percentage points in 2016 — the smallest margin for a GOP nominee in Texas in two decades — and then an even smaller margin last year. But his 6-point win here in November came after Democrats spent months getting their hopes up that Trump would lose the state altogether, and they also came up woefully short down-ballot, concluding the Trump era with decisively mixed feelings about his electoral impact at the state level.

More broadly, some Texas Democrats believe Trump is leaving a legacy as a symptom of the state’s current Republican politics, not a cause of it.

“Frankly I don’t think he changed the Republican Party in Texas,” said Gilberto Hinojosa, the state Democratic Party chair, adding that Trump has instead magnified the “extreme politics and tendencies” that Texas Republicans have long harbored. “The things that [Trump] stands for — the white nationalism, the anti-LGBT [sentiment], the just flat-out racism, just the absolute meanness — that’s what the Republican Party has been in Texas for quite some time.”

As for Texas Republicans’ embrace of Trump, Hinojosa added, they “are the people that Trump talks about when he says he could shoot someone in the middle of Fifth Avenue and not lose their support.”

[…]

To be sure, it’s entirely possible Republicans unite in the next year the way political parties do when they’re in the minority — with an oppositional message to the opposing administration. But the GOP’s longer-term challenges could prove harder to resolve. In the final years of Trump, some in the party drifted from any unifying policy vision. At the 2020 Republican National Convention, the party opted not to create a new platform, saying it would instead “continue to enthusiastically support the President’s America-first agenda.”

November’s elections in Texas did little to settle the debate over which direction the party should go. Those who want to move on note that Trump won with the narrowest margin for a GOP presidential candidate this century, and swing-seat Republican congressional contenders largely outperformed him in their districts.

“Most every Republican that was successful, with the exception of a handful, outperformed Donald Trump by a significant margin,” Hurd said. “If you’re not growing, you are dying, and if we’re not expanding to those voters that are disaffected and don’t believe in the message that Democrats are providing, then we’re not going to be able to grow.”

On the other hand, Trump’s 6-point margin was bigger than expected, and he performed surprisingly well in Hispanic communities in South Texas. Former Texas GOP Chair James Dickey said Trump’s message was “particularly effective” in swaths of the state that aren’t typically looked at as political bellwethers.

“His biggest impact has been a return to populist roots and an expansion of the party in minority communities, which, again, is a return to its roots,” Dickey said.

My medium-lukewarm take based on 2018, 2020, and the Georgia runoffs is that Republicans do better with Trump on the ballot than not. Dems made the big gains in 2018 in part because Republican turnout, as high as it was in that off-year, wasn’t as good as it could have been. The GOP got some low-propensity voters to turn out in November – as did Dems – and now they have to try to get them to turn out again. Maybe they will! Maybe with Trump gone some number of former Republicans who voted Dem because they hated Trump will find their way back to the GOP. Or maybe those folks are now full-on Dems. The national atmosphere will be critical to how 2022 goes – the economy, the vaccination effort, the Senate trial of Trump, further fallout from the Capitol insurrection, and just overall whether people think the Dems have done too much, too little, or the right amount. Dems can only control what they do.

And that’s going to mean playing some defense.

Democrats are headed back to the White House, and Texas Republicans are gearing up to go back on offense.

For eight years under President Barack Obama, Texas was a conservative counterweight to a progressive administration, with its Republican leaders campaigning against liberal policies on immigration, the environment and health care and lobbing lawsuit after federal lawsuit challenging scores of Democratic initiatives. When Republicans could not block policies in Congress, they sometimes could in the courts.

Now, as Joe Biden enters the White House promising a slew of executive orders and proposed legislation, the notorious “Texas vs. the feds” lawsuits are expected to return in full force. And state leaders have begun to float policy proposals for this year’s legislative session in response to expected action — or inaction — from a White House run by Democrats.

[…]

Under Trump, Texas has often found itself aligned with the federal government in the courts. Most notably, the Trump administration lined up with a Texas-led coalition of red states seeking to end the Affordable Care Act. That case is pending before the U.S. Supreme Court.

Once Biden enters the White House and his appointees lead everything from the Environmental Protection Agency to the Department of Homeland Security, Texas’ conservative leaders will return to a familiar posture: adversary, not ally, to those making national policy.

Paul Nolette, a professor at Marquette University who studies federalism, said he expects Texas to be “at the top of the heap” among Republican attorneys general challenging the new administration in court.

According to Nolette, the number of multi-state lawsuits against the federal government skyrocketed from 78 under eight years of Obama to 145 during just four years of Trump.

“Republican AGs will take a very aggressive multi-state approach,” Nolette predicted. “It’ll happen quickly.”

It should be noted that a lot of those lawsuits were not successful. I don’t know what the scoreboard looks like, and some of those suits are still active, so write that in pencil and not in Sharpie. It should also be noted that the goal of some of these lawsuits, like ending DACA and killing the Affordable Care Act, are not exactly in line with public opinion, so winning may not have the effect the GOP hopes it would have. And of course AG Ken Paxton is under federal indictment (no pardon, sorry), leading a hollowed-out office, and not in great electoral shape for 2022. There’s definitely a chance Texas is not at the front of this parade in 2022.

My point is simply this: There’s a lot of ways the next two years can go. I think the main factors look obvious right now, but nothing is ever exactly as we think it is. I think Democrats nationally have a good idea of what their goals are and how they will achieve them, but it all comes down to execution. Keep your eye on the ball.

Here’s the official budget forecast

Jan 12th, 2021

by Charles Kuffner.

3 comments

“Could be worse” remains the watchword.

Texas lawmakers will enter the legislative session this week with an estimated $112.5 billion available to allocate for general purpose spending in the next two-year state budget, a number that’s down slightly from the current budget but is significantly higher than what was estimated this summer when the coronavirus began to devastate the economy.

Texas Comptroller Glenn Hegar on Monday announced that number in his biennial revenue estimate, which sets the amount lawmakers can commit to spending when they write a new budget this year. But he acknowledged that Texas’ economic future remains “clouded in uncertainty” and that numbers could change in the coming months.

Hegar also announced a nearly $1 billion deficit for the current state budget that lawmakers must make up, a significantly smaller shortfall than Hegar expected over the summer. That number, however, doesn’t account for 5% cuts to state agencies’ budgets that Gov. Greg Abbott, House Speaker Dennis Bonnen and Lt. Gov. Dan Patrick ordered this summer or any supplemental changes to the budget lawmakers will have to make.

Hegar’s estimates portend a difficult budget-writing session for lawmakers. But Hegar acknowledged that things could have been a lot worse. The $112.5 billion available is down from $112.96 billion for the current budget.

See here for the previous update. I continue to hope that Congress will throw a boatload of state and local aid our way in the coming months, which will also help, but at least we’re not in truly dire territory. And bizarrely enough, there may be a silver lining in all this.

But advocates hope the pandemic, combined with the revenue crunch, could lead to an unlikely bipartisan agreement. Before the pandemic hit, Democrats saw a takeover of the Texas House as key for advancing the prospects of Medicaid expansion in the state. But as COVID-19 has ravaged the state economy and thrown even more Texans into the ranks of the uninsured, Democrats are guardedly optimistic this could persuade enough Republicans to put aside their political hangups and support expansion—even as Republican Attorney General Ken Paxton leads a national lawsuit to eliminate the entire Affordable Care Act.

Texas is one of 12 remaining states that have refused the federally subsidized Medicaid expansion, despite having the highest rate and largest population of uninsured residents in the country. Expanding Medicaid would cover 1 million uninsured Texans and bring in as much as $5.4 billion to the state, according to a September report by researchers at Texas A&M University.

State Representative Lyle Larson, a moderate Republican, voiced his support for expanding Medicaid soon after the election, pointing to six GOP-led states that have done so in the past three years. “It is a business decision,” Larson wrote on Twitter, noting that the move would help with the revenue shortfall and COVID-19 response, address rural hospital closures, and expand access to care. Dallas County Representatives Morgan Meyer and Angie Chen Button, both Republicans, pulled out razor-thin victories to keep their House seats after voicing support for some type of Medicaid expansion in their campaigns.

Even conservative state Senator Paul Bettencourt acknowledged that the fiscal crunch will force consideration of Medicaid expansion. “My back-of-the-napkin analysis shows that’s a $1.6 billion item, like that—boom!” he told the Dallas Morning News in September. “I’m pretty sure we don’t have that falling out of trees,” he said. “You can put Medicaid expansion up at the top of the list. There will be a debate.”

But there’s still plenty of staunch opposition. “For those that promote [expansion], I haven’t heard what they’re willing to cut,” state Senator Kelly Hancock, a Republican who chairs the Business and Commerce Committee, said in November. “It’s easy to talk about it until you have to pay for it, especially going into this budget cycle.”

As with casinos and marijuana, the smart money is always to bet against Medicaid expansion happening. But this is a bigger opening than I’ve seen in a long time, and while that’s still not saying much, it’s not nothing.

We’re number one (million)!

Nov 12th, 2020

by Charles Kuffner.

2 comments

One million COVID cases in Texas. Hooray?

Texas’ grim distinction as the national leader in terms of COVID-19 infections came as little surprise to some local medical experts, who blamed politicians for conflicting messages about the virus and warned the worst is yet to come.

Texas this week breached a milestone of 1 million cumulative cases since the start of the pandemic, recording more infections than any other state in the U.S. For reference, more people have been infected in the Lone Star state than live in Austin, the state’s capitol.

If Texas were its own country, it would rank 10th in terms of total cases, according to data from Johns Hopkins University, placing it higher than European hotspots like Italy.

The big numbers are not a shock in a state that’s home to roughly 29 million people. The number of cases per 100,000 residents is lower here than in about half of the states in the country. But Texas also had more newly reported cases in the last seven days — an average of about 8,200 — than other large, hard-hit states such as New York, California and Florida. Only Illinois has a higher seven-day average.

Dr. David Callender, president of the Memorial Hermann Health System, called the 1 million cases “a sobering statistic.”

“It’s not a surprise in the context of all that’s happened,” Callender said. “But it’s a significant number — 3 percent of the population — and cause for worry about the trend continuing as we go forward.”

Callender attributed the high number to “too much division” in the attempt to contain the virus.

“To me, politics entered in an inappropriate way,” said Callender. “People making a political statement with their behavior — that the pandemic is a hoax, that no one can make them wear a mask — really interfered with efforts. It was the wrong mindset.”

To be fair, California is a couple of days behind us, and may have passed one million by the time I publish this. Of course, California also has ten million more people than Texas, so.

The state’s positive test rate is now 11.24%, compared to 7.64% a month ago.

Hey, remember when a 10% positivity rate was considered to be a “warning flag” by Greg Abbott? You know, as part of his famous “metrics” for reopening the state?

Abbott’s office didn’t immediately respond to messages Tuesday.

Too busy propping up Donald Trump’s ego to deal with this kind of trivia, I suppose.

Meanwhile, in El Paso…

The number of coronavirus patients in Texas hospitals has nearly doubled since October, and average infections are at their highest point in almost three months — leaving health officials bracing for a potential crush of hospitalizations going into the holidays.

In El Paso, hospitals are so overwhelmed with COVID-19 patients that in early November the Department of Defense sent medical teams to help, and the county has summoned 10 mobile morgues to hold dead bodies. Local funeral homes are readying extra refrigerated storage space, as the number of hospitalized coronavirus patients in the far West Texas city has shot up nearly tenfold since the start of September.

The new wave of infections stands in contrast to the summer surge, when Gov. Greg Abbott held regular press conferences about the virus and mandated that face coverings be worn, earning him the ire of the far-right. Now, state officials seem reluctant to crack down on the virus’ spread by further curtailing economic activity — and are fighting the El Paso county judge’s attempt to impose a curfew and a stay-at-home order in the face of record-breaking cases.

The state will not do anything to help, and you local leaders are not allowed to do anything to help. You’re on your own. If you’re very lucky, maybe you won’t have your health insurance taken away while you recover. Did I mention that disaster and emergency response ought to be a big theme of the 2022 election? Texas Monthly has more.

UPDATE: Nothing to see here.

.
I just want to reiterate that the number of people hospitalized for COVID in Texas rose *10%* in one day.

Not good at all.

— Matt Largey (@mattlargey) 10:31 PM – 11 November 2020

We don’t need a vote to expand Medicaid

Aug 13th, 2020

by Charles Kuffner.

2 comments

There’s a fundamental truth that needs to be addressed in this.

It’s constitutional – deal with it

On Tuesday, Missouri became the 38th state to expand Medicaid, opening healthcare to over 230,000 Missourians. It joins a lengthy list of GOP-led states in expanding healthcare, including Nebraska, Utah, and Oklahoma. Meanwhile in Texas we still lead the country in the number of uninsured and, since the COVID-19, pandemic another 650,000 have lost their health insurance.

The ballot initiative to expand Medicaid passed in Missouri by 53 percent, with several suburban counties in St. Louis and Kansas City voting overwhelmingly for the measure. The governor of Missouri, a staunch conservative, actually added the ballot initiative to the August primary ballot instead of November’s presidential ballot, hoping a smaller turnout would defeat the measure.

Clearly, the voters of Missouri felt expanding Medicaid was important for their state. The vote also comes as the Trump administration continues its effort to dismantle the Affordable Care Act, potentially kicking 20 million Americans off their health care and denying preexisting conditions coverage to over 120 million. Both Gov. Greg Abbott and Texas Attorney General Ken Paxton support ending the ACA.

Texas has been in a health crisis for a long time, well after the state decided not to expand Medicaid through the ACA. According to a report from 2018, over 17 percent of Texas residents lacked health coverage. That’s about 5 million Texans without access to health care.

With COVID-19, that health crisis has only exacerbated. While cases and hospitalizations from COVID-19 have gone down in parts of the state, those numbers will likely rise precipitously as schools open. Over 7,000 Texans have died from the coronavirus. Many hospitals, particularly rural ones, are overwhelmed. The health care status quo has never felt so dangerous and untenable.

So will Texas ever get a chance to vote on expanding Medicaid? According to Republican lawmakers in the state, that would be a “no.” Rep. Celia Israel commented on Twitter that she and Rep. John Bucy sponsored a bill in the last legislative session that would allow voters to “weigh in and expand Medicaid,” but that it never got a hearing.

[…]

If Texans do get a chance to vote on expanding Medicaid, it will surely be opposed by Republicans statewide and in the legislature. If history is any guide, however, improving health care will transcend partisan lines.

The people of Missouri voted on the question of expanding Medicaid because the state of Missouri allows for laws to be enacted by referendum. In other words, in the state of Missouri and a number of others, you can collect petition signatures to put a proposed law up for a vote by the people, which is then enacted if it passes. Different states have different rules for this, but that’s the basic idea. The city of Houston allows for charter amendments to be put up for a vote via the petition process, which is always a fun thing to endure. For better or worse, the state of Texas does not allow for this.

The key thing to understand here is that the folks who pushed Medicaid expansion in Missouri via referendum did so for the explicit purpose of bypassing Missouri’s legislature and governor, both of which opposed Medicaid expansion. Most states early on passed Medicaid expansion via their legislatures, including some Republican states, but in recent years most of the action has come via the ballot box, in states like Idaho and Nebraska and Oklahoma. The key ingredients there were a combination of legislators and governors that opposed expanding Medicaid, and a petition process that allowed for the legislative process to be circumvented.

So if you’ve wondered why if those states can vote to expand Medicaid why can’t Texas, the answer is because the law doesn’t allow for it. It can only be done via the Legislature. Indeed, bills to do some form of Medicaid expansion have been proposed but have not gotten anywhere. The reason for that of course is intransigent Republican opposition, but guess what: The Democrats have a shot at taking the majority in the State House this year (as you may have heard), which would overcome one of those obstacles. We’d still need to take the Senate and elect a new Governor to finish the job, but at the very least the House could pass a Medicaid expansion bill, or put something for it in the budget, and dare the Senate and Greg Abbott to oppose it. I for one would be fine with having the 2022 Governor’s race be defined in large part by expanding Medicaid (in addition to, you know, COVID-19 response).

If that’s the case, then what was Rep. Israel tweeting about? Very simply, it was a political move to try to force the issue in a slightly different way. What Reps. Israel and Bucy proposed was a Constitutional amendment, which is something that the voters have to approve, which would have expanded Medicaid. Why propose a Constitutional amendment, which requires a two-thirds vote in both chambers, instead of a regular old bill that needs only a simple majority? Three reasons: One, constitutional amendments do not need the governor’s approval, so it would go to the voters regardless of what Greg Abbott wanted. Two, it offered Republican legislators who opposed Medicaid expansion but might have felt the need to do something a way out, as in “just vote to let the people decide, and we’ll never bother you about it again”. And three, constitutional amendments can only be changed or repealed by subsequent constitutional amendments, with their two-thirds-majority requirements, thus protecting Medicaid expansion via this avenue from the whims of a future Republican legislature.

The point is, though, we don’t need to vote to expand Medicaid. At least, we don’t need to vote on a ballot proposition to do it. We just need to vote for a Legislature and a Governor who are willing to do it. We’re a lot closer to that than we’ve ever been, and we’re closer to it than states like Missouri and Idaho and Nebraska and Oklahoma had any hope of being. The votes we need to expand Medicaid are this November, and November of 2022. Those are the prizes to keep your eyes on.

Matt Glazer: A way to end surprise medical bills

Jul 31st, 2020

by Charles Kuffner.

2 comments

(Note: The following is a guest post that was submitted to me. I occasionally solicit guest posts, and also occasionally accept them from people I trust.)

At a young age, I had to deal with medical issue after medical issue. It started with trips to M.D. Anderson and ended with an emergency appendectomy. Three major illnesses in 2 years was hard, but we were fortunate enough not to be financially destroyed by these unexpected medical expenses.

Fast forward to now and I am constantly nervous to go see a doctor. Yes, I have insurance now (something that was impossible before the Affordable Care Act), but I am also a pawn in a subterranean fight between health care providers and insurance companies. Basic treatments that should be covered sometimes aren’t and with no rhyme or reason. Then I am hit with unexpected bill that sends me back to eating ramen or cutting expenses again.

There is a real, bi-partisan opportunity to do something about this and protect consumers.

As COVID-19 continues to disrupt life in Texas throughout the country, health care access has never been more important. Now more than ever, people need to see a doctor when they’re sick – not just for their own health, but (given the contagiousness of the disease) for the health of those around them.

Yet some in Washington, D.C. are putting that access at risk in a ham-fisted attempt to stop surprise medical bills.

Most of us have dealt with the shock of a surprise medical bill in recent years – those charges you get billed for after getting medical care, when your insurance company refuses to foot the bill for an out-of-network health provider. Congress has been debating this issue for over a year, and two main camps have emerged. One group wants to end these disputes by creating an independent dispute resolution (IDR) system, where providers and insurance companies are pushed toward a negotiating table to figure out their differences, and patients are left out of the process. The other group wants pre-determined reimbursement rates for services based on insurance companies’ in-network rates.

The first option, IDR, is similar to what we passed last year for insurance plans regulated by the state of Texas – one of the country’s most patient-friendly surprise medical bill laws which won bipartisan support. Other states, such as New York, have instituted a similar system with successful results. (Unfortunately, these state fixes only apply to plans regulated by the state, which is why Congress needs to act. For example, in Texas only 16% of health plans are covered by the state surprise billing law.)

The problems with the second option become obvious quickly: If insurance companies are setting rates, they have all the negotiating leverage. Surprise bills go from being a dispute over how much to charge for a medical procedure to a take-it-or-leave it edict to hospitals, doctors, and other care providers. The rate-setting option would artificially drive insurance payouts down and create dire financial situations for doctors and hospitals – particularly in rural areas, where hospitals function as major hubs for local health care services. It would pad the bottom line for health insurance companies, though – not like they need it, since they have been among the few companies making more money during the pandemic.

Worst of all: Rate-setting would allow insurance companies to further enrich themselves on the backs of the doctors, nurses, and other health care providers who have been serving on the front lines of the pandemic, shouldering more risk than any of us in fighting COVID-19.

(Last month, the Trump administration proposed a third option: an outright ban on surprise medical bills with no outline for resolving the underlying dispute. That figures to throw any disputed bill into the court system, with costly lawsuits driving up the costs of both health care and insurance premiums. Everyone except the lawyers would lose in that scenario.)

Thankfully, surprise medical billing is one of the few truly bipartisan issues on Congress’s agenda, outside the drama of November’s elections. And there is bipartisan support for an IDR-based solution, which means that we can have some hope that Sen. John Cornyn, Sen. Ted Cruz, and the rest of our Congressional delegation will step up and do the right thing. And there are legislative options, put forward by members of Congress who are actual doctors: Sen. Bill Cassidy (R-La.) has more than 30 bipartisan co-sponsors for his “STOP Surprise Medical Bills Act,” and more than 110 House members have similarly signed on to the “Protecting People from Surprise Medical Bills Act,” sponsored by Rep. Phil Roe (R-Tenn.) and Rep. Raul Ruiz (D-Ca.). Both of these bills solve surprise medical bills using IDR and keep the patients out of it.

We still have a long way to go in facing COVID-19 pandemic. During this time, and the time to come after, one thing should be crystal clear: We cannot make it harder for people to get health care when they need it. Access to health care will be essential as the economy struggles to recover in fits and starts, we need workers and customers who don’t have to worry about finding care if they get sick.

Forcing doctors out of business and pushing hospitals to the brink of financial collapse is no way to fight a pandemic – or to help patients.

This is a necessary solution for millions. A generation later, I am still terrified to go see a doctor because of the uncertainty surrounding every trip. I am still affected by the bad luck I was afflicted with before I could drive a car, vote, or serve our country. A generation later, I still feel the effects of being a pawn in a game I don’t want to play. There is a real opportunity to do something about this now. All it takes is for our elected officials to do it.

Matt Glazer is the past Executive Director of Progress Texas and co-founder of Blue Sky Partners.

The extraordinary danger of being pregnant and uninsured in Texas

Dec 13th, 2019

by Charles Kuffner.

Comments are off for this post

So utterly appalling.

Right there with them

From 2012 through 2015, at least 382 pregnant women and new mothers died in Texas from causes related to pregnancy and childbirth, according to the most recent data available from the Department of State Health Services; since then, hundreds more have likely perished. While their cases reflect the problems that contribute to maternal mortality across the United States — gross medical errors, deeply entrenched racism, structural deficiencies in how care is delivered — another Texas-size factor often plays a significant role: the state’s vast, and growing, problem with health insurance access.

About one in six Texans — just over 5 million people — had no health insurance last year. That’s almost a sixth of all uninsured Americans, more than the entire population of neighboring Louisiana. After trending lower for several years, the Texas rate has been rising again — to 17.7% in 2018, or about twice the national average.

The numbers for women are even worse. Texas has the highest rate of uninsured women of reproductive age in the country; a third were without health coverage in 2018, according to a DSHS survey. In some counties, mainly along the Mexico border, that estimate approaches 40%.

Public health experts have long warned that such gaps can have profound consequences for women’s health across their lifespans and are a critical factor in why the U.S. has the highest rate of maternal deaths in the developed world. Texas’ maternal mortality numbers have been notably troubling, even as errors in key data have complicated efforts to understand what’s going on and led skeptics, including the governor, to question whether there’s really a crisis.

Hardly anyone outside the policy world has taken a deep look at how these insurance gaps play out for women in the second-largest state in the U.S. — at how, in the worst-case scenarios, lack of access to medical care endangers the lives of pregnant women, new mothers and babies.

ProPublica and Vox have spent the last eight months doing just that — combing through government data and reports, medical records and research studies, and talking with scores of women, health care providers, policymakers and families of lost mothers around the state. We learned about Rosa Diaz and dozens of others, mostly women of color, by scouring medical examiner’s databases for sudden, “natural” deaths, then inspecting investigator and autopsy reports for clues about what went wrong.

The picture that emerges is of a system of staggering complexity, riddled with obstacles and cracks, that prioritizes babies over mothers, thwarts women at every turn, frustrates doctors and midwives, and incentivizes substandard care. It’s “the extreme example of a fragmented system that cares about women much more in the context of delivering a healthy baby than the mother’s health in and of itself,” said Eugene Declercq, professor of community health sciences at Boston University School of Public Health.

Most of the mothers whose cases we examined were covered by Medicaid for low-income pregnant women, a state-federal health insurance program that pays for 53% of the births in Texas, more than 200,000 a year, and 43% of all births nationwide. In Texas, the program covers OB-GYN visits, medications, testing and nonobstetric care, from endocrinologists to eye exams.

But the application process is so cumbersome that women in the state have the latest entry to prenatal care in the country, ProPublica and Vox found. It can take months to be seen by regular providers and even longer to access specialists. This poses the greatest danger for high-risk mothers-to-be — as many women on Medicaid are, having had no medical care for significant parts of their lives. Then, roughly two months after delivery, pregnancy Medicaid comes to an end, and the safety net gives way to a cliff. For many new mothers, the result is a medical, emotional and financial disaster.

More than half of all maternal deaths in the U.S. now occur following delivery, according to the Centers for Disease Control and Prevention, with as many as 24% happening six or more weeks after a woman gives birth. In Texas, the proportion of late-postpartum deaths is closer to 40%, with black women bearing the greatest risk. “To lose health care coverage really has a tremendous potential to worsen outcomes,” said Dr. Lisa Hollier, chief medical officer for obstetrics and gynecology for Texas Children’s Health Plan and chair of the state’s maternal mortality review committee.

This is a long excerpt, but there’s a lot more to the story, so please read the whole thing. There are numerous policy decisions at fault here – not expanding Medicaid, low Medicaid reimbursements, cutting off Planned Parenthood and substituting in wholly inadequate alternatives, and more – and all of them can be laid at the feet of the state’s Republican leadership. Whoever runs against Greg Abbott and Dan Patrick and Ken Paxton in 2022 should loudly and repeatedly assert that every maternal death in Texas is their fault. I keep saying this, and it keeps being true: Nothing will change until we have different, and better, government in this state. There’s no other way to do it.

On to the next big financial issue for the city

Aug 18th, 2019

by Charles Kuffner.

Comments are off for this post

It’s always something.

Mayor Sylvester Turner

Four years ago, the main source of Houston’s deteriorating financial health — billions of dollars in unfunded pension obligations — loomed over the race for mayor, promising a massive test for the winner.

Now, Mayor Sylvester Turner, having overhauled the city’s troubled pension systems, is running for re-election and touting the reforms as his signature policy accomplishment. He faces several challengers, including Bill King, the businessman he defeated four years ago, millionaire lawyer and self-funder Tony Buzbee, City Councilman Dwight Boykins who has clashed with the mayor over firefighter pay and former Councilwoman Sue Lovell, as well as a handful of lesser known candidates.

Whoever wins will be forced to confront another simmering financial problem: Houston’s $2.4 billion unfunded liability for retiree health care costs, the result of years of deferred contributions, an aging city workforce and, experts say, growing medical costs that outpace the city’s revenue.

The total has grown in recent years by an average of $160 million a year, or more than $400,000 a day. That is less than the $8.2 billion unfunded pension liability’s $1 million-per-day growth rate, but enough to require swift and sweeping changes, experts and local officials say.

“We’re in the earlier stages in this. It’s not a crisis by any means, but it would be better to address it now,” Controller Chris Brown said. “We don’t want to let this thing grow to another $8 billion unfunded liability. … Let’s pay a little now instead of paying a lot later.”

The unfunded liability refers to the city’s obligations in the coming decades for retired employees’ medical, life and prescription drug insurance, commonly called other post-employment benefits, or OPEB. Houston has covered its OPEB expenses through a pay-as-you-go system, akin to making a minimum credit card payment while the balance grows.

[…]

“We have also been in discussions with the employee groups working toward consensus, while keeping in mind the sacrifices employees have made to help us achieve the city’s historic pension reform,” Turner said.

The proposals align with recommendations from a separate firm, Philadelphia-based PFM, which said in its 10-year Houston financial plan the city should eliminate OPEB coverage altogether for retirees or dependents who have access to other coverage.

Other cities have taken a similar approach, limiting cuts for retirees and older employees who were promised certain benefits, while requiring bigger sacrifices from younger and future employees with more time to prepare.

The good news here is that the city doesn’t need to go through the Lege to fix this, and the basic plan for a fix is already in the works. Mayor Turner will be proposing his plan later in the year, and most likely that will put the city on a path towards containing this problem. There’s still a big piece of the puzzle missing, though.

Even after reigning in the city’s OPEB liability, Brown said, the city faces numerous looming financial problems, including annual deferred maintenance and, in the recent city budget, recurring spending that outstrips recurring revenue. In addition, Houston has been operating under a voter-imposed cap on property tax revenue since 2004 and has trimmed its tax rate to avoid collecting more money than allowed.

“This is another piece of the larger problem that’s looming for the city of Houston, which is the structurally imbalanced budget,” Brown said. “Essentially, we want to be paying for all of our current expenses in the fiscal year in full. And we don’t want to defer anything out, i.e. kick the can down the road.”

Yes, the revenue cap, which costs the city many millions of dollars for no good purpose. There’s a lot the city can do to control costs, but not everything is within its power. Some things just get more expensive over time, and if the city is not allowed to reap the benefit of economic growth, it cannot deal with those expenses. If we can get past this issue, and Mayor Turner gets re-elected, then maybe, just maybe, we can get a rev cap repeal measure on the 2020 ballot. There will never be a friendlier electorate to deal with t.

The Fifth Circuit Obamacare hearing

Jul 10th, 2019

by Charles Kuffner.

5 comments

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Jul 9th, 2019

by Charles Kuffner.

2 comments

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Trump goes all in against health care

Mar 27th, 2019

by Charles Kuffner.

1 comment

Game on.

It’s constitutional – deal with it

The Trump administration wants the federal courts to overturn the Affordable Care Act in its entirety, an escalation of its legal assault against the health care law.

The Justice Department said in a brief filed on Monday that the administration supports a recent district court decision that invalidated all of Obamacare. So it is now the official position of President Trump’s administration that all of the ACA — the private insurance markets that cover 15 million Americans, the Medicaid expansion that covers another 15 million, and the protections for people with preexisting conditions and other regulations — should be nullified.

When combined with Trump’s endorsement of the various Republican legislative plans to repeal and replace Obamacare and other regulatory actions pursued by his subordinates, the Trump administration’s clear, consistent, and unequivocal position is that millions of people should lose their health insurance and that people should not be protected from discrimination based on their medical history.

The Justice Department had previously said that only the ACA’s prohibition on health insurers denying people coverage or charging people higher premiums based on their medical history should fall in the lawsuit being brought by 20 Republican-led states. But their latest brief removed that subtlety, saying that the entire law should go.

Legal experts dismiss the states’ argument as “absurd,” yet they have worried it could find a receptive audience among conservative jurists, given the prior success of anti-Obamacare lawsuits thought to be spurious that still found their way to the Supreme Court.

The argument has already won in the US district court in northern Texas, after all, though that decision is on hold pending appeal.

See here and here for some background. Did we mention this ridiculous lawsuit got its start in Texas? Bad lawsuits seem to be our main export these days. There’s not much we can do about what the Fifth Circuit and SCOTUS will do, but in the meantime, health care is once again a huge issue for the next election. We won once on that, we need to do it again.

Texas is not going to expand Medicaid

Feb 26th, 2019

by Charles Kuffner.

1 comment

Don’t get me wrong, Texas should have expanded Medicaid at its first opportunity. It would do so much to improve health care in the state, including and especially mental health care, which would have significant spillover effects on criminal justice. Other states have passed voter referenda mandating Medicaid expansion, but those states can do that via citizen petition. They don’t have to go through their legislature, which is a requirement here and the place that the effort will go to die.

Rep. Celia Israel

Seeing other states take Medicaid expansion to voters is what Rep. Celia Israel, D-Austin, says gave her the idea to file House Joint Resolution 40. She said she’s frustrated that Texas “has not shown the political fortitude” to expand the program and that giving the decision to voters may take political pressure off of Republicans.

Expanding Medicaid through the Affordable Care Act — also known as Obamacare — has been a nonstarter in the GOP-dominated Texas Legislature. Republicans including Gov. Greg Abbott, Lt. Gov. Dan Patrick and former Gov. Rick Perry have argued that expanding Medicaid would increase health care costs for the state — especially if the federal government ever breaks its promise to help pay for the surge of newly eligible people.

Israel’s strategy so far has included courting Republicans in districts that have lost rural hospitals. Nineteen rural hospitals have closed permanently or temporarily since 2013, according to the Texas Organization of Rural & Community Hospitals.

“I’m getting mixed responses,” Israel said of her progress. “I’m making the case that we have lost so many rural hospitals in Texas, and one of the reasons we wouldn’t have lost those rural hospitals is if we had said yes to expanding Medicaid.”

Anne Dunkelberg, associate director of the Center for Public Policy Priorities, a left-leaning policy organization, said the 2018 election cycle and polls showed that health care is a top issue for voters.

“The bottom line is even though individual members have seen desirability moving in this direction, it’s not something they’re going to fall on their sword and buck their leadership over,” Dunkelberg said.

[…]

State Rep. John Zerwas, chairman of the House Appropriations Committee, attempted an alternative to Medicaid expansion during the 2013 session. The Richmond Republican’s House Bill 3791 would have allowed Texas to receive federal money in the form of block grants to enroll individuals in a private health plan using a sliding-scale subsidy, rather than expanding Medicaid to cover them. The bill also had a “pull the plug” provision if the federal government failed to continue funding. It had some bipartisan support but never reached the House floor for a vote.

He said Medicaid expansion in general still “comes with political radioactivity” that Republicans are hesitant to deal with. Just pursuing a waiver is still “a pretty steep hill to climb.” Zerwas said he doesn’t plan on bringing his bill back and also doesn’t believe Medicaid expansion needs to be taken to voters. He acknowledged that Texas has the highest number of uninsured people in the country but says there’s not a cost-effective way to provide care for the Medicaid population.

“It’s just politics, you know, and I’ve lived through this by virtue of carrying the bill in 2013 and was portrayed as someone who just loved Obamacare and was looking to grow it in the state of Texas,” Zerwas said. “Politically and in my party especially at that time and still so … it continues to be one of those things that Republicans rail against because they see it as a very heavy cost to the state.”

But Sen. Nathan Johnson, D-Dallas, who filed Senate Joint Resolution 34, which also would create a constitutional amendment to expand Medicaid, said that “it should not take a leap of courage to put this on the ballot.” Amid Texas’ problems with the opioid epidemic, maternal mortality and access to mental health services, he said, it would be difficult for lawmakers to go back to their constituents and tell them why they refused to put Medicaid expansion on the ballot.

“It starts to become a bit of an embarrassment,” Johnson said. “I think we have the potential to be a leader in health care. … We have vast resources and tremendous amount of power and will when we decide to employ it.”

I agree with everything Rep. Israel and Sen. Johnson say. As you know, I’ve been beating the drum for Medicaid expansion in Texas since 2011. It’s just that there’s zero Republican support for it – Rep. Zerwas’ watered-down version went nowhere, and no one is coming up behind him with something else. A constitutional amendment, which is what a Joint Resolution is and the only way the Lege can send something to the voters, requires a two-thirds majority in each chamber to pass. It’s highly unlikely there’s a simple majority for this in the House, and zero chance of that in the Senate. What Israel and Johnson and others are doing is valuable and necessary and sure to be a big campaign issue again in 2020. What it’s not is legislation that will pass, not while Republicans are in charge.

Same sex employee benefits lawsuit tossed again

Feb 25th, 2019

by Charles Kuffner.

3 comments

This is great, but as always that’s not the end of it.

The lawsuit dates back to 2013, when pastor Jack Pidgeon and accountant Larry Hicks sued the city to end the policy. In 2015, after the U.S. Supreme Court handed down the landmark Obergefell ruling that opened up marriage rights to same-sex couples in all states, Pidgeon and Hicks continued to pursue the lawsuit, arguing that the decision did not extend to the right to city spousal benefits.

In June 2017, the Texas Supreme Court agreed, ruling unanimously that while same-sex marriage had been made legal, there is still room for state courts to explore the “reach and ramifications” of the landmark Obergefell ruling. The all-Republican high court sent the case back to a Houston trial court for further consideration.

Nearly two years later, Judge Sonya Heath on Monday threw out the case, ruling for Houston in what the city has touted as a major win.

“This is a victory for equality, the law of our nation and human rights,” Houston Mayor Sylvester Turner said in a statement Thursday evening. “I thank our Legal Department for its diligent work defending common sense and fairness, and I’m glad we get to continue the policy established by the city 6 years ago.”

Still, that win won’t go unchallenged. Jared Woodfill, the lawyer who represents Pidgeon and Hicks, said Thursday night that his clients will appeal the ruling — and that he expects the case to land again before the Texas Supreme Court and that it could eventually be decided by the U.S. Supreme Court.

See here, here, and here for some background. There’s a bunch of blathering by Jared Woodfill in the story about how unfair it was that a Democratic judge, who ousted the Republican judge that originally gave him an injunction that was quickly overridden, got to rule on his case, while also gloating that Republican judges up the line and on SCOTUS will surely be in the bag for him. He failed to mention that the only reason this case is still being litigated is because the State Supreme Court bowed to political pressure after initially giving him the brushoff. I don’t know what will happen in this case once the appeals process starts up again, but I do know two things. One is that Woodfill and his crank case plaintiffs represent a shrinking fringe, and two is that we need to win more elections so we can pass some more robust laws protecting the fundamental rights of all Americans. (Honestly, just ensuring that no more bad legislation gets passed would be a big step forward.) Mayor Turner’s press release has more.

Anti-Obamacare ruling appealed

Jan 6th, 2019

by Charles Kuffner.

Comments are off for this post

The big non-Mueller story to follow for 2019.

Best mugshot ever

The Democratic coalition of states battling Texas over the fate of the Affordable Care Act has formally begun the process of challenging a Dec. 14 decision ruling the law unconstitutional in its entirety.

California Attorney General Xavier Becerra, who’s leading the charge, filed a notice of appeal Thursday morning before the U.S. 5th Circuit Court of Appeals. The blue states will ask the federal appeals court to overturn last month’s ruling from U.S. District Judge Reed O’Connor, who declared that President Barack Obama’s signature health care law is unconstitutional after Congress in December 2017 gutted one of its major provisions, the individual mandate.

The notice of appeal marks the next stage of what is expected to be a long-running litigation process that could reach the U.S. Supreme Court. A Texas-led coalition of 20 states kicked the process off nearly a year ago by suing the federal government to kill the law; after the Justice Department sided partially with Texas, the California-led coalition of states stepped in to defend Obamacare in court.

“The wheels start turning as of now,” Becerra said on a press call Thursday morning.

See here and here for the background. Every legal scholar with a shred of integrity has denounced this ruling as ridiculous, but we all know that what matters is what five members of SCOTUS think is legal. One story I read about this noted that the coalition of states defending Obamacare picked up an ally after the 2018 election, the new Attorney General of Colorado. One can only wonder what might be happening today if we could have added a new Attorney General of Texas to this. Alas, we’ll have to file that under What Might Have Been.

Ridiculous anti-Obamacare ruling remains on hold

Jan 2nd, 2019

by Charles Kuffner.

Comments are off for this post

It is what it is.

Best mugshot ever

The federal judge in Texas who ruled the Affordable Care Act unconstitutional said today that the law can stand while his judgment is under appeal.

In his order issuing a stay and final partial judgment in the controversial case, U.S. District Court Judge Reed O’Connor reiterated that he believes the entire ACA cannot stand without its individual mandate penalty, which Congress zeroed out last year. O’Connor argued that appellate judges will agree with his judgment, but said it should not take effect while the case is being appealed. “[M]any everyday Americans would otherwise face great uncertainty,” he wrote.

The judge’s order means that Obamacare will likely remain the law of the land for at least another year. Depending on how the appeals proceed, it also tees up the possibility of a Supreme Court ruling on the case in 2020, during the presidential campaign.

[…]

In his new filing, O’Connor expanded his reasoning for siding with the conservative states seeking to strike down Obamacare, arguing that they have standing to bring the case. This point has been disputed, because the conservative states have struggled to show how the ACA has harmed them.

O’Connor also stressed that “courts must refrain from resolving policy disputes” created by Congress. His conclusions were widely panned, including by conservative legal scholars who maintain that O’Connor continues to misread the law and is engaging in the same judicial activism that he decries.

“I’ve been very critical of Judge O’Connor’s severability analysis, but the standing analysis in these opinions may be even worse — and that’s saying something,” tweeted Jonathan Adler, a Case Western Reserve University law professor who was a legal architect of another major ACA challenge. “I will be gobsmacked if O’Connor’s opinion survives review in the Fifth Circuit.”

O’Connor also noted that four other counts remain unresolved — signaling that even if the appeals court overturns his ruling, conservative states could find further paths to weaken the ACA. The remaining issues include challenges under the Administrative Procedures Act and the Fifth and 10th amendments.

See here for the background. Basically everyone has panned this ruling as legally unsound – I’m being kind here – and most people believe that the ruling will be reversed. I have less faith in the Fifth Circuit than that, but we’ll see. In the meantime, we can’t get a Congress and a President who are committed to providing health care for all soon enough.

Now how much would you pay for that emergency room visit?

Dec 31st, 2018

by Charles Kuffner.

1 comment

Guess higher, and it is a guess because who knows what you’ll wind up getting charged for it.

Fifteen months after Texas enacted a law to bring transparency to the state’s for-profit free-standing emergency rooms, many of the facilities continue to send mixed messages about insurance coverage that could expose unsuspecting patients to surprise medical bills.

A Houston Chronicle review of websites representing the 52 free-standing emergency rooms in the Houston area shows a pattern in which many of the facilities prominently advertise that they “accept” all major private insurance. Some even list the insurers’ names and logos.

But often tucked under pull-down tabs or at the bottom of the page is a notice that the facilities are outside the networks of those insurers, followed by a reassurance that under the Texas insurance code, network status does not matter in emergency treatment, implying patients needn’t worry about coverage.

What the websites fail to disclose is that out-of-network status can result in insurance reimbursements far below the charges, leaving patients on the hook for the remainder of the bill — sometimes thousands of dollars.

“The word ‘accept’ means something very different to them than to the consumer, and they know that when they write their websites,” said Stacey Pogue, senior health policy analyst at the Austin-based Center for Public Policy Priorities. “They do not tell the rest of the story.”

For example, many of the Houston-area facilities advertise that they accept Blue Cross and Blue Shield of Texas, the state’s largest insurer. But the Chronicle’s review found that only five — about 10 percent — are in that insurer’s network.

Those findings are consistent with a statewide report by AARP Texas, to be released Monday at a state Senate committee hearing, that found 77 percent of the state’s 215 free-standing emergency rooms said they “take” or “accept” Blue Cross and Blue Shield insurance, but were out-of-network.

Free-standing emergency rooms defend their websites, describing concerns raised by advocacy groups and Texas lawmakers as manufactured outrage.

“I don’t see a problem with saying they ‘accept,’” said Dr. Carrie de Moor, CEO of Code 3 Emergency Partners, a Frisco-based network of free-standing emergency rooms, urgent care clinics and a telemedicine program. She insisted that patients understand that accepting someone’s insurance is different from being in that company’s network.

It may seem like a hair-splitting distinction, but it can carry high costs, health policy experts said.

Obvious point #1: It’s ridiculous that we live in a society where basic medical needs, including emergency care, are not met. It’s utterly scandalous that prior to the Affordable Care Act, there were thousands upon thousands of bankruptcies caused every year by medical issues. Plenty of other countries have figured this out. Our standard of medical care is no better than theirs. It’s just more expensive.

Obvious point #2: For those who believe in the power of the free market, why is it that medical services, especially those tied to emergency and hospital care, are so utterly opaque when it comes to their pricing? Think of all the other goods and services you buy. In nearly all of them, you know up front how much it’s going to cost. That is universally untrue for the vast majority of medical services, from basics like painkillers and bandages to anaesthesia and specialist fees to higher-end products like EKGs and colonoscopies. There’s no such thing as a free market with unknowable prices. You want to move towards something like a free market in health care, fix that.

The ACA decision

Dec 16th, 2018

by Charles Kuffner.

6 comments

Utterly ridiculous, and likely to be short-lived.

Best mugshot ever

A federal judge in Texas threw a dagger on Friday into the Affordable Care Act, ruling that the entire health-care law is unconstitutional because of a recent change in federal tax law.

The opinion by U.S. District Judge Reed O’Connor overturns all of the sprawling law nationwide.

The ruling came on the eve of the deadline for Americans to sign up for coverage in the federal insurance exchange created under the law.

Since the suit was filed in January, many health-law specialists have viewed its logic as weak but nevertheless have regarded the case as the greatest looming legal threat to the 2010 law, which has been a GOP whipping post ever since and assailed repeatedly in the courts.

The Supreme Court upheld the law as constitutional in 2012 and 2015, though the first of those opinions struck down the ACA’s provision that was to expand Medicaid nationwide, letting each state choose instead. No matter how O’Connor ruled, legal experts have been forecasting that the Texas case would be appealed and could well place the law again before the high court, giving its conservative newest member, Justice Brett Kavenaugh, a first opportunity to take part.

Not mentioned in this story, as it came out very quickly after the ruling was released late Friday afternoon (*), is that the judge also denied the plaintiffs’ request for an injunction. This means that the ruling, which is so absurd that even conservative legal experts who oppose the ACA were appalled by it. What happens next is a bit unclear – there will of course be an appeal, and this will almost certainly go to SCOTUS – but for now this is mostly a big legal turd in the punch bowl. Enjoy that health insurance while you can, sure would be a pity if something happened to it. The Trib, Nicholas Bagley, and Daily Kos, among many others, have more.

The AG race and the lawsuit to kill Obamacare

Sep 27th, 2018

by Charles Kuffner.

Comments are off for this post

I feel like this is a better issue for Justin Nelson than it is for Ken Paxton. Of course, on the down side, for it to really be salient millions of people will have lost health insurance. Not that Ken Paxton cares, of course.

Justin Nelson

Can a Texas-led lawsuit to kill Obamacare boost Democrats even in deep-red Texas?

Justin Nelson sure hopes so. The well-credentialed Austin lawyer is challenging the architect of that case, incumbent Republican Texas Attorney General Ken Paxton, in this fall’s general election, betting that the controversial case can help him overcome the partisan disadvantage that’s proved insurmountable for statewide Democratic candidates for the past two decades.

In February, Paxton — who was indicted in 2015 for securities fraud and has not yet gone to trial — launched a 20-state challenge to the landmark health care law, arguing that after Congress gutted the individual mandate, the rest of the law is unconstitutional and must fall. Critics have cast doubt on the case, from its motivations — many argue it’s rooted partisan politics, not genuine constitutional concerns — to its legal arguments.

As the lawsuit comes into play in races across the country, Nelson’s campaign has seized on it as perhaps its best bet at victory. Focusing on protections for pre-existing conditions — one of the most popular provisions of Obama’s landmark health law — Nelson has framed the lawsuit as his opponent’s attempt to wrench health care away from Texas’ most vulnerable residents. The Democrat brings the issue up almost as often as he cites the criminal charges against his opponent.

Republicans have been running against Obamacare practically since before it passed. But now, as they butt up against a midterm election season widely considered friendly to the Democrats, the issue may be becoming an advantage on the other side. Polling from the Kaiser Family Foundation shows that 75 percent of Americans consider protections for pre-existing conditions “very important.”

[…]

Brendan Steinhauser, a Republican strategist, said the Texas-led lawsuit is “creating a microscope” on a statewide race that tends to fly under the radar.

“To some extent, sure, yes, it keeps the name in the news in a positive way among [Paxton’s] base,” Steinhauser said. But it’s also “giving the Democrats something to use,” he added.

Nelson has pledged to withdraw from the lawsuit on his first day in office. Earlier this month, his camp hosted a protest in a park across the street from the Fort Worth courtroom where Paxton’s staff was asking a federal judge to block Obamacare nationwide. Dozens of protesters wielded signs with messages like “Why Oh Why Are You Killing Me?” and one protester dressed as the grim reaper.

The issue is clearly speaking to voters, Nelson said.

“People come up to me at events and hug me for what I’m doing, speaking out on protections for pre-existing conditions,” Nelson said.

His campaign claims the numbers bear that out. In internal polls, just over half of likely voters had either “serious doubts” or “very serious doubts” about Paxton’s efforts to roll back Obamacare’s protections, a spokeswoman said. Once voters are briefed on Paxton’s background, including on the indictment, she added, Nelson pulls ahead by a small margin.

A Paxton campaign spokesman said the incumbent carries a consistent 10-point lead in his campaign’s polling.

See here, here, and here for the background. I can believe that both candidates’ polling is accurate, or at least plausible. Nelson’s depends on people being aware of the Paxton-led lawsuit and its effect. An injunction from the judge would accomplish that, though I think the judge will heed the request to hold off till after the election. Wouldn’t want to get the rabble all roused up, after all. As the story notes, this lawsuit has been an issue in elections in other states. Breaking through here is harder – dozens of media markets, lots of oxygen being consumed by other races, not that much money in this race, etc – but a little media coverage can’t hurt. The more, the better.

The hearing for the lawsuit to kill Obamacare

Sep 7th, 2018

by Charles Kuffner.

2 comments

Here we go again.

It’s constitutional – deal with it

At the hearing Wednesday, Texas aimed to convince U.S. District Judge Reed O’Connor to block the law across the country as it continues to fight a months- or years-long legal case that could land before the U.S. Supreme Court.

Citing rising health care premiums, Texas says such an injunction is necessary to preserve state sovereignty and to relieve the burden on residents forced to purchase expensive insurance coverage. California counters that temporarily blocking or ending the law would cause more harm to the millions of people insured under it, particularly the 133 million people the state says enjoy the law’s protections for pre-existing conditions. The U.S. Department of Justice, which has taken up many of Texas’ positions in the case, nonetheless sided with California, arguing that an immediate injunction would throw the health care system into chaos.

[…]

Inside the courtroom, where protesters’ shouts were inaudible, Darren McCarty, an assistant attorney general for Texas, argued that “the policies, the merits of the ACA are not on trial here” — just the legality. In that legal argument, McCarty leaned heavily on a 2012 U.S. Supreme Court decision on Obamacare, which upheld the law by construing the “individual mandate,” a penalty for not purchasing insurance, as a tax that Congress has the power to levy. Texas argues that after Congress lowered that fee to $0 in a slate of December 2017 tax cuts, the fee is no longer a tax and thus no longer constitutional. With it must go the rest of the law, the state claims.

“There is no more tax to provide constitutional cover to the individual mandate,” McCarty said. “Once the individual mandate falls, the entire ACA falls.”

California countered that a tax can be a tax even if it doesn’t collect revenue at all times. And, attorneys for the state claim, even if the individual mandate is unconstitutional, the court should let lie “hundreds of perfectly lawful sections,” argued Nimrod Elias, deputy attorney general for California.

The case will likely turn on that question of “severability”— whether one slice of a law, if ruled unconstitutional, must necessarily doom the rest. O’Connor, who nodded along carefully throughout the hearing, lobbed most of his questions at the California attorneys, and many of them focused on whether the various pieces of Obamacare can be unentangled.

Elias said that in the vast majority of cases, the Supreme Court acts with “a scalpel, not a sledgehammer,” leaving in place most of a law even if one provision must be struck. The Texas coalition pointed to a more recent case in which the high court struck an entire law based on a narrow challenge.

O’Connor — a George W. Bush-appointee who has ruled against Obamacare several times, albeit on narrower grounds — also honed in on the question of legislative intent. Texas argued that the individual mandate was a critical piece of the law’s original version. But California argued that in 2017, in gutting the individual mandate without touching the rest of the law, lawmakers made it clear they wanted the law to persist without that provision.

“Would the legislature prefer what is left in statute to no statute at all?” Elias questioned. “We know what Congress intended based on what Congress actually did.”

See here and here for some background. Justin Nelson was at the hearing as well, pressing his attack on Paxton for his ideological assault on so many people’s health care. That really deserves more coverage, but the fact that most everyone outside of Paxton’s bubble thinks his legal argument is ridiculous is probably helping to keep the story on a lower priority. (Well, that and the unending Wurlitzer shitshow that is the Trump administration.) I mean, I may not be a fancypants lawyer, but it sure seems to me that eight years of Republicans vowing to repeal Obamacare plus the entire summer of 2017 trying to repeal Obamacare plus the abject failure to repeal Obamacare would suggest that the Republicans did not intend to repeal Obamacare with the bill that they finally did pass. If they could have they would have, but they couldn’t so they didn’t. I don’t know what else there is to say, but we’re going to have to wait till after the November elections – wouldn’t be prudent to do that before people voted, you know – to find out what this hand-picked judge thinks. Ken Janda, the Dallas Observer, and ThinkProgress have more.

Nelson attacks Paxton over Obamacare lawsuit

Aug 30th, 2018

by Charles Kuffner.

Comments are off for this post

Good.

Justin Nelson

The Democrat challenging Ken Paxton is denouncing the attorney general for suing to wipe out the Affordable Care Act‘s health care protections for Americans with pre-existing conditions.

Justin Nelson, a Houston attorney, plans to hold a rally outside the federal courthouse in Ft. Worth where Paxton’s team will argue its case next week. He’s also launched a webpage urging Texans to share how axing the ACA, also known as Obamacare, will affect their access to health care.

“Paxton is leading the charge to take away pre-existing condition protections not just from all Texans but from all Americans and that is so wrong,” Nelson said in a video message Monday. “We’ve started the hashtag, #MyPreExisting, and on this website you can click on the button below and record your video. Tell us how you are affected in this life and death issue.”

Nelson’s campaign website also includes a list of common pre-existing conditions, like arthritis, sleep apnea and pregnancy. Texans with these conditions and many others could see higher health care costs if the Obamacare protections are rescinded.

[…]

About 27 percent of non-elderly Texans — or around 4.5 million people — have pre-existing conditions that could result in them facing difficulty obtaining insurance if Obamacare is overturned, according to the Kaiser Family Foundation. More than 52 million Americans fall into this category, 20.7 million of whom live in the 20 states suing to end the pre-existing condition protections.

In addition to Texas, officials from Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin are parties to the Obamacare lawsuit.

See here and here for the background. You can feel however you want to feel about Obamacare and Ken Paxton and whatever else, but something that would affect this many people in such a direct fashion ought to be part of the discussion in an election year. Good for Justin Nelson for doing that.

Woodfill and Hotze take their next shot at same sex employee benefits

Aug 19th, 2018

by Charles Kuffner.

2 comments

Here we go again.

Anti-LGBTQ activists are again asking a Harris County judge to halt benefits for the same-sex spouses of Houston city employees, according to a recently filed motion.

The motion for summary judgment in Pidgeon v. Turner, a five-year-old lawsuit challenging the benefits, states that the city should not subsidize same-sex marriages because gay couples cannot produce offspring, “which are needed to ensure economic growth and the survival of the human race.”

The motion also asks Republican Judge Lisa Millard, of the 310th District Family Court, to order the city to “claw back” taxpayer funds spent on the benefits since November 2013, when former Mayor Annise Parker first extended health and life insurance coverage to same-sex spouses. And the court filing suggests that to comply with both state and federal law, the city should eliminate all spousal benefits, including for opposite-sex couples.

The motion for summary judgment was filed July 2 by Jared Woodfill, an attorney for Jack Pidgeon and Larry Hicks, two Houston taxpayers who initially brought their lawsuit in December 2013. Woodfill, a former chair of the Harris County Republican Party, is president of the Conservative Republicans of Texas, which is listed by the Southern Poverty Law Center as an anti-LGBTQ hate group.

In his motion for summary judgment, Woodfill asserts that although the U.S. Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in June 2015, that decision does not require the city to treat same-sex couples equally.

“Obergefell does not require taxpayer subsidies for same-sex marriages — any more than Roe v. Wade requires taxpayers subsidies for abortions,” Woodfill’s motion states.

Alan Bernstein, a spokesman for the city, said it will respond to the motion “in a timely fashion.”

“The City hopes the Judge will be persuaded by the law,” Bernstein said in an email. “The Legal Department defers to the arguments it will make in response.”

See here for previous coverage, and here for the last update. It’s hard to know what will happen here because the basic goal of the lawsuit is so ridiculous and harmful, and the immediate reaction of any decent person who hears about it will be “but marriage is marriage and why would anyone want to do that?” The sad and scary fact is that some people are like that, and that includes some judges. Did I mention that the judge in this case, Lisa Millard, is up for re-election in August? Sonya Heath is her opponent. There’s never been a better time to elect some better judges. Think Progress has more.

Killing Obamacare softly

Jul 23rd, 2018

by Charles Kuffner.

1 comment

With cuts to the budget for state outreach programs. Which doesn’t scan well lyrically, and I doubt any of the people on the pointy end of this will care about how it came to be, but here we are.

It’s constitutional – deal with it

The Trump administration recently announced big cuts to a program that helps people sign up for health insurance through the Affordable Care Act, also known as Obamacare.

Ahead of open enrollment, which starts later this year, the money Texas gets to hire navigators – people who help residents find insurance plans – is getting slashed 86 percent. For the enrollment period ending in January, Texas groups will be able to apply for only up to $1.25 million in federal funds.

“That’s a drop in the bucket,” says Stacey Pogue, a senior policy analyst with the Center for Public Policy Priorities. “That is a tiny amount. It would not go very far when you’re talking about more than 4 million uninsured Texans.”

Pogue says it’s also a small number compared to how much the state has been given in years prior. According to data compiled by the Kaiser Family Foundation, Texas was allotted $9.2 million in navigator grants during the 2016-17 enrollment period.

[…]

Pogue says these cuts are part of the Trump administration’s larger effort to weaken the health care law.

She says this particular cut, though, hurts people who are vulnerable and live in hard-to-reach areas. Cities like Austin, which have groups like Foundation Communities, won’t feel the cuts as much as rural parts of the state.

In other words, people in the parts of the state that voted the most heavily for Trump. It’s like tariffs for sick people. I mean look, this is and has been the playbook from the beginning. The only way forward is to get back to electing candidates who want people to be able to access health care. Until then, I feel like we need a video, to clear the palate a bit:

I feel better now.

Where best to attack Culberson?

Jul 8th, 2018

by Charles Kuffner.

Comments are off for this post

Flooding is an obvious issue, but it’s hardly the only one.

Lizzie Fletcher

After Hurricane Harvey flooded much of Houston – including the hotly contested Seventh Congressional District – Republican incumbent John Culberson used his position on the House Appropriations Committee to stamp his name on billions of dollars in disaster recovery funds.

By February, he could claim a leading hand in securing $141 billion in congressional appropriations to help the victims of the 2017 hurricanes in Texas, Florida and Puerto Rico.

But as the nine-term congressman faces an unusually tough reelection against Democratic challenger Lizzie Pannill Fletcher, the city’s troubled history of flooding and the federal government’s long backlog of flood control projects has come under sharp political attack.

Fletcher, a Houston attorney making her first run for office, argues that Houstonians are paying the price for Culberson’s small government philosophy and a Republican-led Congress that she says has been slow to fund critical improvements to the Addicks and Barker dams, both aging structures that were deemed to be at “high risk” of failure as early as 2004.

She also has homed in on key votes cast by Culberson, who she labels a climate change skeptic, saying that they undermined flood prevention efforts in Texas and across the country.

“We can’t just look at the last nine months,” she said in an interview. “We need to look at the last nine terms.”

It’s a long story and I encourage you to read the whole thing. Culberson has done some things and was the only Texas Republican to avoid making himself a sniveling hypocrite when he supported federal relief funds for New York and New Jersey following Superstorm Sandy, but the fact that the rest of his caucus opposed such funds, and the fact that his party has so greatly prioritized cutting taxes and slashing spending over investing in infrastructure and solving problems just highlights why he doesn’t deserve a pass for a handful of decent votes. He’s part of the problem regardless, and the only way forward is a change of leadership in Congress. He can push the occasional bill and make the odd budget appropriation, but as long as he’s a vote for a Republican Speaker and a body in the count for a Republican House majority, nothing’s going to get done.

All this said, health care was the issue everyone was talking about earlier on, when the House – including John Culberson – was trying to kill the Affordable Care Act. That battle has shifted from Congress to the courthouse again, and that should bring this issue, on which Democrats enjoy an electoral advantage, to the fore. It’s never going to be a bad idea to remind people that Culberson has worked tirelessly to take their health care away. And since we’re only ever allowed to talk about mental illness when there’s another mass shooting, it’s also always a good time to remind people that the single biggest thing Texas can do to boost mental health care is to accept Medicaid expansion, which again John Culberson opposes with every fiber of his being. Flooding is a great and vital issue, with lots to talk about, but it’s not the only one.

Health care needs to be a twofer

Jun 19th, 2018

by Charles Kuffner.

2 comments

Lt. Governor candidate Mike Collier is on the right track here, but he needs to keep going.

Mike Collier

Lieutenant governor hopeful Mike Collier announced his health care reform plan Tuesday, which aims to reduce costs and increase access to health care in Texas.

“Achieving these goals will not be easy,” Collier said in a statement. “But it’s time to get cracking. Doing nothing — the only skill our current governor and lieutenant governor seem to possess — is no longer acceptable.”

Colliers faces incumbent GOP Lt. Gov. Dan Patrick in November’s general election. Patrick has been a fierce opponent of the Affordable Care Act and any move to expand Medicaid, the health care program for the poor and disabled, to include the working poor.

Collier said Texas’ decision not to pay for health care costs for Texans who cannot afford health insurance is “unbelievably stupid,” and said that using federal dollars to close the coverage gap will bring Texas an estimated $9 billion per year in federal dollars and create as many as 250,000 jobs.

Collier said his plan also includes deploying state money to encourage Texans to buy insurance, which he said will drive down the cost of health care.

Additionally, Collier emphasized price transparency and a “Patient Financial Bill of Rights,” which would require insurance companies to provide health care prices in advance, show the availability of less expensive drugs and procedures, and itemize bills “in plain language,” among other requirements.

This is all good, but it’s missing an opportunity. You’ve heard me say this before, but it bears repeating – over and over and over again – that if we’re really going to talk about improving mental health care, which is all we ever talk about after another mass shooting, then we have to talk about expanding Medicaid, because it’s by far the biggest and best way to pay for mental health care for the people who need it. If we’re not talking about expanding Medicaid, then we’re just flapping our lips when we bring up the “mental illness” shibboleth. We need to keep saying this until it starts to sink in. You took a good first step, Mike Collier. Now please take the next steps.

Justice Department drops out of latest Obamacare lawsuit

Jun 9th, 2018

by Charles Kuffner.

58 comments

Which of course was filed in Texas by our felonious Attorney General.

It’s constitutional – deal with it

The Trump administration said Thursday night that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality — a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about.

In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.

The three-page letter from Attorney General Jeff Sessions begins by saying that Justice adopted its position “with the approval of the President of the United States.” The letter acknowledges that the decision not to defend an existing law deviates from history but contends that it is not unprecedented.

The bold swipe at the ACA, a Republican whipping post since its 2010 passage, does not immediately affect any of its provisions. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge who has in other recent cases ruled against more minor aspects.

The administration does not go as far as the Texas attorney general and his counterparts. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid.

By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions.

[…]

In an unusual filing just before 6 p.m. Thursday, when the brief was due, the three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew.

The department’s argument, if adopted by U.S. District Judge Reed O’Connor, “would be breathtaking in its effect,’ said Timothy Jost, a retired Washington and Lee law professor who follows such litigation closely. “Of all of the actions the Trump administration has taken to undermine individual insurance markets, this may be the most destabilizing. . . . [If] I’m an insurer, I don’t know what I am supposed to do or not.”

Jost, an ACA supporter, noted that the administration’s decision not to defend the law comes during the season when participating insurers must file their rates for next year with state regulators. It raises new questions about whether insurers still will be required to charge the same prices to all customers, healthy or sick.

And Topher Spiro, vice president of health policy at the liberal Center for American Progress, said the administration’s legal argument contradicts promises by Trump that he would not tamper with the ACA’s protections for people with preexisting medical conditions.

University of Michigan law professor Nicholas Bagley, another ACA defender, went even further in a blog post. “If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books,” he wrote. “That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.”

See here for the background. The fact that three Justice Department attorneys withdrew from the case rather than be party to this decision is what really stands out to me. Those are the people who believe the most strongly in the Justice Department’s mission. That’s about as loud a statement as they could make.

There’s a coalition of states that was granted standing to the litigation, and they filed a brief in response, so it’s not like the ACA is on its own in the courtroom. But if you’re someone with a pre-existing condition, which is one of the things that is at stake here, or you know someone who has one – and there are some 130 million people who fall into that bucket – then this is what this action means to you. If you need health insurance, the Trump administration and its enablers like Ken Paxton are working to take it away from you. I don’t know about you, but I want to hear a lot more about this between now and Election Day. Washington Monthly, Daily Kos, ThinkProgress, Mother Jones, the Observer, and the Trib have more.

Hey, let’s file another lawsuit to kill Obamacare!

Feb 28th, 2018

by Charles Kuffner.

Comments are off for this post

Sure, why not?

It’s constitutional – deal with it

Texas is suing the federal government over President Barack Obama’s landmark health law — again.

In a 20-state lawsuit filed Monday in federal court, Attorney General Ken Paxton argued that after the passage of the GOP’s tax plan last year — which also repealed a provision of the sweeping legislation known as “Obamacare” that required people to have health insurance — the health law is no longer constitutional.

“Texans have known all along that Obamacare is unlawful, and a divided Supreme Court’s approval rested solely on the flimsy support of Congress’ authority to tax. Congress has now kicked that flimsy support from beneath the law,” Paxton said in a statement Monday. “With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”

Texas has sued the government more than 60 times since 2008, and those efforts haven’t ceased since the Obama administration gave way to that of President Donald Trump last year.

I couldn’t find any other stories about this, so I can’t tell you if any actual legal experts think there’s merit to this. But you know, if Super Legal Genius Ken Paxton thinks it’s a winner, then who am I to argue?

UPDATE: Ian Millhiser calls it “risible” and “‘Gotcha’ litigation”, but notes it was filed in the court of that judge who has issued national injunctions based on Ken Paxton’s flights of fancy before, so who knows.

SCOTUS declines to hear Houston’s appeal of same-sex marriage lawsuit

Dec 5th, 2017

by Charles Kuffner.

1 comment

Disappointing, but nowhere close to the end of the line.

Denying the city of Houston’s request, the U.S. Supreme Court will not review a June decision by the Texas Supreme Court, which ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits.

The high court on Monday announced it would not take up the case — which centers on Houston’s policy to provide spouses of gay and lesbian employees the same government-subsidized marriage benefits it provides to opposite-sex spouses — just months after the city of Houston filed its appeal, arguing the state court’s June decision “disregarded” precedent.

In that decision, the Texas Supreme Court threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits, and it unanimously ordered a trial court to reconsider the case. The ruling found that there’s still room for state courts to explore “the reach and ramifications” of marriage-related issues that resulted from the legalization of same-sex marriage.

That’s despite the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015 and noted that now-defunct marriage laws were unequal in how they denied same-sex couples the benefits afforded to opposite-sex couples.

See here for the previous update. What this means is that the district court needs to reconsider the lawsuit in light of the state Supreme Court’s assertion that Obergefell may have made marriage universal, but it did not specifically address the question of whether same-sex marriages are entitled to the same actual rights and benefits as traditional marriage. If all this sounds to you like unfathomable pinhead-ery, in which the concept of marriage is divided into an upper class and an underclass based on biology and the easily offended sensibilities of a couple of old coots, you’re correct. But this is where we are. The city will continue to provide spousal benefits for all its married employees, as it has the right to do, at least for now. The Chron, the Dallas Observer, the Texas Observer, and the Current have more.

Just a reminder, CHIP is still running out

Dec 3rd, 2017

by Charles Kuffner.

Comments are off for this post

In case you were wondering.

Nearly 400,000 Texas children could lose healthcare coverage in late January unless Congress renews funding for the Children’s Health Insurance Program, a decades-old federal program that provides health care to millions of children across the country.

Texas officials have asked the federal government for $90 million to keep CHIP alive through February, but without that funding, letters could go out later this month from state officials alerting parents that their children’s benefits could be at risk.

Congress allowed the program to expire on Sept. 30, leaving Texas and other states with dwindling coffers. CHIP typically receives bipartisan support, but lawmakers have failed to agree in recent months on how to fund it.

“We’re closely monitoring congressional efforts to reauthorize the program and are hopeful that it will be extended prior to the exhaustion of our current allotment,” said Carrie Williams, a spokeswoman with the Texas of State Health Services. “Based on our conversations with [Centers for Medicare and Medicaid Services] … we are confident that a redistribution of funds will happen.”

[…]

If the state doesn’t get additional funding soon, it will have to begin shutting down the program, officials said. State law requires termination notices go out to parents a month before they lose coverage; those letters would likely go out days before Christmas.

Catherine Troisi, an infectious disease epidemiologist at the University of Texas School of Public Health in Houston, said many children on CHIP have chronic diseases and rely on regular, monthly appointments.

“That’ll put a lot of stress on families who don’t know if they are going to be able to continue to get that kind of care,” she said.

Unlike other states, Texas doesn’t currently have any plans to fund the program. If the state runs out of money, it will send all CHIP recipients to the federal government’s health care marketplace.

See here and here for the background. This is 100% the fault of Congressional Republicans, who let this lapse during their months-long obsession with Obamacare repeal. They’re not paying attention to it now because of the need to cut taxes for millionaires. Better grow up to be rich, kids. It’s your only hope.

Houston’s health care costs

Nov 28th, 2017

by Charles Kuffner.

12 comments

Because dealing with pensions wasn’t enough.

Taxpayers also face a $2.1 billion liability for retiree health care costs in the coming decades, and Houston – like many state and local governments – has not set aside a penny to pay for those promises.

This burden is the city’s “next major long-term fiscal challenge,” according to PFM, a financial analysis firm Houston has hired to recommend ways to shore up its long-shaky books.

Turner said any financial hurdle concerns him, but the far-larger pension problem took precedence, as the city’s recovery from Hurricane Harvey will do now.

“That’s one of many issues that we have to address, but I am very much aware of it,” Turner said. “Let’s just say we tackled the biggest item and then we’ll tackle the other ones as we go. One step at a time.”

These costs for what are known as “Other Post-Employment Benefits” – OPEB for short – have become a growing issue for local governments, thanks to rising health care expenses and an aging population and public workforce. In Houston, retirees comprised a third of all the city’s health care beneficiaries in 2012, up from 18 percent in 1994.

A shift in accounting rules also has played a key role. In 2008, the Governmental Accounting Standards Board began requiring governments to report their retiree health care costs, not as an annual operating expense, but in the same manner as pensions: Trust funds fed by payments from the city and workers on which investment earnings accumulate to pay for benefits over the next few decades.

Houston and many of its peers have never stopped treating the expense as simply an annual bill to be paid, however.

I know nothing about accounting, so I don’t understand the reasoning behind that 2008 change in standards. Be that as it may, the city has a lot more flexibility here in that the Mayor can order changes in the health insurance system. Mayor Parker did exactly that a few years ago, raising premiums and ordering retired employees to enroll in Medicare at age 65. That cut costs by quite a bit at the time, but they have since climbed back up, as health care costs are wont to do. Ultimately, of course, this is a problem that is too big for Houston to solve. Any solution to control health care costs necessarily involves controlling how much doctors and hospitals get paid. In the meantime, entities like Houston will do what they can to manage their own costs, but they’re going to need help in the long run.

By the way, CHIP is still running out

Oct 28th, 2017

by Charles Kuffner.

Comments are off for this post

Just in case you were wondering.

Advocates say Texas will run out of funding for the Children’s Health Insurance Program sooner than they thought. The program, which Congress failed to reauthorize last month, covers nearly 400,000 children from working-class families in the state.

“It’s expected that Texas will run out of CHIP funding in January,” said Adriana Koehler, a policy associate with the advocacy group Texans Care for Children. “With the holidays coming up in the next few months, we really need Congress to get the job done now.”

Just a few months ago, advocates said it was unclear when the state would run out of CHIP funds. Some advocates expected the state had until next September; others said funds would run out in February.

Carrie Williams, a spokesperson with the Texas Health and Human Services Commission, said the funding could run out as early as January.

Williams said the agency pushed up the timeline because of reduced income from co-pays. After Hurricane Harvey hit, the federal government waived co-pays and enrollment fees for CHIP recipients. That meant less money was coming into the program than expected.

“So funds may be exhausted a bit sooner than February,” she said.

See here for the background. One might think that such a fanatically and performatively “pro-life” state like Texas would be full of leaders who would care deeply about 400,000 children losing access to health care, but one would have to be deeply naive to believe it. At this time, it looks like the best bet for action will be CHIP reauthorization as a part of a successful government shutdown hostage negotiation. There’s a sentence I hope I never have to type again. Remember when we had a government that was interested in actually, you know, governing? Those were the days, I tell you.

Sure would be nice if we could not kill CHIP

Oct 6th, 2017

by Charles Kuffner.

Comments are off for this post

Just a thought.

Insurance coverage for more than 390,000 Texas children and pregnant women is in jeopardy after Congress failed to renew authorization for a federal program.

Congressional authorization for the Children’s Health Insurance Program, which provides low-cost health insurance for children from low- and middle-income families, expires Sept. 30.

Without federal funding, Texas has enough money for CHIP to last until February 2018, according to estimates by the Texas Health and Human Services Commission. However, federal lawmakers say they’re working on a plan to continue the program before funding runs out for Texas.

“States don’t want to have to disenroll their kids,” said Maureen Hensley-Quinn, senior program director at National Academy for State Health Policy, a non-partisan group that advises states on health policy. But “there may come a time when [they] have to send families letters” letting them go.

Some other states are in worse shape than we are, not that that’s much consolation. You’d think it would be – what’s that word? – pro-life to not want a program that keeps 400,000 children healthy to not go down the budgetary toilet. I’d feel more reassurance if there were some public statements about this from state leaders, but you know how that goes. As a wise man once said, hold on to your butts. TPM and the Chron have more.

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