Friday, March 31, 2017

Cruising the Web

While Republicans regroup to lick their wounds on trying to replace Obamacare, the country limps on trying to manage health insurance in this strange limbo of uncertainty. And insurance companies have to figure out what they're capable of offering customers for next year. And some are finding that they just can't afford to offer plans under Obamacare.
The biggest question insurers need answered soon is how cost-sharing reduction payments will work under the law this year. Insurers are currently required to lower copays and deductibles for certain low-income Obamacare customers, after which the government reimburses them.

But insurers don't know if those payments, which were the focus of a House lawsuit, are going to continue under Trump.

"If we don't know if those supports are going to be in place, then it is nearly impossible to come up with a good [plan] price," said Ceci Connolly, president and CEO of the Alliance of Community Health Plans, which represents smaller nonprofit plans.

The insurance industry's main lobbying group, America's Health Insurance Plans, is also worried about the lack of guidance on cost-sharing payments.

If the administration stops making payments, that could cause insurers to either flee the individual markets or raise premiums to compensate because they still have to lower copays and deductibles for certain customers, said Cynthia Cox, a health insurance expert with the nonpartisan Kaiser Family Foundation.
We're already seeing this as Anthem Inc. is getting ready to pull out of Obamacare's individual insurance markets.
An exit by Anthem might be devastating to insurance markets created by the Affordable Care Act, which is often called Obamacare. The company, which sells coverage under the Blue Cross and Blue Shield brand in 14 states, is one of the few big insurers that has stuck with the ACA. UnitedHealth Group Inc. and Aetna Inc. have already exited most states, and Humana Inc. is planning to stop offering individual ACA plans entirely for 2018.

If Anthem quits, consumers in parts of Colorado, Kentucky, Missouri and Ohio would be at risk of having no Obamacare insurers for next year, according to an analysis from Axios, a news website. Humana’s exit, similarly, will leave parts of Tennessee with no ACA insurance options, though state officials have said they’re working to attract other insurers.
As David Freeddoso writes, this is a big deal.
In 2017, for the first time, residents of one-third of U.S. counties can choose only one insurance provider. This decision, driven by the company's lack of profitability on the Obamacare exchanges, means that next year there could be zero choices in some places.

At great expense and with many complications in the process, Obamacare created a massive subsidized insurance exchange within the broader individual health insurance market. Today, roughly 12 million Americans participate in that exchange. Premiums there have risen sharply since 2013 due to the fact that so many of the new customers are older and sicker, and also because the insurance is now required to cover many things it didn't have to before.

Yet at the same time, most of the consumers there don't notice, because the taxpayer picks up some or all of the tab in the exchange for people who have lower incomes. That's the part of Obamacare people are most likely to miss. And of course, the other desirable outcome of Obamacare is that so many more people have insurance, at least on paper, even if their deductibles are so high that it amounts to what we once would have called a catastrophic policy.
The problem is that even with the large double-digit premium hikes of recent years, the government subsidies, and a mandate that forces customers to purchase the product under penalty of law, insurers have been mostly losing their shirts in Obamacare's exchanges.

That's why several of the key players have dropped out of the Obamacare exchanges. Seventeen of the 21 non-profit cooperatives that were set up with Obamacare subsidies have already gone out of business. United Health Group and Aetna dropped out of most markets already. Recently, Humana announced that it was quitting Obamacare starting next year.
And now Anthem is signaling that it is dropping out.

The Obama administration had wanted the federal government to pick up these losses from insurance companies, but they didn't write that into the original bill. This issue was tied up in a lawsuit brought by the House of Representatives against the Obama administration. The Republicans charge the Obama administration with spending money without Congressional appropriation. They won at the district court level and the Obama administration appealed it to the U.S. Court of Appeals for the D.C. Circuit. The Trump administration could drop the appeal.
Insurers would incur big losses almost immediately if the cost-sharing payments were to stop, experts say. That could happen if the Trump administration decides to drop the appeal and directs the Treasury Department to stop making cost-sharing payments. In that scenario, “carriers would leave the markets as soon as legally feasible,” Corlette says. While the exact legalities might vary by state, a cessation of payments would likely allow carriers to exit their 2017 contracts partway through this year, Corlette says.
The result could be a death blow to the Obamacare individual market.
Faced with an imminent exodus of carriers from the individual market, lawmakers and administration officials would have an incentive to come back to the negotiating table and hammer out a workable alternative to Obamacare, says Michael Cannon, director of health policy studies at the libertarian Cato Institute and a critic of Obamacare. Indeed, on Monday night Trump tweeted, "The Democrats will make a deal with me on healthcare as soon as Obamacare folds--not long."

Cannon agrees with the trial court opinion that the cost-sharing subsidies are unconstitutional and says Trump would be honoring his oath of office if he rejects them.
Of course, the Trump administration could continue the appeal, but what are the chances that Tom Price will continue fighting a suit that he was part of the House that brought the suit in the first place. Trump could ask Congress to appropriate the money for insurers. Would a Republican-led Congress agree to that?
Alternatively, Trump could seek to gain the Congressional appropriation for the cost-sharing payments that eluded the Obama administration, Capretta says. The president might actually make some headway there, Capretta notes. After all, many lawmakers got an earful of constituents’ concerns about losing coverage at town hall meetings this winter, and they might not want to be seen as hindering the system.
Or we could just remain in this dead/not dead limbo. But the uncertainty may well force more insurance companies out of the exchanges.

Here is where Charles Krauthammer's proposal becomes more feasible.
o why not go for the gold next time? Pass a bill that incorporates phase-three reforms and send it on to the Senate.

September might be the time for resurrecting repeal-and-replace. That's when insurers recalibrate premiums for the coming year, precipitating our annual bout of Obamacare sticker shock. By then, even more insurers will be dropping out of the exchanges, further reducing choice and service. These should help dissipate the pre-emptive nostalgia for Obamacare that emerged during the current debate.

At which point, the House leadership should present a repeal-and-replace that includes such phase-three provisions as tort reform and permitting the buying of insurance across state lines, both of which would significantly lower costs.

Even more significant would be stripping out the heavy-handed Obamacare coverage mandate that dictates what specific medical benefits must be included in every insurance policy in the country, regardless of the purchaser's desires or needs.

Best to mandate nothing. Let the customer decide. A 60-year-old couple doesn't need maternity coverage. Why should they be forced to pay for it? And I don't know about you, but I don't need lactation services.

This would satisfy the House Freedom Caucus' correct insistence on dismantling Obamacare's stifling regulatory straitjacket -- without scaring off moderates who should understand that no one is being denied "essential health benefits." Rather, no one is being required to buy what the Jonathan Grubers of the world have decided everyone must have.

It is true that even if this revised repeal-and-replace passes the House, it might die by filibuster in the Senate. In which case, let the Senate Democrats explain themselves and suffer the consequences. Perhaps, however, such a bill might engender debate and revision -- and come back to the House for an old-fashioned House-Senate conference and a possible compromise. This in and of itself would constitute major progress.

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As Krauthammer warns, the longer the Republicans wait, the more entrenched the idea will become that the federal government is responsible for everyone's health care.
But there is an ideological consideration that could ultimately determine the fate of any Obamacare replacement. Obamacare may turn out to be unworkable, indeed doomed, but it is having a profound effect on the zeitgeist: It is universalizing the idea of universal coverage.

Acceptance of its major premise -- that no one be denied health care -- is more widespread than ever. Even House Speaker Paul Ryan avers that "our goal is to give every American access to quality, affordable health care," making universality an essential premise of his own reform. And look at how sensitive and defensive Republicans have been about the possibility of people losing coverage in any Obamacare repeal.

A broad national consensus is developing that health care is indeed a right. This is historically new. And it carries immense implications for the future. It suggests that we may be heading inexorably to a government-run, single-payer system. It's what Barack Obama once admitted he would have preferred but didn't think the country was ready for. It may be ready now.

As Obamacare continues to unravel, it won't take much for Democrats to abandon that Rube Goldberg wreckage and go for the simplicity and the universality of Medicare-for-all. Republicans will have one last chance to try to persuade the country to remain with a market-based system, preferably one encompassing all the provisions that, for procedural reasons, had been left out of their latest proposal.

Don't be surprised, however, if, in the end, single-payer wins out. Indeed, I wouldn't be terribly surprised if Donald Trump, reading the zeitgeist, pulls the greatest 180 since Disraeli dished the Whigs in 1867 (by radically expanding the franchise) and joins the single-payer side.

Talk about disruption? About kicking over the furniture? That would be an American Krakatoa.
Trump talked in the debates how he liked the idea of single-payer. Then he campaigned for getting rid of Obamacare. Who knows what he really believes or understands about the underlying policy?

So Donald Trump, having solved all other problems facing our country, is now turning to libel laws. He wants to reverse Supreme Court decisions that make it quite difficult for someone in the public eye to win a libel suit.

Since the Supreme Court case, New York Times v. Sullivan, plaintiffs have a heavy burden to win a libel case.
It is indeed hard for public figures to win libel suits. They have to prove that something false was said about them, that it harmed their reputation and that the writer acted with “actual malice.” That last term is misleading, as it has nothing to do with the ordinary meaning of malice in the sense of spite or ill will.

Continue reading the main story
To prove actual malice, a libel plaintiff must show that the writer knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.

That is a high bar, and public figures rarely file libel suits and seldom win them.
Clearly, Trump isn't aware of this case, which was a unanimous decision. It's not going to be overturned any time soon. And he also isn't aware that presidents can't singlehandedly change libel law, especially when the Supreme Court has already spoken. I don't think the NYT has to worry.

The presidential son-in-law, Jared Kushner iw going to be in charge of an effort to overhaul the federal bureaucracy by trying to apply principles from the world of business. How many times have we had a new president come in with the mission to eliminate "waste, fraud, and abuse" in the bureaucracy? I remember Al Gore going the Letterman show to ridicule government regulations on government ashtrays.
Gore brought two ashtrays and read the complex federal regulations on how government-purchased ashtrays must break when dropped.

"This is a designer ashtray because the taxpayers have paid lots of people to specify everything about this, including the testing procedure," Gore said.

He and Letterman then took turns breaking the ashtrays with a hammer. "I know you break ties in the Senate, I didn't know about this," Letterman said.

Gore repeated his themes in the program to cut more than $100 billion waste, saying that the government can, like Detroit's auto-makers, transform itself and do a better job.

"Ten years ago, if somebody had said that in 1993 our car companies will be making the highest-quality cars in the world, most people would have said that can't be done. But they're really doing it."

"We're trying to apply those lessons to the federal government," he said.
Yeah, how did that effort to cut waste in the federal government work out? By the way, it seems rather quaint these days to realize that there were even such things as government ashtrays back then. I wonder if they're allowed to even have ashtrays in offices these days.

But there is a very good reason why no presidential plan to cut waste, fraud, and abuse by apply the principles of business never seem to work out. David French summarizes this futility.
There are innumerable challenges to treating government like a business. One of the most consequential is the fact that you can’t treat government employees like private sector employees. Aside from the tiny slice of presidential appointees, government workers enjoy extraordinary job security, and many of them take full advantage of their freedom to fail. As USA Today discovered a few years back, in some agencies the workers are more likely to die than get laid off or fired. This means that workers can weather virtually any reform effort by merely keeping their heads down and waiting for the latest fad or fashion to pass.

There is no substitute for meaningful incentives, and right now success or failure is more abstract for public employees than it is for private-sector workers. If Google or Facebook should one day falter, they can’t appropriate money from taxpayers to stay in operation. There’s no act of Congress that mandates and protects their existence. So we’re left with a world where employees largely don’t lose their job for individual incompetence, and Congress itself protects agencies from the effects of collective incompetence. I wish Kushner well as he tries to make government great again, but I fear he’s been given a task that he doesn’t have the tools to complete.
I would recommend that Kushner read James Q. Wilson's class book on the subject, Bureaucracy: What Government Agencies Do and Why They Do It. Every year, I have my students read from the introduction to Wilson's book in which he explains why the DMV will never work as efficiently as McDonald's. It's very clever and helps them understand why bureaucracies are going to be inherently inefficient. And I suspect there is nothing that Kushner can do to change that as long as our civil servants have permanent tenure and their salaries are not under the control of their bosses.

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Matthew Continetti reminds us of Chuck Schumer's habit of saying one thing in public and then doing something else. It's all about signalling to certain populations within the party that he's on their side while not actually doing anything to accomplish what they think he's saying he'll accomplish.
This is the self-proclaimed "guardian of Israel" who said he opposed the Iran deal—but then did absolutely nothing to stop it. "In my experience with matters of conscience and great consequence like this, each member ultimately comes to their own conclusion," he said at the time. OK, sure. But they also reach conclusions after lobbying and persuasion from influential figures in their caucus and party. And it is precisely such lobbying and persuasion on an issue he claims is dear to his heart that Schumer did not do. And he didn't do it because leading the opposition to the Iran deal wasn't in his self-interest. Taking a stand against President Obama would have sunk his chances for career advancement. Besides, he must have thought, the deal was going to happen anyway. A regular profile in courage, Chuck Schumer is.

Last November, when Schumer announced he supported Congressman Keith Ellison for chairman of the Democratic National Committee, many of us were surprised. Ellison is on the far left of the Democratic Party, has a history with the anti-Semitic Nation of Islam, and supports Bernie Sanders in his war against the Wall Street bankers that Schumer represents. What was Schumer doing? Here's what he was doing: He knew Ellison had no chance, that the White House would oppose Ellison, that the opposition research would bring Ellison down, but he supported Ellison anyway just to shore up his left flank. He was telling the base he was with them, while telegraphing to the Democratic elites alarmed at Ellison's rise that he was with them too.

Conniving, spineless, duplicitous, misleading, double-crossing—Chuck Schumer is a fitting exemplar for the modern Democratic Party.
Continetti recommends that we take this pattern of Schumer's when assessing his threat that the Democrats will filibuster Gorsuch. He probably knows that he doesn't have the votes for a filibuster. He can get everyone all excited and try to make Gorsuch look like he's some sort of extremist, unqualified candidate after he's eventually sworn in to the Court.
The abortion lobby and liberal activists are pleased with their leader. The donations will keep rolling in. But what is Schumer telling his caucus behind closed doors?
Schumer knows that he either doesn't have the votes for the filibuster or that he does and the Republicans will unleash the nuclear option. Probably the fear of that happening will push more Democrats over to voting for cloture and stopping the filibuster in order to give Trump the possibility of nominating a more conservative judge if there is another opening.
If these senators vote to move the nomination to the floor, Republicans would need one more Democrat to stop the filibuster attempt. Among the possibilities are Michael Bennet, Gorsuch's home-state senator, and Mark Warner, who might want to live it up and assert his centrism. Could that happen? Especially if the Democrats are aware that McConnell probably has the votes to go nuclear, which would not only leave them with Gorsuch on the Court but also free Trump to nominate Bill Pryor or Mike Lee or Kid Rock the next time around? Having the nomination squeak through would allow Schumer to have it both ways: animating his base with a meaningless pose while preserving his leverage. There's a reason he smirks so much.
At some point, I wonder if the more extremist base will realize how Schumer is playing them?

Check out the new Hey,'s Neil Gorsuch meme on Tumblr