Editorial June 16, 2017

TheWeekinCongress.com

Editorial

American Healthcare Act Rises from the Dead

Comments from the Left and the otherwise affected

For the past seven years, Republicans have taken a number of steps to undermine the success of health insurance marketplaces. As insurers announce higher premiums in 2018 or take steps to exit marketplaces altogether, here’s a look at four ways Republicans have caused these actions:

1. Passing TrumpCare & Refusing to Improve the Affordable Care Act (ACA)

The TrumpCare bill passed by House Republicans would take away coverage from 23 million Americans; increase premiums and out-of-pocket costs for millions of Americans; discriminate against Americans with pre-existing conditions; and impose an age tax on older Americans. But Senate Republicans have declined to take up this bill and are now writing their own TrumpCare bill. It remains unclear whether they will be able to pass it. In the meantime, insurers do not know what will be law in the next year and, as a result, are unable to plan and commit to participating in the Affordable Care Act marketplaces.

While Republicans still haven’t reached consensus among themselves on TrumpCare, they have refused to work with Democrats to improve the ACA for all Americans and address challenges still facing the nation’s health care system. For seven years, they have been stonewalling – yet they still don’t have a bill that can pass both chambers and be signed into law.

2. Legal Challenges

State Republican leaders refused to implement the ACA and pursued legal challenges in the courts, including a lawsuit challenging the constitutionality of the law filed in 2011. The following year, the Supreme Court upheld the constitutionality of the law in NFIB v. Sebelius, but it also ruled that the federal government could not compel states to expand coverage through their Medicaid programs. With 19 Republican Governors refusing to expand Medicaid to all those eligible under federal law, consumers face higher premiums in those states. The Urban Institute predicts if all states expanded Medicaid, 5 million uninsured Americans would gain coverage. According to a 2016 report by the Office of The Assistant Secretary for Planning and Evaluation, premiums are about 7% higher in states that did not expand Medicaid.

In 2014, Republicans filed a politically-motivated lawsuit seeking to end cost-sharing reduction payments, which reduce out-of-pocket costs for low-income working families and ensure the continued stability of insurance markets. Republicans in Congress continue to stoke fear and market instability by delaying the legal proceedings and denying certainty for insurers over whether the payments will be made as they set premiums for 2018. In addition, President Trump has issued numerous reckless threats to stop making these payments, sending insurance markets into a tailspin. Already, health care insurers in several states have announced they are exiting the Marketplaces in 2018 as a result of the uncertainty Republicans have created.

3. Weakening the Law

Immediately upon taking office, President Trump signed an executive order that instructed agencies to weaken the Affordable Care Act by not enforcing certain provisions. By signaling to insurers that the law, as written, would no longer be enforced, insurers have to factor that into their decisions about 2018 rates and whether they will participate in the marketplaces at all in this uncertain climate. The continued instability and uncertainty as to whether the Affordable Care Act will be enforced means increased premiums and fewer options for consumers in 2018. In some areas of the country, no qualified health plans may be available on the marketplace as a result of this disruption.

In Congress, Republicans have taken steps to undermine risk mitigation programs that help stabilize the insurance markets. These included risk corridors, which were established to ensure stability in the initial years of the ACA’s implementation, as millions of previously uninsured Americans constituted a new and inherently risky market. In 2014, Republicans inserted a provision in a government funding bill that defunded the risk corridors program. As a result, insurers received a fraction of what was owed under the ACA, amounting to billions in losses for insurers nationwide, which then led to the industry cutting back on coverage and benefits:

“‘Without making necessary changes to coverage and benefits, there was no way for health plans to remain in the market or to offer the kind of coverage as they had in the past without sustaining huge losses,’ said Clare Krusing, spokeswoman for America’s Health Insurance Plans, an industry lobby.” [Kaiser Health News, 2/4/16]

4. Obstructing Outreach and Enrollment

Republicans obstructed efforts to educate Americans and encourage them to enroll in insurance plans at key times. In some states, the state government made it difficult for people to sign up as navigators – individuals who helped consumers enroll in health care. In early 2017 –in the crucial final weeks of open enrollment – President Trump’s Administration drastically scaled back advertising and outreach, which resulted in the first decline in enrollment in the marketplaces since the law was implemented.

What is the result of these Republican actions? Insurance companies are raising premiums or exiting marketplaces because of the instability and uncertainty injected in the market by President Trump and Republicans in Congress. Here are just a few recent examples from across the country:

Ohio: Last week, Anthem announced they would leave marketplaces in Ohio due to the lack of stability and predictability. Anthem had warned the Trump Administration earlier this year that if it did not provide long-term certainty on cost-sharing reduction payments, it would “consider adjusting its rates, changing its product offerings, or exiting certain markets entirely.” The Administration and Republicans in Congress refused to listen and consumers are now paying the price:

“Anthem said it won’t participate on Ohio’s Obamacare exchange next year, citing growing uncertainty over the law’s future in Washington D.C. The insurer ticked off a list of concerns, including ‘continual changes in federal operations, rules and guidance’ and ‘an increasing lack of overall predictability.’ ‘A stable insurance market is dependent on products that create value for consumers through the broad spreading of risk and a known set of conditions upon which rates can be developed,’ the company said in a statement.” [CNN Money, 6/6/17]

Kansas & Missouri: In late May, Blue Cross Blue Shield of Kansas City exited the Kansas City insurance market, citing uncertainty sown by Republicans:

“Blue Cross and Blue Shield of Kansas City announced Wednesday it has decided to exit the Affordable Care Act exchange next year… The decision affects about 67,000 Blue KC customers in 30 counties in western Missouri plus Wyandotte and Johnson counties in Kansas. Most get federal subsidies to purchase health insurance on the exchange… This is unsustainable for our company,” [Danette Wilson, Blue KC’s president and CEO] said. ‘We have a responsibility to our (customers) and the greater community to remain stable and secure, and the uncertain direction of this market is a barrier to our continued participation’ …Trump has said he might let the exchanges collapse on their own, adding more uncertainty to whether the federal subsidies for insurance consumers will continue to be paid out.” [Kansas City Star, 5/24/17]

North Carolina: Blue Cross Blue Shield of North Carolina raised its premiums substantially based on the assumption that President Trump will end cost-sharing reduction payments:

“North Carolina’s largest health insurer is warning its Obamacare members that it may have to hike rates more than 20 percent for the second year in a row, and the reason has everything to do with mixed messages from Washington over subsidy funding. ‘This is an urgent situation, and we simply need to know what the rules of the game are going to be for 2018 in order to hit affordability as well as stability,’ said Brad Wilson, CEO of Blue Cross Blue Shield of North Carolina.” [CNBC, 5/30/17]

Pennsylvania: Pennsylvania Insurance Commissioner Teresa Miller announced that premiums would be 36.8% if Republicans sabotage and repeal the ACA and only 8.8% if they abandon these efforts.

“Miller warned that these increases will be much worse if the federal government takes actions that would change the Affordable Care Act or its enforcement… If the individual mandate is repealed, insurers estimate that they would seek a 23.3 percent rate increase statewide. If cost-sharing reductions are not paid to insurers, the companies would request a 20.3 percent rate increase statewide. If both changes occurred, insurers estimate they would seek an increase of 36.3 percent.” [Pennsylvania Press Release, 6/1/17]

Who is to blame? Insurers agree the rhetoric and actions of President Trump and Republicans in Congress have resulted in harmful consequences for consumers:

Dr. Mario Molina, Former CEO of Molina Healthcare: “One common thread in all these efforts is that Americans who purchase their health coverage through the individual market are the ones harmed, not insurance companies. The administration and Republicans in Congress want you to believe that insurers raising premiums for their plans or exiting the marketplaces all together are consequences of the design of the Affordable Care Act instead of the direct results of their own actions to sabotage the law. Don’t let them fool you.” [U.S. News & World Report Op-ed, 5/30/17]

According to the Kaiser Family Foundation, 61% of the American people agree and say that President Trump and Congressional Republicans are to blame if the Affordable Care Act doesn’t work.

With control of the White House and majorities in both chambers of Congress, Republicans are responsible for our health care system. Democrats in Congress and the American people will continue to hold Republicans responsible for any changes that Americans experience. It’s time for Republicans to stop their sabotage of the American health care system and work with Democrats to improve the ACA and provide quality, affordable health care options for all Americans.

Click here to read the PDF. 

 

Primer on Congressional Investigations

A breaking national scandal, disaster, or crisis often results in a call for an independent investigation to understand the situation and the ramifications for the country. While many will want to get to the truth objectively and completely, many will also have partisan motives, and the question quickly becomes one of “who”: Who has the ability, credibility, and independence to perform an effective and fair investigation? The Administration, a federal agency such as the Department of Justice, an independent body such as a convened “blue ribbon” commission of outside experts, a committee of Congress? Decision-makers have turned to each at different times and in different circumstances during our nation’s history.

Congress plays a constitutionally important, distinct, and sometimes complementary role to executive branch investigations. Compared to Department of Justice investigations that are focused on criminal wrongdoing, Congress has a broader mandate and can unearth troubling information that may be significant, but not necessarily criminal, in nature. Congress is also uniquely positioned for considering legislative solutions to address systemic problems. Special or select Congressional committees investigated Watergate, the Iran-Contra scandal, abuses by the US intelligence community, the federal response to the Katrina disaster, the attacks on the US Embassy in Benghazi, and many other important and even historic topics. Some investigations were successful, some were not. Many of the committees developed needed reforms. While there is no perfect investigative committee, with the right strategy Congress can make the process work and get to the truth.

When it comes to Congressional committees tasked to perform major federal-level investigations, success is dependent on many factors. Some of those factors are out of the control of any investigation, such as the political, social, and historic environment. However, there are key best practices for a Congressional investigation that lead to a much better chance of success:

  • True bipartisanship
  • Adequate tools and resources
  • Clear focus
  • Congressional Leadership support

OVERVIEW OF THE TYPES OF INDEPENDENT FEDERAL INVESTIGATIONS

Many terms are used to describe independent investigations, and in the midst of a crisis or scandal, leaders, pundits, and commentators will bandy about a lot of them. Typically, one understandably hears a call for an independent investigation, especially when politically based interests or other conflicts of interest come into play. There are times when independence from the executive branch is critical for a credible and effective investigation. The types of independent federal investigations are[1]:

  • Special Counsel (or Special Prosecutor)
  • Independent Counsel (or Independent Prosecutor or Special Prosecutor)
  • Presidential Commission (also called a Blue Ribbon or Independent Commission)
  • Congressional Commission (also called a Blue Ribbon or Independent Commission)
  • Select Congressional Committee (also called a Special Committee)
  • Standing Congressional Committee (also called a Permanent Committee)

Each has a set of overlapping investigative tools and powers. All can be effective, though each has different strengths. Many can be granted subpoena power. Some can make public policy recommendations. A couple can pursue criminal prosecutions. Each relies on dedicated staff to ferret out facts.

Special Counsels and Independent Counsels

The executive branch has institutional tools for conducting independent investigations, such as a Special Counsel (also called a Special Prosecutor) established by the Department of Justice. Special Counsels are usually focused on the important but relatively narrow question of whether criminal activity occurred. Under the Attorney General’s current authority and Justice Department regulations, a Special Counsel is relatively more insulated from supervision by the Department’s political leadership than are typical rank-and-file prosecutors.

During the George W. Bush administration, the Justice Department appointed Patrick Fitzgerald as Special Counsel to investigate the unauthorized disclosure of a CIA agent’s identity.[2] A Special Counsel was deemed necessary since it was assumed early on that the investigation could lead to the White House, and political leadership at the Justice Department was of the same party as the President. Fitzgerald’s probe did in fact lead to the White House, and ultimately to Vice President Richard Cheney’s Chief of Staff, who was convicted of perjury for lying to Justice Department investigators.

Under the Justice Department’s regulations, Special Counsels are not fully independent from an Administration, and can be fired by the Attorney General or their designee “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”[3] Furthermore, the Attorney General or their designee “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” In the event the Special Counsel is overruled, the Justice Department must notify Congress in writing about the decision. Congress does not have any direct involvement in the decision to appoint a Special Counsel, but in the past has leveraged the confirmation process for administration appointees to influence the decision.[4]

Another type of criminal investigative body had been the Independent Counsel. Created by law in 1978, the position was designed to be more independent than Special Counsels: they would be appointed by a three-judge panel at the request of the Attorney General, and could only be removed for cause.[5] However, in 1999, after both major political parties criticized independent counsels for being unaccountable, Congress did not reauthorize the statute.[6] As a result, a new law would be required before an Independent Counsel could be appointed.[7]

Investigative Commissions

Congress and the President can establish investigative commissions (sometimes called independent or blue ribbon commissions).[8] These commissions can use only outside experts; only Members of Congress; only executive branch staff; or any combination from any of the three groups. The Congressional Research Service distinguishes Congressional commissions from other government commissions by defining it as “a multi-member independent entity that (1) is established by Congress, (2) exists temporarily, (3) serves in an advisory capacity, (4) is appointed in part or whole by Members of Congress, and (5) reports to Congress.”[9] Between 1989 and 2017, Congress created over 100 policy or investigative commissions. Of those, seven were investigative commissions, given investigative authorities such as the power to subpoena witnesses.[10]

Many of these investigative commissions have proven successful in delving into complex issues, and in establishing clearly determined facts, findings, and recommendations. However, both Congressional and presidential commissions face challenges regarding independence. The challenge with Congressional commissions is that they are created by legislation and require the President’s signature, unless Congress overrides a veto. This makes a Congressional commission a difficult type of investigation to establish if the President or a majority of Congress is hostile to it. The challenge with presidential commissions is that they are sometimes seen as not sufficiently independent. The President’s Commission on CIA Activities within the United States in the 1970s was accused by the then-CIA Director of being too close to the White House and used to “prevent a full investigation” by Congress.[11] A recent presidential commission on “election integrity”[12] was called by the Brennan Center for Justice—which has thoroughly studied the same topic—“not independent of the White House” and “not a credible effort.”[13]

If a commission is established, though, it can be particularly insulated from politics since the membership can be made up of outside experts—many if not all of whom are not or are no longer elected officials.[14] An example of a Congressional commission is the National Commission on Terrorist Attacks Upon the United States, more commonly called the 9/11 Commission,[15] and an example of a presidential commission is the Presidential Commission on the Space Shuttle Challenger Accident[16]: both successfully determined key findings regarding the technical and management causes of these nationally significant and tragic events.

Independence from the Executive Branch?

One key point is the independence of the investigating body. A Special Counsel or commission created by the President’s Attorney General or the President could face hostility from the President or the leadership of the Justice Department. No matter how competent or personally independent the Special Counsel may be, they can always ultimately be fired. This happened during the Watergate inquiry. After the Special Counsel subpoenaed White House recordings, President Nixon ordered his Attorney General to fire the Special Counsel. Similarly, a Congressional commission created by legislation needs the President’s signature, so a White House hostile to an investigation may veto the legislation. By contrast, Congressional committees are under the sole purview and authority of Congress.

Congressional Investigative Committees

Congress has the ability to investigate a broad range of issues.[17] As has been shown by in-depth studies of the history of Congressional investigations, the power and authority of Congress to conduct investigations has been long held and often used.[18] And its powers of investigation are robust. The Supreme Court has held that Congress can investigate any issue that legitimately is in “aid of the legislative function.”[19] The only real limits are political. If sufficient political will within Congress exists to explore an issue, a Congressional investigation can occur and persist.

 

Courtesy Project on Government Oversight


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