Now that the new Congress is settled in and humming along and the state budget process over, New York health care advocates are pivoting toward them and the Trump administration.  As we look southward toward Washington DC, several categories of focus have emerged   A good number of them carry over from the previous two years since the Trump administration came to power.  However, the legislative landscape has now changed significantly with the shift of balance of power in the House of Representatives.  These include:

• Rebutting the Trump administration’s ongoing moves to sabotage the Affordable Care Act (ACA), dramatically restricting access to Medicaid, and curtail family planning programs and reproductive rights.
• Opposing the Trump administration’s budget proposals for the 2020 fiscal year that begins on October 1^st, particularly those provisions that affect health care and related human services, overall spending priorities, and EVEN MORE tax cuts ultra-rich.
• Improving the Affordable Care Act.
• Expanding coverage under Medicare and Medicaid in various ways.
• Curtailing prescription drug prices.

Digging down into the first two of these areas with more detail in Part I of this series, here’s what’s been coming out of the White House that cause us great concern:

Undermining the ACA – Since taking office, the Trump administration has undertaken a whole variety of efforts to undermine the ACA, including:

• Canceling “cost-sharing reduction reimbursements” to insurers for low-income policyholders who enroll in silver-level ACA health plans.
• Drastically slashing funding for advertising and public-private education/outreach programs during annual ACA open enrollment periods, and for enrollment assisters year-round in states that rely on the federal government’s online ACA marketplace system.  Regional federal government staff were also banned from participating in any local outreach events.
• Canceling IRS enforcement of the “individual mandate” tax penalty for uninsured people who do not enroll in coverage but have no legal exemption.  Eventually, the mandate amount was zeroed out in the Trump tax cut bill of 2017, thereby making it functionally non-existent while still technically on-the-books.
• Loosening the formulas used to calculate premium subsidies for people who buy ACA coverage so that they get less.
• Removing useful information for consumers about the ACA from government websites and social media platforms, and replacing it with propaganda of consumers discussing how the ACA has harmed them.
• Reducing the annual open enrollment period by 50% from 90 to 45 days, and shutting down the online federal marketplace website for “routine maintenance” on Sundays during this period.
• Allowing employers with “religious objections” to refuse to offer coverage of contraceptive care and termination of pregnancies.
• Allowing insurers to sell “junk coverage” through Association Health Plans and Short-Term Limited Benefit Plans, thereby negating the ACA’s requirements for 10 Essential Health Benefits and pre-existing medical condition protections.  The short-term plans were also extended from 90 to 364 days.
• Refusing to defend the ACA against constitutional challenges brought by some states, and eventually openly siding with those states.
• Allowing states to lower standards for comprehensive benefits offered by insurers’ various health plans.

(See also:  https://www.cbpp.org/sabotage-watch-tracking-efforts-to-undermine-the-aca)

Restricting Medicaid – Aside from continuing to try to repeal the expansion of Medicaid created under the ACA, the Trump administration is trying to impose by regulation a variety of ways to restrict eligibility to and use of Medicaid.

• The main way is to allow and outright encourage states to impose a whole lot of red tape and paperwork requirements that require Medicaid applicants and participants to continually prove that either they are a) working at least half-time, or b) qualify for work exemptions based on age, disability, informal caregiving responsibilities, or higher education.
• Methods to discourage enrollment include imposing premiums and co-payments, limiting available drug lists, ending preventive services for children, and non-emergency transportation to hospitals and doctors.
• Methods to restrict eligibility include lock-out periods for non-compliance with various requirements, ending presumptive eligibility for sick patients at hospitals, and imposing lifetime benefit caps.
• Allow states to only do a limited ACA expansion, unilaterally change eligibility criteria without federal approval, exclude abortion care providers, end 90-day retroactive coverage, and end transitional coverage when a family increases its income.
• Urge states to apply for special “block grant” waivers.

 (See also: https://healthlaw.org/resource/sec-1115-waiver-tracking-chart-3-2/)

Many of these moves are being challenged in the federal courts as violating existing Medicaid law, and some rulings are putting them on hold.  However, some of these changes are going ahead in the meantime, and people are losing access to Medicaid and some covered services.

Limiting Reproductive Health Care – Once it became clear that Congress was not going to do so in law, the Trump administration is now moving by regulation to end “Title X” and Medicaid family planning funding to any health care entities that provide abortion counseling, referrals, or care.  This move will primarily effect Planned Parenthood facilities.  Once a final rule is published, there will likely be lawsuits challenging the new policy as illegal.  These steps are in addition to moves to allow employers to deny insurance coverage of contraception if they so choose, based on the religious beliefs of the business’ owners. Further, the administration is allowing any health care provider to refuse to provide reproductive health care services based on religious beliefs, and even to refuse to treat certain patients whatever their health care needs.

Trump budget proposals – As in previous years, looking at the health care provisions as a whole, they embody the general approach of the infamous “Graham-Cassidy” proposal rejected by the Senate two years ago, yet it goes farther.  The “big idea” is to lump all health care and human service funding coming into states (Medicaid, Children’s Health Insurance Program, the ACA, food assistance programs, housing subsidies, income assistance, other “categorical” programs, etc.) into ONE gigantic block grant while simultaneously drastically cutting the total dollar amount of such funding, and dramatically scaling back federal requirements and oversight, all in order to “let states innovate”.  Many fear that what will actually result is a real-world “Hunger Games” wherein states would be saddled to pick up the slack which they could not possible do or manage.  The results would be quite drastic, particularly in states like New York where we have a long history of robust health care and social programs to support struggling individuals and families.

Simultaneously, the Trump administration proposes to reorient spending increases away from the full range of non-defense discretionary spending that funds many health and human service programs, and increase spending on defense and national security.  This change would break a decades-long bipartisan agreement that whatever overall spending increases or decreases happen on one side of the budget (e.g. defense) is comparable to what happens on the other side of the budget (e.g., domestic.)

In addition, the administration proposes to permanently extend the personal income tax cuts included in the Tax Cut and Jobs Act of 2017 (aka “Trump tax cut bill”), most of which benefited the ultra-wealthy.  That bill included tax cuts for large corporations and special interests which already are permanent, but the personal tax cuts were only put in place for 10 years (through 2026.)  Taken together, those cuts blew a whopping $2 trillion hole in the federal budget deficit over the next decade.  Making the personal tax cuts permanent will add another $3 billion to the deficit, leading to a total deficit increase of nearly $5 trillion.  The ONLY way to pay down a deficit of that big a size without raising any taxes of any sort will be to drastically slash spending on major social entitlement programs such as Social Security, Medicare, Medicaid, and SNAP/Food Stamps, as well as the whole range of health, human service, education, and economic development programs.

Advocates’ responses — All 12 Congressmembers from New York City belong to the new House Majority which, as a whole, is publicly opposing all these moves by the Trump administration.  Nonetheless, advocates have been meeting with them to voice our concerns, and support their efforts to lead our nation in a different direction.  In particular, we have been seeking to engage with the two new members of our city’s delegation (Rep. Max Rose whose district encompasses all of Staten Island and parts of southern Brooklyn, and Rep. Alexandria Ocasio-Cortez whose district encompasses parts of southeastern Bronx and western Queens), as well as Rep. Hakeem Jeffries who is now the fourth-highest member of the House Majority leadership.  Other congressmembers from New York of importance are those who serve on the relevant committees of jurisdiction (Ways and Means, Energy and Commerce, Education and Labor, Budget, Appropriations.)  In addition, New York’s senior US Senator, Charles Schumer, is the Minority Leader of the Senate, and our junior Senator, Kirsten Gillibrand, is a candidate for President, so there are lots of opportunities for us to take advantage of, and lots of bases to cover.

In addition to engaging with lawmakers directly, we are also reaching out to everyday New Yorkers to help them understand what’s at stake for them, their families, and our communities, and what they can and should do.  The statewide “Renew the American Promise” (RAP) campaign was established at the beginning of this decade to bring forces together from across New York State in a coordinated effort to defend the broad range of health care and human service programs, and support budget and tax policies that keep them strong.  Simultaneously, RAP is promoting policies to improve and expand these programs to help more New Yorkers in need.  (More on all that in Part II of this series.)  Metro New York Health Care for All helps to anchor RAP along with Citizen Action of New York, New York State Alliance of Retired Americans, and New York Statewide Senior Action Council.  The campaign fosters and guides loose coalitions of groups in strategic regions and congressional districts across the state to take action.

For the first time ever, the New York State Senate Health Committee is holding an official hearing on the “New York Health Act” (NYHA), a bill to create a fully-public universal health care program covering all New York residents. The hearing will be held on Tuesday, May 28th starting at 10 a.m. in Hearing Room A of the Legislative Office Building in Albany, and will be joint with the Assembly Health Committee.  The Committees chairs are encouraging all groups and entities with statewide scope to present testimony on the bill. Official information on this hearing can be found here.

Advocates for universal health care are mobilizing to turn out for the hearing, bear witness to the proceedings, and show support for this bill. FREE buses and car pools are being organized from across the state. People can learn more and RSVP for travel here. Earlier this decade, the Assembly held hearings around the state on the bill, and many everyday New Yorkers showed up for and testified at them, and they also organized press conferences for local media outlets, Now it is the Senate’s turn in the spotlight.

This hearing represents a signficant political step forward for NYHA and gives it further political and legislative legitimacy. Originally introduced in 1992 by long-time Assembly Health Committee Chair Richard Gottfried, it passed then in the Assembly as a symbolic one-house bill in advance of that fall’s statewide elections. It then languished for over two decades, typically getting voted out of his Health Committee and then not moving forward any further. With a new Assembly Speaker (Carl Heastie) coming to power in 2015, interest in the bill improved greatly because of his support, and it has since passed as a one-house bill in the Assembly every year since. However in the Senate, it was never even taken up and debated in the Health Committee by the former Republican Majority, and was typically sponsored by a Minority Democrat, first Eric Schneiderman, then Bill Perkins, and finally Gustavo Rivera. By the end of the 2018 legislative session, support had grown strongly, and all but one Democratic Senator was co-sponsoring the bill.

With the new balance of power in the Senate this year, prospects for the bill moving forward in the Chamber have increased greatly, particularly since Sen. Rivera is now chairing the Health Committee. So far, 30 Senators are co-sponsoring the bill, and another 2 are needed for a simple majority to be on board. Once that happens, it will be taken seriously by the body and its leaders. This hearing will begin that process, and hopes are that once this year’s legislative session ends in late June, the Committee will “take it on the road” to hold regional hearings across the state during the summer and fall, to hear from everyday people statewide, answer questions about it, and educate local media and the broader public. The strategy is to build up a head of steam heading into next year’s legislative session that will start in January.

The substance of the bill itself has evolved quite a lot since its introduction some 25 years ago, to reflect various changes in health care and coverage that have happened over the years, most notably the State Child Health Insurance program created by Congress in the mid-1990s, and the enactment of the Affordable Care Act (ACA) a decade ago, along with more modest incremental reforms enacted here in New York. The big change in the bill this year has been the inclusion of a new “Long-Term Care Amendment” to provide coverage for people who need nursing home care and/or health and personal care services at home or in the community. This new provision has generated much excitement and support in the senior citizen and disability rights communities, as well as from long-term care workers and informal family caregivers.

Advocates view this bill as a template to work from to craft the best possible legislation that can pass through both houses of the Legislature and be signed by the Governor, a process that often takes a bit of time. Then the state will apply for waivers from the federal government to use the many current health care funding streams from it that come to the state to help fund the new program, as allowed under the ACA. Simultaneously, a process will begin here to craft all the necessary rules and regulations, followed by a transition process to phase-in the new system, hopefully by the middle of the next decade if not sooner. All that said and done, New York will be a model for the nation on “what’s next for health care”, and continue our proud, decades-long tradition as a “leader state” on health care issues.

Despite health care being a top-tier issue for voters in last fall’s elections, no major new initiatives were included in the final New York State 2019-20 budget enacted by the Legislature and Governor at the end of March.  The only significant actions taken were to codify provisions of the federal Affordable Care Act (ACA) in state law (up to now it’s existed merely under an Executive Order), and rejecting a proposed cut to a scheduled increase in Medicaid reimbursement rates to hospitals for in-patient services (a move long overdue since rates hadn’t increased in almost a decade.)  While both these steps were sound, much else was left undone.  Otherwise, it was pretty much just a maintenance of the status quo.

Here’s a run-down of what did and didn’t get included:

Expanding and Improving Insurance Coverage:

Most disappointing was the fact that no major initiatives were included to offer new health insurance options to a) immigrants who lack them, b) make health insurance more affordable to buy and/or to use, and c) reach out to those who remain uninsured and get them enrolled.  In particular, advocates were promoting the ideas of 1) expanding the state’s very successful Essential Plan to undocumented immigrants using state-only dollars (the program’s current funding is mostly federal), 2) allowing moderate-income people to buy-in to the Essential Plan if they want, and 3) offering additional premium subsidies to people who currently receive federal ones and/or to those who don’t qualify for federal ones because their income is too high.

Consumer Assistance and Outreach:

ACA Navigators –The program was reauthorized for another 5 years, but with no increased funding to provide a cost-of-living increase since it was set up 5 years ago.  Consequently, community-based, non-profit organizations who comprise the program are now having to raise separate funds from private sources to account for cost increases such as raises in the state’s minimum wage.  This program enrolls people into coverage through Medicaid, the Essential Plan, and private Qualified Health Plans offered on the state’s New York State of Health exchange marketplace.

Community Health Advocates (CHA) – Funding for the state’s officially-designated consumer assistance program was also flatlined, again with no cost-of-living increases since its creation at the beginning of this decade.  CHA is a wildly successful and well-respected ombuds program that helps consumers and patients with all kinds of health care and insurance problems.  Like the Navigator program, CHA is comprised of a statewide network of local community-based non-profit groups, and is anchored by the Community Service Society, Legal Aid Society, Medicare Rights Center, and Empire Justice Center.  (Got a problem?  Contact them!)

Enrollment Outreach – New York has done remarkably well in implementing the ACA, such that our uninusrance rate is now less than 5% generally, and less than 2% for children and adolescents.  Those who remain uninsured are either a) immigrants who have few options beyond Emergency Medicaid, b) eligible for current coverage programs but for some reason who are not yet enrolled, or c) believe they cannot afford to buy coverage given their family income and don’t qualify for public programs.  One good way to help all these people out is to reach them through trusted grassroots community groups who are often small and operate on subsistence budgets.  Unfortunately, the Legislature and Governor rejected calls to create a funding stream for these groups to undertake basic community outreach and education, and help get those still-uninsured to Navigators and other enrollers.

Health Care Delivery:

Charity Care Funding – Since the enactment of the ACA, the state has been required to revamp the formula by which it allocates funds from its Indigent Care Pool (ICP) to hospitals that treat large numbers of uninsured and Medicaid patients, because the pool includes funds from the federal Disproportionate Share Hospital (DSH) program.  Previously, a lot of this money went to some hospitals that treated few such patients or outright refused to admit them other than in an emergency room during a medical emergency.  A transition has been underway, but the final stage of complete changeover has been delayed for several years now. 

In last year’s budget, a multi-stakeholder workgroup was created by the Department of Health to develop proposals to complete the transition.  A subset of the group’s participants comprised of consumer and community advocates and public hospitals produced a set of recommendations, but nothing official was recommended by the Department.  In this year’s budget, absent any positive action, the last vestige of the old formula was scheduled to automatically sunset, and the Governor’s initial budget proposal was silent on the matter.  However, in the final budget, the status quo was continued for another year with no phase-out.

Public Health Services – Article 6 of the state’s Public Health Law provides funding to cities and counties for core public health services for populations with special health care needs.  This year, out of nowhere, a $60 million cut was imposed just on New York City, but no similar cuts affecting any other localities.  These cuts will mean less state funding to New York City for prevention and treatment programs for HIV/AIDS, hepatitis, tuberculosis, sexually-transmitted infections, maternal and child health programs, children’s health clinics and school-based health programs, and public hospital clinics.

Safe Staffing — For years, unions representing nurses in hospitals and nursing homes have called for the state to mandate minimum staff ratios per patient, by department, to assure adequate care and quality of care.  The budget calls for the Department of Health to convene a multi-stakeholder workgroup to study the issue and develop recommendations, with a formal report due by the end of the calendar year.

Other relevant issues:

Tax Revenue – Time after time, year after year, advocates on many issues push for good ideas, only to be told by lawmakers that “there’s not enough money.”  Meanwhile, over several decades now, taxes have been cut at both the federal and state level for large corporations, special industries, and wealthy individuals and families.  With the new political landscape in Albany this year, many health and social service advocates were hopeful that these trends could be significantly reversed to provide more funding for needed programs, restore funding cuts from previous years, and to improve overall “tax fairness”.  Ideas promoted by economic justice advocates included an “ultra-millionaires” tax, a “pied-a-terre” tax, a “mansion tax”, and a “carried interest” tax.

In the final budget, the current millionaires tax was renewed but not expanded, an internet sales tax was created, along with a new “congestion pricing” tax for driving into lower Manhattan (begins in 2021), and a new tax on purchases of luxury residential real estate (valued at $25 million or more.)  Also, annual local property tax increases outside of New York City were capped at 2%.

Overall spending growth – Since taking office in 2011, Governor Cuomo has aimed to limit year-to-year budget increases to 2%, a figure which is totally arbitrary.  The Legislature has always accepted his policy and never challenged it, despite higher trends in overall economic growth and tax receipts.

Fair Elections – The budget authorized the creation of a public financing of elections program.  The program will fund a “small donor matching” system for all statewide and legislative offices (Governor, Comptroller, Attorney General, Senate, Assembly.)  A formal commission was created to develop proposals regarding eligibility thresholds, financing limits, contribution limits, large donor limits, and fusion voting rules.  Commissioners will be appointed by the Governor and majority and minority legislative leaders.  Their recommendations are due by December 1, 2019 and will go into effect within 20 days unless amended or rejected by the full Legislature.

This new campaign finance system will dramatically transform who runs for office on what issues and promises, and who is able to get elected.  New York City has had such a system for two decades and many more community-based and community-focused officials have been elected.  They have enacted many progressive policies on health care and other human service and social justice issues.  In recent years, Suffolk County has also created such a program.

What’s next:

The Legislature will remain in session through late June before adjourning for the year, so there’s still a chance that some of the “left undone” measures could still pass as stand-alone policy bills, with an eye toward teeing them up for next year’s budget process in terms of actual funding.  These issues include:

• protecting and expanding coverage for immigrants.
• codifying the CHA program in statute.
• finishing the transition to a new and better/fairer formula for distributing charity care funding to hospitals.

Other issues we’ll be promoting concern:

• strengthening the state’s “Certificate of Need” oversight process for hospital mergers, downsizing, curtailing of specific services, and outright closures.
• expanding consumer protections against out-of-network surprise medical bills.
• requiring health insurers to maintain existing provider networks and prescription drug formularies during a given plan year.
• requiring pharmacy benefit managers (PBMs) to disclose subcontracts and possible conflicts of interest
• advancing the New York Health Act along the legislative process.

We invite you to join in with us and our Health Care for All New York partners on one or more of the above matters.  Please contact us about any you might be interested in.