Margot Sanger-Katz

But hidden outside this big debate is a harsh reality: If Democrats fail to retake control of the Senate, neither plan has much of a chance to become law.

Elizabeth Warren, the Massachusetts senator, has allied herself with the “Medicare for all” wing of the party, saying she would propose a single-payer system. But on Friday, she released a second plan, a sort of steppingstone along the way that would create a more optional government program. Her transition plan is engineered to pass with only a majority of Senate votes, instead of the 60 usually needed to overcome a filibuster.

But it also includes a long and detailed list of the things she would do if she couldn’t get Congress on board. That section of the report, which is likely to get less attention and draw less criticism than the rest, actually tells us a lot about what health care policy would probably be like in a Warren administration.

President Donald Trump was elected in part on a promise to transform the health care system. His efforts to repeal and replace the Affordable Care Act have been unsuccessful, as Republicans in the Senate are unable to agree on any one solution.

But he has used his regulatory authority to make many of the changes he was unable to achieve through Congress, like expanding the availability of insurance plans that cover fewer benefits; reducing federal funding of Planned Parenthood; permitting states to establish work requirements for Medicaid benefits; and increasing the size of special accounts that workers can use to save money for health care expenses.

He has also pursued other regulatory projects in health care, like his proposal, finalized on Friday, that would require hospitals to publicize the prices they have negotiated with insurance companies. He is allowing states to import drugs from Canada through regulatory power, and aiming to overhaul care for patients with renal disease.

So what would Warren do? Her regulatory agenda can be divided into a few broad categories. But overall, she views executive authority in the same broad way that Trump does. Several of her proposals are likely to end up in court — as several of his have.

Here are the big areas where she has regulatory ideas.

Reverse Trump administration policies

One big chunk of her plan would reverse some Obamacare regulations established by the Trump administration. She would return funding to Planned Parenthood and other reproductive health groups that also offer abortion services, for example. She would restore funding to publicize insurance options. She would eliminate new requirements on Medicaid beneficiaries, such as work requirements and premiums. And she would change rules to restrict the sale of so-called short-term health plans, which don’t follow all the Affordable Care Act’s rules.

She would restore an Obama-administration policy that provided civil rights protections to transgender patients and women with a history of abortions, among other groups.

Expand benefits in existing insurance programs

She would seek to offer subsidies to new groups of people to help them buy health insurance under Obamacare, including legal noncitizen immigrants and the families of people who can obtain coverage for only themselves through work.

She would also seek to add a dental benefit to the Medicare program, by reinterpreting language in the statute that says dental care can be covered only if it is “medically necessary.” And she would change aspects of the Medicaid program, making it easier for states to offer coverage to more people, even if it will cost the government more.

She would write new rules for a 2008 law that requires insurers to cover mental health care in the same way they cover care for physical ailments. The goal is to expand coverage for mental illness and substance abuse across different types of insurance.

Lower drug prices

Warren’s regulatory agenda is perhaps most aggressive in its efforts to limit drug prices. She proposes that the federal government employ never-before-used authority to rescind existing patents on medications that were developed with the help of government funding. She would also expand an infrequently used authority so that the government itself could manufacture certain drugs in public health emergencies. Among the drugs and devices she would target are insulin, EpiPens, antibiotics and medications for hepatitis C, HIV and opioid overdoses.

The list of policies above does not include everything that Warren has proposed. She’d also like to beef up antitrust enforcement in health care, for example. But it gives a sense of the breadth of things she would try to do in health care, even without Congress’s help.

Trump is far from alone in failing to enact his preferred health policies through legislation. Several presidents before him have struggled to pass major health overhauls. As Democrats head into another debate next week, the moderators may want to consider asking candidates what’s on their health care regulatory wish lists. The answer may be far more useful in predicting the shape of their policy agenda than the details of their legislative dreams.

This article originally appeared in

Elizabeth Warren's Backup Backup Health Plan

The Democratic presidential candidates have been fighting over whether they should try to replace the health insurance system with a single government-run plan or create a government-run plan that Americans could choose to join.

Elizabeth Warren’s “Medicare for All” proposal would make substantial shifts to how the United States pays for its health care system. She would eliminate most other forms of coverage and provide all Americans with a generous government-run plan.

To calculate its cost, she has modified estimates from the Urban Institute, a Washington research group that has assessed the legislative proposal she is endorsing.

To pay for it, she has proposed large new taxes, transfer payments and some cuts to government spending. Altogether, her campaign believes health spending under Medicare for All would cost $52 trillion over the next decade, with about half shifting from other sources onto the federal budget.

Now that the plan is public, experts are likely to evaluate both sets of assumptions closely, to see if her estimates are reasonable.

Here’s a summary of what she has proposed on either side of the ledger.

— Change the way Medicare pays for certain types of hospital stays, such as paying a package rate rather than different fees for surgical services, and paying doctors in hospital-owned practices the lower prices paid to those in private practices. ($2.3 trillion)

— Assume that the Medicare for All program itself can operate very leanly. The Urban Institute estimated that Medicare would devote about 6% of its health budget on administrators to decide what and how Medicare would pay for things, and to prevent fraud. In Warren’s plan, that rate is 2.3%. ($1.8 trillion)

— Assume very aggressive drug discounts. Warren believes a government system will be able to reduce spending on drugs substantially, including lowering the prices of branded prescription drugs by 70%. ($1.7 trillion)

— Assume slower growth in health spending over time. The federal government now thinks health spending will increase by 5.5% a year; the Warren campaign assumes 3.9% growth under Medicare for All, closer to the rate of growth in gross domestic product. ($1.1 trillion)

— Assume lower payments to hospitals. The campaign believes hospitals can be paid around 110% of what they are currently paid by Medicare, a number that would cause some hospitals to operate at a loss. Currently, private health insurers often pay a lot more to hospitals than Medicare for similar procedures. ($600 billion)

— Employers would be required to pay fees to the federal government, equivalent to 98% of what they now spend on their employees’ health care. Some companies would be exempt, and companies with unionized workforces would be able to lower this payment if they increased workers’ wages. Currently, companies vary greatly in the cost and generosity of their health benefits, so this fee would vary substantially by firm. ($8.8 trillion)

— States and local governments would be required to make payments to the federal government, similar to what they currently spend on government employee benefits and their share of Medicaid expenses. ($6.1 trillion)

— Corporate taxation would be increased. ($2.9 trillion)

— Tax collections would increase through improvements to IRS enforcement, which Warren believes could raise a lot of money. ($2.3 trillion)

— The top 1% of individual earners would pay new taxes on their capital gains; they would pay taxes on increases in investment value annually, instead of waiting until assets are sold. ($2 trillion)

— Income tax collections would increase, since workers would no longer pay part of their salaries for insurance premiums, which are not taxed now. ($1.4 trillion)

— Billionaires would pay a higher wealth tax than the rate Warren has previously proposed: 6%, up from 3%. ($1 trillion)

— A new financial transactions tax would be imposed on stock trades. ($800 billion)

— Pentagon spending from an overseas contingency fund, often criticized as a slush fund, would be eliminated. ($800 billion)

— Income earned by immigrants, following the passage of her immigration overhaul plan, would provide new tax revenues. ($400 billion)

— A risk fee on the liabilities of banks with more than $50 billion in assets would be introduced. ($100 billion)

Elizabeth Warren's 'Medicare for All' Math

(The Upshot)

The House voted to repeal the Cadillac tax Wednesday, aiming to make permanent what previous Congresses have merely postponed. The tax was a provision of the Affordable Care Act intended to lower health spending and reduce the federal deficit. But Congress has never allowed the tax to go into effect.

Why is it called the Cadillac tax?

It is a weird and anachronistic name, evoking a time when the Cadillac was the paradigmatic luxury vehicle. The idea is that the tax would only apply to the most deluxe health plans.

It would, sort of. The tax is devised to apply to health plans that are expensive. That means it would tend to affect the most generous plans, those offering workers the broadest set of benefits, the most choice of doctors, and the lowest deductibles. But it would also tend to hit some plans that are more typical in their design, but happen to cover a workforce that is older and sicker. In practice, the Cadillac tax may affect both the Cadillac owner and the worker who assembles the cars.

Is my plan a Cadillac plan?

Around 21% of employers offer health plans today that would be eligible for the tax if it goes into effect, according to the Kaiser Family Foundation. The plans that qualify tend to be generous plans, like those offered by companies in very competitive, high-paying industries, or those with unionized workforces. If you use your health plan a lot and have few complaints about it, you might have a Cadillac plan.

To be more precise, if your insurance costs more than $11,000 for an individual plan or $30,000 for a family plan, it might be hit by the tax when it is scheduled to begin in 2022.

Who likes it?

Economists love the Cadillac tax. When Congress considered an earlier postponement of the tax, around 100 of them signed a letter to complain.

The argument for the tax is that our current system, which taxes wages but not health benefits, is distorting. The Cadillac tax, which taxes only the most expensive health plans, makes those bonus benefits more like extra salary. Some employers might still offer them — or they might look to spend less on health care to avoid the tax.

“You can’t get economists to agree about anything — anything!” said Jonathan Gruber, an MIT economist who advised the Obama administration as it was developing the Affordable Care Act. “It raises money, it’s progressive, and it’s efficient. You can’t find a lot of things like that.”

Some deficit hawks also like the Cadillac tax, since, in addition to pushing down the price of health insurance, it was also devised to raise money to pay for other policy priorities.

Who dislikes it?

A lot of people who are not economists. If it ever went into effect, the tax would either increase business’ tax burden or encourage them to offer their workers skimpier insurance. Neither outcome is much of a crowd pleaser.

It was Democrats who passed the Affordable Care Act, but in the years since, many of the party’s leaders have denounced the Cadillac provision. In their 2016 presidential campaigns, both Hillary Clinton and Bernie Sanders campaigned on Cadillac tax repeal. Republicans have a more mixed record on the tax. They tend to be more likely to favor proposals that would tax health benefits like income, but many don’t like the particular design of this tax — or the fact that it was part of Obamacare.

“It’s not popular in any way at all, and it’s not showed any signs of becoming any more popular,” said David Cutler, a Harvard economist who helped advise the Obama administration on health policy. “It’s very hard to find anyone who really wants it.”

Unions, in particular, have long loathed the Cadillac tax. Many of them have negotiated hard to preserve generous health benefits for their workers, often at the expense of salary increases.

If it’s so unpopular, how did it ever become the law?

The Cadillac tax is a good example of a public policy that probably never would have passed on its own. But it did not pass alone — it passed as part of a large package of health overhauls in the Affordable Care Act.

The Democratic leadership in Congress and the Obama White House wanted to be sure the health bill would not increase the federal deficit, even though they also wanted it to expand government-subsidized health coverage to millions of low-income, uninsured Americans. That meant that the law’s writers were looking for ways to trim money out of the existing system in order to pay for the new programs.

The Cadillac tax was appealing because it was estimated to reduce health spending and raise revenue — and all the economists close to Democratic politicians liked it. President Barack Obama was also interested in ideas that would reduce the growth in health care spending, and he was persuaded that this policy could help do that.

The pitch officials made to reluctant lawmakers was that this policy helped pay for policies they loved more.

Is it definitely going to be repealed?

No. The House vote is just one step in the process of a bill becoming a law. The Senate would have to pass similar legislation, and the president would have to sign it. The Republican Senate has voted for previous bills that would delay enactment of the tax, so there may be interest in its permanent repeal. But the Cadillac tax has not been a particular policy priority of Senate leadership, and the Senate Finance Committee has not yet considered a bill to repeal it.

What will it mean if it gets repealed?

In practice, not much. Though the tax has been on the books since Obamacare passed in 2010, its enactment has been continuously postponed. Some businesses have made changes to their plans in anticipation of its enactment, but they are unlikely to return to richer health plans even if it goes away.

On paper, repealing the tax means the federal deficit is estimated to grow in coming years, after it had been scheduled to kick in. A recent estimate from the Congressional Budget Office says that repealing the tax would raise the deficit by $193 billion between 2022 and 2029. That’s more than the federal cost of the entire Children’s Health Insurance Program over a decade.

This article originally appeared in <a href="https://www.nytimes.com/2019/07/20/upshot/cadillac-health-plan-why.html" id="db717608-a58a-3f82-a2a9-0a079cd21bc0">The New York Times</a>.

Is My Health Plan a Cadillac? Why Are We Comparing Health Insurance to Cars?

It’s one of the most common tests in medicine, and it is performed millions of times a year around the country. Should a metabolic blood panel test cost $11 or $952?

Both of these are real, negotiated prices, paid by health insurance companies to laboratories in Jackson, Mississippi, and El Paso, Texas, in 2016. New data, analyzing the health insurance claims of 34 million Americans covered by large commercial insurance companies, shows that enormous swings in price for identical services are common in health care. In just one market — Tampa, Florida — the most expensive blood test costs 40 times as much asthe least expensive one.

If you’re a patient seeking a metabolic blood panel, good luck finding out what it will cost. Although hospitals are now required to publish a list of the prices they would like patients to pay for their services, the amounts that medical providers actually agree to accept from insurance companies tend to remain closely held secrets. Some insurance companies provide consumers with tools to help steer them away from the $450 test, but in many cases you won’t know the price your insurance company agreed to until you get the bill. If you have an insurance deductible, a $400 — or even a $200 — bill for a blood test can be an unpleasant surprise.

Outside of health care, a swing of prices as huge as the one for blood tests in Tampa is unheard-of. Recent studies of the retail prices of ketchup and drywall, for example, showed much less variation. A bottle of Heinz ketchup in the most expensive store in a given market could costsix times as much as it would in the least expensive store. But most bottles of ketchup tended to cost around the same. And, in every case, you would know the price of your ketchup before buying it.

“It’s shocking,” said Amanda Starc, an associate professor at the Kellogg School of Management at Northwestern, who has studied the issue. “The variation in prices in health care is much greater than we see in other industries.”

In some cities, the blood test prices look more like the prices for consumer goods. Most tests in Baltimore cost around $30. Most in Portland, Oregon, cost around $20. But if you live in Miami or Los Angeles, the price becomes much harder to predict.

Hospitals and insurers negotiate over prices in private, and they don’t want competitors to know about the deals they have been able to cut. The data in this article comes from the Health Care Cost Institute, which pools bills from three large insurance companies. (Even the institute can’t say which insurers and providers are attached to the different prices, and it has eliminated certain markets with less competition where it might be easy to guess.)

The Trump administration may eliminate this secrecy, making the prices more common and easier to find. As The Wall Street Journal has reported, the administration has asked for comments on a proposal to require doctors and hospitals to publish negotiated prices.

The institute examined several common procedures and observed two kinds of pricing differences. Prices vary considerably between markets. And, in many metro areas, they range widely between one health care provider and another.

Because these are prices paid by insurance companies, many experts say the differences between markets matter more, because they affect insurance premiums that all those with insurance in that area pay, even if they don’t get a blood test or an operation. On average, a cesarean section birth in the Bay Area costs more than three times as much as one near Louisville, Kentucky, according to the institute’s data.

The average hotel room in the San Francisco area last year cost only around double the average hotel room in Louisville, according to STR, which tracks the industry.

The swing within markets increasingly matters for patients, too, as the share of employer plans with sizable deductibles keeps rising. That means that choosing a provider where your insurance company has failed to strike a good deal could mean significant out-of-pocket costs.

In some cases, prices may be higher because the quality of services or the cost of doing business in a given market is higher. More influential is market power, either that of insurers or hospitals, research shows.

Sherry Glied, a health economist who is the dean of the Wagner School of Public Service at New York University, said a bigger factor is probably how many patients your insurer sends to a given hospital. Popular places are likely to offer better prices, because the insurance company negotiates a bulk discount. The most expensive providers tend to be the ones where the insurance company has little negotiating leverage — and where the service is so rarely used it doesn’t mind the higher price.

“One person buys one hamburger, and another buys 1,000,” she said. “And it completely makes sense that the guy who buys 1,000 hamburgers gets a better price.”

That sort of market power can work in the opposite direction, too. In markets where there is a dominant hospital chain, or a powerful hospital that many patients insist on using, insurers tend to face high prices, with less leverage to bargain the hospitals down. Martin Gaynor, a professor of health economics at Carnegie Mellon University, was a co-author of a recent study showing that in markets where fewer hospitals competed for patients, the hospitals tended to be paid more.

“Some of these really simple diagnostic tests — what the heck?” Gaynor said. “It does mean, in a sense, the market is broken in terms of problems with market power.”

The prices that hospitals and doctors charge to patients who are not in their insurance networks also range widely, and are typically (though not always) higher than the prices that insurers pay. The Obama administration began publishing these list prices for some of the most common medical services on a government website. The Trump administration recently began requiring hospitals to also publish a comprehensive list of prices on their own sites, though the data can be challenging to use.

For years, Jeanne Pinder, who runs the consumer-oriented website Clear Health Costs, has been collecting the cash prices for medical procedures around the country. She said the only health care services with predictable pricing were the cash-only treatments that insurance doesn’t cover, like Lasik eye surgery, Botox and tooth whitening. “When you get into MRIs, ultrasounds and blood tests, they are crazy,” she said. “The secrecy in pricing all over this marketplace encourages this behavior.”

This article originally appeared in <a href="https://www.nytimes.com/2019/04/30/upshot/health-care-huge-price-discrepancies.html" id="b1af7253-83a0-3dd5-a83f-bfaa38685ef9">The New York Times</a>.

How Can the Price of a Common Blood Test Range from $11 to Almost $1,000?

In 1996, the Centers for Disease Control and Prevention stopped funding research into the causes of gun violence. And for decades the field suffered from neglect: low funding and a corresponding limited interest in academia.

Then came a series of high-profile mass shootings. And donations from billionaires. A result has been a recent surge in state and private funding for gun research, and a revival in interest among journal editors and young academics beginning their careers.

“It’s not just the availability of money for research,” said Jeremy Travis, executive vice president for criminal justice at Arnold Ventures. “The zeitgeist has changed.”

Last year, Arnold Ventures, a foundation established by John and Laura Arnold, announced a splashy investment: It would be spending $20 million to fund research grants in the field, administering the grants through the nonpartisan RAND Corp. And Kaiser Permanente, the health care provider, has set aside $2 million for its own research program.

Michael Bloomberg, the media executive and former New York mayor, has been spending on gun research for years. His sponsorship of endowed faculty positions at Johns Hopkins in the Center for Gun Policy and Research has helped several scholars.

States have begun making investments in gun research, too. A $5 million investment from California has led to the formation of the Violence Prevention Research Program at the University of California, Davis. New Jersey’s Legislature approved $2 million to establish a center at Rutgers University. Several more states and the District of Columbia are considering similar programs.

“All these new people are coming,” said Garen Wintemute, a professor who directs the program at Davis. “It used to be a dozen people in the country — now there are a dozen people in my building.”

Wintemute has made gun violence the central topic of his work. But for much of his career, funding was scarce, and he often dipped into his salary to subsidize the costs of his research. He said he expected the new investments to result in significant new advances; he described a big folder of study ideas in his office that might finally be realized.

In Washington, research funding on this divisive topic remains anemic. A recent analysis found that gun research receives substantially less funding from the federal government than research for other major causes of death — only 1.6 percent of the funding the researchers would have predicted based on spending on comparable health problems.

Gun deaths, the majority of which are from suicide, are roughly the same in number as deaths from sepsis, for example. But federal research funding for gun violence is only about 0.7 percent of that for sepsis.

Shani Buggs is part of the new generation of gun researchers. When she went to school for public health seven years ago, she did not even know that violence was a subject she could pursue. She is now a postdoctoral fellow at the gun violence center at UC Davis, studying interactions between drug markets, policing and urban gun violence.

Buggs said that the new money had not been her only motivator, but that it did make her feel more secure about her future.

“It’s exciting,” she said. “What’s most exciting about it is that the increase in dollars will bring more researchers to the field.”

In an Upshot survey last year, researchers expressed interest in knowing more about many subjects, including the factors that lead individuals to commit gun violence — Buggs’ focus. They also sought research into how criminals obtain their guns and the effects of various gun policies, such as new state laws that allow courts to temporarily confiscate guns from people who are deemed a risk to commit violence. Such legislation has passed in 14 states — 11 since 2016.

Research publications on gun violence also appear to be rising, reflecting an enhanced interest by journal editors, not just scholars.

“There’s new names on a lot of these publications,” said Ted Alcorn, an instructor at Columbia whose analysis of gun-related science publications over the past few decades was published in JAMA Internal Medicine. His study found that gun research had declined as a share of science research since the mid-1990s, but that it began to rise sharply in 2012, the year of the Sandy Hook school shooting in Connecticut.

The CDC effectively stopped funding original research on gun violence after the passage of legislation in 1996 (the Dickey Amendment) that barred the use of CDC funds to “advocate or promote gun control.” Republican legislators had objected to government-funded research concluding that having a gun in the home increased the risk of harm. But even before the Dickey amendment, the CDC spent just $2.6 million a year on gun violence research. The National Institutes of Health funds some gun-related research, but not much.

Many major players in the field continue to lobby for a larger federal role, despite the new infusions of outside funding. At a recent hearing before a House appropriations subcommittee, Andrew Morral, a senior behavioral scientist at RAND, said there were some research tasks, like collecting and disseminating national statistics on gun injuries, that required government involvement.

He pointed to other public health crises — like car crashes, HIV and cigarette smoking — in which research led the way to big reductions in mortality.

“If you think of firearms deaths along the lines of traffic crashes and smoking, you think about a really big project,” he said. “I think of this as a large effort of a magnitude that only the federal government would be able to support.”

This article originally appeared in <a href="https://www.nytimes.com/2019/04/17/upshot/gun-research-is-suddenly-hot.html" id="b1a345ea-e679-3b8e-a21f-67d3282181ee">The New York Times</a>.

Gun Research Is Suddenly Hot

Ever since President Donald Trump took office, his appointees have directed federal agencies to draft regulations meant to delay or reverse policies of the Obama administration.

Nearly all the proposals have been tripped up by the same arcane 1946 law governing administrative policies. Just lastweek, two signature administration actions — to add a question about citizenship status to the 2020 census and to allow employers to avoid covering birth control for their workers if they object to it — have been stymied by rulings under the law.

That law, the Administrative Procedure Act, was written to make sure that the executive branch followed some basic steps when it wanted to change policies. Over time, courts have given it additional teeth by requiring regulators to follow certain processes and conduct certain analyses before making changes. The Trump administration appears to have repeatedly failed to hew to those standards.

“I think there was a lot of corner cutting by the administration,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston, who has been critical of shortcuts in the regulatory process by both the Trump and Obama administrations.

An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged and the courts have found for the litigants 28 times.

Some of those rulings may change after appeals to higher courts, but administrative law experts said even the string of lower-court rulings was unusual. In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at NYU who specializes in environmental law. “This is truly aberrational,” he said.

The law gives federal agencies a lot of latitude to write regulations, but it says that major actions have to follow certain steps. For big changes, agencies are supposed to go through what is called “notice and comment.” They must issue a proposal, let the public respond with ideas, then incorporate feedback into a final version.

A lot of the losses came because the administration skipped those steps, instead announcing that it would pause or reverse pending rules — or that some emergency conditions justified an instant regulatory change. An earlier version of the contraceptive rule and several environmental rules, including a suspension of Obama-era methane standards, were attempted without notice and comment.

But even some Trump policies that have followed the usual regulatory steps have been found to run afoul of the law’s standards for administrative process. The law says that the executive branch should be allowed to interpret the law as long as its decisions are not “arbitrary” and “capricious.”

“It’s a core protection against arbitrary governance,” said Gillian Metzger, a professor at Columbia Law School who studies administrative law.

Under modern case law, that means that agencies need to conduct analyses of the rule’s consequences and address serious critiques. But it is still a standard that scholars say is quite deferential to agency preferences, once regulators do the work.

An attempt to allow Kentucky to impose work requirements on Medicaid beneficiaries was knocked down in June for failing to pass the test. The judge ruled that the administration had failed to adequately consider the possible negative consequences of the policy — primarily, that an estimated 95,000 poor Kentuckians would lose their health insurance. The administration went back, added more analysis,and began the program a second time, though the litigation continues.

A recent ruling on changes to the 2020 census also failed the test, according to a federal judge in New York. The judge said Wilbur Ross, the Commerce secretary, broke “a veritable smorgasbord” of federal rules.

The rule-making sloppiness may reflect the president’s enthusiasm for deregulation and the distrust of agency staff by many of his political appointees.

“It’s hard to understand as anything but a combination of haste and ineptitude,” said Nicholas Bagley, a law professor at the University of Michigan, who worked in the Obama administration Justice Department defending its regulations.

In many cases, it is easy enough for regulators to bounce back from a loss on procedural grounds. Trump administration agencies may have better luck with their subsequent efforts, which are now underway in several areas where initial rule-making was rejected by courts. Bagley said he expected the administration would fare better on many rules the second time around.

In other cases, flaws with process may be the least of the problem. Ultimately, regulations are required to comply not just with the Administrative Procedure Act but also with the underlying law that authorized them.

“Sometimes, better analysis would show how harmful the policy is,” Revesz said.

Regulations have always been challenged under the Administrative Procedure Act, and successful challenges of major ones may be getting more common. As Congress has become more gridlocked and as presidents have pushed the boundaries of executive authority, the courts have weighed in more often on boundary-stretching rules.

The Bush administration lost a string of cases over its environmental regulations. The Obama administration absorbed some setbacks, too, including a pause to its regulation on power plant emissions and an appeals court ruling against its creation of the Deferred Action for Childhood Arrivals program to provide legal status to young people whose parents had come to the country illegally.

Studies have shown that, while the differences are small, politics does have a bearing on how closely judges scrutinize the quality of regulatory analysis. In general, judges appointed by Democrats tend to be more skeptical of rules written by Republican administrations and Republican appointees are more dubious about Democratic rule-making.

That means, as the courts become more conservative, the next ambitious Democratic president may also trip over the Administrative Procedure Act.

This article originally appeared in <a href="https://www.nytimes.com/2019/01/22/upshot/for-trump-administration-it-has-been-hard-to-follow-the-rules-on-rules.html" id="f9b01ea8-abb3-3788-a293-9a2690c961f0">The New York Times</a>.

For Trump Administration, It Has Been Hard to Follow the Rules on Rules

When a woman of childbearing age goes to the doctor in most places, she gets standard queries about her smoking, drinking, seat belt use and allergies. In Delaware, she is now also asked: “Do you want to get pregnant in the next year?”

If her answer is no, clinics are being trained to ensure she gets whatever form of birth control she wants that very day, whether a prescription or an implant in her arm.

This simple question — so new that electronic medical record systems had to be modified to record the answer — is part of the state’s effort to remake its approach to contraception. The bet by state officials is that this will both reduce unintended pregnancies and help women escape poverty. It could also reduce state spending on Medicaid.

Working with an organization called Upstream, Delaware has rolled out the program to nearly every medical provider in the state during the past three years. It is having big effects on the number of women requesting and receiving contraception in a state that recently had the nation’s highest rate of unplanned pregnancies.

“For me, to go before my General Assembly and talk about IUDs and implants, I probably wouldn’t have done it,” said Jack Markell, the former Delaware governor who helped bring Upstream to the state. “Not that contraception itself isn’t important, because it is. But, for me, the real hook was about opportunity.”

In committing to contraception on demand, at scale, Delaware faces challenges of logistics and also of trust. There have been past efforts to compel women to use long-acting contraceptives as a condition of probation, and even episodes of forced or unrequested sterilization.

“In this country we have a very long history that is very ugly and very deeply troubling of reproductive coercion,” said Andrea Miller, president of the National Institute for Reproductive Health, an advocacy group. While praising the goal of expanded access, she wondered if Upstream was tipping the scale by first telling patients about long-acting methods because they are “most effective.”

Doctors and health officials in Delaware say they emphasize that patients can choose any contraceptive — or reject them all. “We’re never trying to twist anyone’s arm — never,” said Dr. Karen Antell, a family physician at Christiana Care Health System, who sees patients and helps train other physicians.

Unplanned pregnancies remain astoundingly common. According to the Guttmacher Institute, they represented 45 percent of all pregnancies in the United States in 2011. The majority of abortions, which numbered more than 900,000 in 2014, are in response to unplanned pregnancy, and there are signs that the new program has pushed down Delaware’s abortion rate.

Children whose births are unplanned are likelier to have health complications, to be born into poverty, to stop their education sooner and to earn less. Mothers of unplanned children tend to give birth when they are younger, leave school earlier and earn less when older.

“I think if we’re looking for the biggest levers we have in this country to expand opportunity, one of the most important ones is helping women to achieve their own goals,” said one of Upstream’s founders, Mark Edwards, whose own father was born poor. “The whole conversation about opportunity begins before the child is born.”

Two more states — Washington and Massachusetts — announced this year that they would bring in the company to start similar projects there.

— ‘Set It and Forget It’

There is some resistance to contraception in America — the Roman Catholic Church remains broadly opposed, and some anti-abortion and religious groups object to particular forms — but birth control is mostly uncontroversial. According to data from the Centers for Disease Control and Prevention, 99 percent of sexually active women between 15 and 44 have used some form of contraception.

Access widened in 2012, when the Affordable Care Act started requiring all insurers to cover every form of FDA-approved contraception without any co-payment. (The Trump administration is trying to weaken those rules.) But that does not mean that women are using birth control all the time — or using the methods that work best. Over the course of a year, 70 women out of 1,000 using birth control pills will become pregnant. For women using a hormonal IUD, a small device placed in the uterus, fewer than 4 out of 1,000 will become pregnant.

Use of long-acting devices remains low in the United States compared with other developed nations, in part because of the harmful poor design of an IUD in the 1970s. But modern IUDs are considered very safe. And an implant — a newer, match-size device in a woman’s upper arm — lasts three years and is the most effective form of contraception available.

These devices, often called LARCs, for long-acting reversible contraceptive, change a woman’s fertility default. Without a LARC, preventing pregnancy means taking steps like filling prescriptions and remembering to take a pill every day. With one, a woman will not become pregnant until she takes the step of removing it.

“Set it and forget it,” said Venus Jones, an Upstream trainer. “We call it the Crock-Pot method.”

Long-acting contraceptives tend to cost more. Now, for any woman with insurance, they are free. They have become the top recommendation of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics. Usage has crept higher, to 14 percent of women using contraception in 2014 from 6 percent in 2008.

But there are still hurdles to their use. Much of what Upstream does involves helping practices change their processes: how they manage their inventory of devices; how they bill for their services; how they reshuffle systems to accommodate patients who may come in for something like diabetes and unexpectedly want an implant.

Edwards initially thought that the key to improving contraception care would be training clinicians to insert the devices. But the experience in Delaware revealed the importance of front-office staffers. They do the scheduling, and they spend more time talking to patients than doctors do.

At a training session in Newark, Delaware, Jones played a game with the assembled medical assistants, social workers and nurses. She handed a volunteer a basket and asked the room to imagine what might keep someone from a medical appointment to obtain contraception.

“Taking off of work,” someone suggested. As the ideas piled up — child care, transportation, education, money, religion, culture — objects representing the reasons spilled out of the volunteer’s arms.

“How does she look right now?” Jones said. “She looks overloaded. This is why we don’t say, ‘You want to come back in two weeks?'”

As the front-office staff learned new routines, physicians practiced inserting IUDs using tabletop devices meant to mimic a human birth canal and uterus. The fake uterus had sensors, so the doctors could monitor if they’d hurt their artificial patient, and if they’d put the device in the right spot.

— Debating the Poverty Link

The idea of contraception as a key to economic mobility emerged after the 1960s and 1970s, when contraception and abortion became legal state by state. A string of studies showed that, when birth control arrived, women’s careers and educational attainment improved — and the number of children they had declined.

Isabel Sawhill, a senior fellow at the Brookings Institution, has measured the wide gulfs in outcomes between young women with unintended children and those with planned pregnancies later on. She has written extensively in support of expanded LARC access.

“It’s very expensive and very hard to reduce poverty,” Sawhill said. “Reducing unplanned births is easy by comparison.”

But it is possible that youthful, unplanned pregnancies are a symptom of poverty, more than a cause.

One study of teenagers with unintended pregnancies found only small differences in outcomes between those who had miscarriages and those who delivered babies. A review of the returns on investment from contraception found relatively small effects.

“The causal link is kind of a big question mark,” said Caitlin Myers, an associate professor of economics at Middlebury College, who teaches a class on unplanned parenthood in the United States. Myers said an effort like Delaware’s would improve women’s autonomy and reduce abortions. But she was skeptical that it would necessarily reduce poverty. “To what extent does unintended pregnancy cause bad outcomes versus bad outcomes causing unintended pregnancies? It’s a symptom of poverty, of inequality, of hopelessness about the future.”

— The Results So Far

About seven years ago, as a teenager with no plans of becoming a mother, Sonia Ramirez missed a few birth control pills and gave birth to a son. This fall, at Westside Family Healthcare in Wilmington, Delaware, she was laughing with her doctor at the 28-week checkup ahead of the birth of her next child.

In between came different birth control methods. After her son was born, she used a hormonal IUD, then a copper one. Over those years, she lined up a job she loves and married. When she was ready to have a second child, her physician, Antell, removed her IUD.

Once her daughter is born, she wants another IUD right away. “You don’t have to remember to do anything,” she said.

Delaware officials say they are pleased with the program so far. Upstream, which raises money from foundations and individuals, provided the state with the initial funding and staff to train health professionals, at a cost of about $200 for every woman in the state. While that sounds expensive, Upstream pitches itself as a one-time investment. “It ends up being really cheap if you think of two, three, four, five years of benefit,” Edwards said.

As the program takes hold, health officials hope to find evidence of healthier pregnancies, fewer maternal deaths, lower Medicaid spending and other benefits.

Dr. Karyl Rattay, Delaware’s director of public health, said she had received some letters from people opposed to birth control, but has been surprised by the program’s broad acceptance. She can also point to something that most conservative critics presumably like: The state’s abortion rate dropped a year after Upstream arrived, and the health department expects it to fall again.

That fits with research from the Guttmacher Institute, which credits improved contraceptive access for the recent declines in the country’s abortion rate.

The rate is now the lowest since government measurement began in 1969. An early foundation-funded LARC pilot program among young women in Colorado also pushed down the abortion rate there.

In Delaware, the number of women using some form of birth control has increased. Among the low-income women in the Title X family planning program who were not trying to become pregnant, the proportion choosing an IUD or an implant has jumped to 32 percent last year from 14 percent in 2014. The proportion using no birth control has fallen in half.

Child Trends, a research group helping the state, estimates that the changes will result in a 24 percent decline in unintended pregnancies this year. What that means for the economic trajectory of those women, and any future children they have, will take longer to find out.

This article originally appeared in <a href="https://www.nytimes.com/2018/12/18/upshot/set-it-and-forget-it-how-better-contraception-could-be-a-secret-to-reducing-poverty.html" id="52cac01a-c808-3015-ada8-b06918029bf1">The New York Times</a>.

One-Stop Access to Birth Control as a Bid to Cut Poverty

The rule establishes guidelines for punishing health care institutions with the loss of federal funds if they fail to respect the rights of such workers.

“Just today, we finalized new protections of conscience rights for physicians, pharmacists, nurses, teachers, students and faith-based charities,” Trump said in a Rose Garden event for the National Day of Prayer. “They’ve been wanting to do that for a long time.”

After the 440-page rule was released, some groups said they feared the provisions were overly broad and could imperil care for patients seeking reproductive health care. They also said it could lead to discrimination against gay or transgender patients and their children, and weaken public health efforts to expand childhood vaccinations.

“The rule allows a very wide range of people — from the receptionist to the boards of hospitals and everyone in between — to deny a patient’s medical care if their personal beliefs get in the way,” said Fatima Goss Graves, the president of the National Women’s Law Center. Goss Graves described the rule as not only tightening enforcement of civil rights laws but also changing the balance of rights between patients and their clinicians.

The rule was issued by the Department of Health and Human Services’s Office for Civil Rights, which has been substantially expanded under Trump. The administration has created a conscience and religious freedom division within the office, and the president’s budget sought to expand its funding.

It is part of a portfolio of policy changes meant to broaden religious exemptions for certain types of medical practice. The administration has already created new exemptions from the Affordable Care Act’s requirement that employer health plans cover contraceptive care, though that change has been delayedin court. Another rule, still in its proposed stage, would modify civil rights requirements that bar discrimination by hospitals and insurance companiesagainst transgender patients and women with a history of abortion.

The president foreshadowed the new rule early in his term by signing a “free speech and religious liberty” executive order.

“People and organizations do not have to shed their religious beliefs simply to help others in health care,” said Roger Severino, the director at the HHS office for civil rights. In a conference call with reporters, he noted a series of existing laws to provide protections to those who have religious objections to delivering certain types of care. “We are giving those laws life with this regulation.”

Several conservative and religious groups applauded the new standards, which they said would protect health providers from being compelled to provide services that conflicted with their beliefs.

“Quite frankly, it’s a horrible, awful thing, regardless of what your personal beliefs are about abortions, that a nurse like Cathy DeCarlo was forced to participate in one, despite the fact that she is pro-life,” said Melanie Israel, a research associate at the Heritage Foundation. She was referring to a complaint that a nurse successfully lodged against a New York hospital in 2013. Severino mentioned the same case in his remarks on Thursday.

Israel said the Trump administration’s actions on religious and conscience exemptions had been important not just because of strengthened enforcement, but also because they had brought attention to the issue.

Severino said complaints made to his office had increased sharply. The Obama administration averaged just over one per year. By contrast, the office has received 343 complaints in the last fiscal year alone, Severino said.

A series of civil rights laws has long protected health care workers from offering certain types of care that conflict with their religious beliefs. But the new regulation pulls together 25 separate laws — some dealing only with abortion services, some with advance directives, and many that had typically not been overseen by the department’s Office for Civil Rights — into one broad framework. It also protects workers who not only decline to provide care but also refuse to refer patients to someone who will provide it.

“The goal of the proposed rule was to expand the universe of individuals and conduct that would be protected under the provider conscience laws, and to institute a broader range of enforcement tools and formal requirements,” said Jocelyn Samuels, who was the director of the office for civil rights for part of the Obama administration, and is now the executive director of the Williams Institute at the University of California, Los Angeles. She expressed concern that the rule could affect women’s access to reproductive health care, and care for LGBT patients more generally.

(The Upshot): President Donald Trump on Thursday announced an expanded “conscience rule” to protect health care workers who oppose abortion, sterilization, assisted suicide and other medical procedures on religious or moral grounds.

Margot Sanger-Katz

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