Defending Speech and Speakers on Campus

I was recently elected to the Chair of the Academic Council at Duke (the Faculty Senate), and so have been doing a bit of thinking about issues related to how college campuses deal with issues of free speech, association, inquiry and the like. This statement is the best thing that I have read  in the way of general guiding principles (Truth Seeking, Democracy, Freedom of Thought, and Expression). These two paragraphs are especially critical:

None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.

All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.

Three things stand out as key to me here. First, humility. Second, there are facts and things that are true and false. Third, it takes (at least) two sides to have a real conversation. I like this statement as guidance to navigating the many issues related to speech, academic freedom and inquiry on college campuses.

A few more thoughts that deserve later amplification.

This is a great piece by Mike Munger that notes the role of academic freedom that flows from the 1st Amendment protection of freedom of association as the true distinctive of Universities (and not speech, which is a universal freedom of our nation). However, bad, harmful speech often has an asymmetric chilling effect on individuals from groups that have historically been excluded from full membership in the robust discussions envisioned by the statement linked above. And freedom of association is a key way that people can decide which issues to discuss and debate, as well as how and when. So, while the entire University could never rightly be a “safe space” so would it be wrong to say there can be no such “safe spaces” on campus, of a variety of ilks. This may seem to be a paradox.

Similarly, for some members of University communities the term “safe space” is viewed only as a term that applies to intellectual discussion, while for others they have in mind their physical safety. People who are physically afraid have no hope of engaging in intellectual inquiry. Living up the best that a University can be will require continued struggle on many fronts.

The late enrollment penalty and the Duck test

Does the Late Enrollment Penalty (LEP) in the AHCA pass the duck test for taxation?

In 2012’s NFIB vs. Sebelius decision, Chief Justice Roberts, writing the controlling opinion for the majority upheld the Affordable Care Act’s individual mandate.  Justices Ginsberg and Sotomayer argued that the mandate was constitutional for both the logic used by Roberts and more fundamentally as a just exercise of Congress’s power under the Commerce Clause.  Chief Justice Roberts had a much narrower ruling.  He found that the individual mandate penalty was effectively a tax and Congress has the power to tax.

He found that the individual mandate passed the duck test to be considered a tax.

It was collected by the IRS, it was administered by the IRS, enforcement was through a limited set of tools normally used for tax enforcement and it was not punitive or overly coercive in nature.  Therefore it was an allowable tax.  More fundamentally, it quacked, waddled, swam and tasted like a duck so it was a duck.

The LEP is different.

SEC. 2711. ENCOURAGING CONTINUOUS HEALTH INSURANCE COVERAGE.
‘‘(a) PENALTY APPLIED.—
‘‘(1) IN GENERAL.—Notwithstanding section 2701, subject to the succeeding provisions of this section, a health insurance issuer offering health insurance coverage in the individual or small group market shall, in the case of an individual who is an applicable policyholder of such coverage with respect to an enforcement period applicable to enrollments for a plan year beginning with plan year 2019 (or, in the case of enrollments during a special enrollment period, beginning with plan year 2018), increase the monthly premium rate otherwise applicable to such individual for such coverage during each month of such period, by an amount determined under paragraph (2).

‘‘(2) AMOUNT OF PENALTY.—The amount determined under this paragraph for an applicable policyholder enrolling in health insurance coverage described in paragraph (1) for a plan year, with respect to each month during the enforcement period
applicable to enrollments for such plan year, is the amount that is equal to 30 percent of the monthly premium rate otherwise applicable to such applicable policyholder for such coverage during such month.

The LEP differs in several significant manners.  It is not collected by the IRS.  It is paid directly to a private entity.  It is wildly variant in its size depending on age and region.  A 64 year old in North Pole, Alaska will pay a much higher LEP than a 22 year in Pittsburgh, Pennsylvania.

If the three votes on the Supreme Court that voted against the government’s position in NFIB v Sebelius are joined by two of the three Justices who supported Robert’s narrow reading exclusively in support of the individual mandate passing the duck test as a tax, there is significant legal risk to the LEP.

If there is significant legal risk that the LEP could be tossed at any point by a court, insurers who already are modeling a potential death spiral because of the LEP’s weakness and inefficiency would have to further discount its effectiveness when setting premiums or insist on contracts with the Center for Medicare and Medicaid Services (CMS) that mirror the current language on Cost Sharing Reduction subsidies (CSR).  Currently, if CSR subsidies are not paid, insurers can terminate their policies immediately instead of at the end of the year.

If the goal of the Republican Party is to advance a bill that stabilizes a market while making policy changes that they prefer, even deeper fundamental legal and constitutional uncertainty is contra-indicated.

Update #1: From a former clerk for Chief Justice Roberts:

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Death panel nonsense back?

A Florida county Republican Party official said there were “death panels for Medicare beneficiaries over age 74” yesterday at a town hall meeting. There are not. Watching the video, it is unclear if the fellow was just saying something to try and make it through a meeting, or if he really believes this. Both are bad.

Just last week in BMJ Palliative Care (bmjspcare-2016-001182-bhavsar), we published an analysis of the federal register comments for the proposed rule (now policy since Jan 1, 2016) that let Medicare pay physicians for Advance Care Planning in which they discussed wishes and preferences with patients and family members. Very few of the comments submitted were negative, and we entitled the piece “The Death of Outrage Over Talking About Dying.”

Maybe we spoke too soon….

Nrupen A. Bhavsar, Sara Constand, Matthew Harker, Donald H. Taylor, Jr. The Death of Outrage Over Talking About Dying.BMJ Supportive and Palliative Care 2017;early online, accessed February 12, 2017.

An early estimate of the impact of the 1/20/17 ACA executive order

I’ve been playing a bit more with the 2016 and 2017 QHP data in an attempt to figure out the incremental cost of the Trump Executive order.  I think 4.25% is a good lower estimate.

My data is still here:

Data and Methods

I again excluded Kentucky and Louisiana.  Kentucky was switching from Kynect to Healthcare.gov while Louisiana had a mid-year Medicaid Expansion.  I wanted to isolate the effect of the executive order from whatever the general trend in enrollment was.  I used the CMS enrollment snapshot for 2016 and 2017 that contained January 14th.  2016 was goes through January 16 while 2017 only goes through January 14th.  The 2016 report contains two extra days worth of data and more importantly, 2016 contains a deadline day as people who buy coverage by the 15th would see their policy start on February 1st.  We know deadlines spur enrollment.

CMS recognized this problem:

More than 8.8 million Americans were signed up for 2017 coverage through HealthCare.gov as of January 14, 2017. This compares to about 8.7 million sign-ups as of January 14 last year, as Americans continue to demonstrate strong demand for 2017 Marketplace coverage.

So on the 14th of each year, 2017 was running slightly ahead of 2016.  My data due to timing constraints will show 2016 running slightly ahead of 2017.   This is fine as the known flaw in the data favors the argument that the executive order had no impact.

So the question is what was the deviation from 1/15 to 1/31? If the Executive Order and the dropping of advertising and potentially elite knowledge networks disseminating anti-enrollment messaging or more likely fear, uncertainty and doubt about PPACA being a good play?

Analysis and Conclusion

2017 using my known flawed data was running .96% behind 2016 on the January 14th inclusive update.  2017 ended up running 5.25% behind 2016 on Healthcare.gov states.  The increment (using favorable to the null hypothesis data) slowdown in pace that can be attributed to Trump Administration actions is 5.25-.96 or 4.29% of enrollment was lost due to the executive order and other Trump administration actions such as shutting down some outreach and advertising in the last eleven days of enrollment.

4.29% is a minimal level of enrollment loss.  Using the January 14th pace, 2017 was running 1.1% ahead of 2016.  Charles Gaba is collecting data from the state based exchanges.  The state based exchanges ran their own marketing campaigns that did not get shut off on 1/20/17.  He is showing at least a 1.5% enrollment increase.  So more aggressive baselines can credibly argue that the Trump Administration actively discouraged 6% of the market from signing up.

Revisiting Cassidy 2015 as a potential deal

Margot Sanger-Katz from the NY Times flags an interesting pre King vs. Burwell Republican plan that could actually pass the Senate with more than sixty votes.  It was designed to deal with a conservative win in King vs. Burwell.

Let’s look at it with the 53 page PDF here:

Section 101 is the three options a state has if the Supreme Court ruled in favor  in King in King v Burwell and thus knocking out advanced premium tax credits for people who lived in Healthcare.gov states.

Option 1 would be to stay under PPACA and establish a state based exchange. Option 2 would be a complete withdrawal from PPACA with no subsidies. Option 3 would be to establish a HSA-like equivalent of coverage with most of the regulator requirements, taxes and mandates of PPACA thrown out. This is actually interesting if the funding makes sense. The default assumption is a complete opt-out. States would have to to opt into either Option 1 or Option 3.

Section 102 talks about the state alternative with HSA. It wipes out mandates and federal regulation. Essential health benefits, minimal actuarial value coverage and other regulatory requirements of PPACA that define a qualified health plan also are junked in this section. 102-4-A authorizes an initial HSA grant and the rest of 102-4 describes the mechanics of that grant. 102-C establishes a public health block grant that is 2% of the eligible funds for the HSA.

Section 103 determines the size of the HSA subsidy. This is where the money matters. The HSA amount is age and geography adjusted which is very similar in function as the ACA benchmark Silver is determined by zip code and age of the recipient. Bingo — 103-1-B is meaty.
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Is there any space for a Medicaid deal in N.C.?

Yesterday, a federal judge issued a 14 day temporary restraining order against the federal government granting the Cooper Administration’s request for Medicaid expansion. I am unsure if there will be more federal judges or if this is the end of the Governor’s request, because 14 days is lots longer than the Obama Administration has left.

In the longer run, is there any space for a Medicaid deal between the Governor and the General Assembly? A few thoughts:

  • North Carolina’s pending Medicaid 1115 waiver will be taken up by the Trump Administration. I doubt a Clinton Administration would have granted it without an expansion of coverage, but who knows what the Trump administration will do on any topic. But, the executive branch implements changes to Medicaid and typically negotiates with CMS about such things. Governor Cooper has obviously shown policy initiative here whether you agree with what he did about expanding Medicaid, or not. And he has nominated a seasoned health policy professional with great experience running CMS as his own Secretary of HHS–you couldn’t ask for a more capable secretary to lead a negotiation with CMS and to roll out a reform. The General Assembly needs the Governor and his team to bring about the reforms they desire for Medicaid.
  • The Governor showed the policy priority that is coverage expansion for Democrats by stating his intent to expand Medicaid as he did, at some risk politically. That may be dead, but the winds of health reform that have blown nationally in the face of Dems politically for the past 6 years are getting ready to change 180 degrees (google loss aversion). There will almost certainly be some maintenance of extra federal monies to states for expanding coverage to low income persons (just look at the GOP Senators asking for this in States that have expanded), and if there is not a maintenance of the private insurance coverage gains that have come via the ACA, there are going to be 500,000 angry North Carolinian’s with subsidized coverage today who no longer have it. To expand coverage, the Governor will need to the General Assembly to finance North Carolina’s share of any such coverage expansion using federal money with presumably fewer strings attached than in the ACA 1.0.
  • I can think of one big idea that could improve the odds of a deal. First, assuming new flexibility for states in Health Reform 2.0, I would suggest the state saying we will work to expand coverage of low income persons and reforming the delivery system while giving the federal government the responsibility for financing Long Term Care in Medicaid, especially for the so-called dual eligibles who are covered by Medicare and Medicaid (much reading on this here). The dual eligibles are the most expensive part of Medicaid and their care wasn’t changed by the ACA, and the pending 1115 waiver doesn’t address dual eligibles. Off-loading financial responsibility for this group while taking more responsibility for low income persons in return for flexibility in how that is done is a trade that makes sense for N.C. because this effort can more directly help us move towards a stable safety net and individual insurance market to run along side our employer based insurance system.

The short, and obvious answer is that the Governor and the General Assembly need each other to achieve their goals. And the people of North Carolina need for them to figure this out. Perhaps the policy space needs to expand to work out a deal that makes sense for everyone.

What is happening in North Carolina?

The North Carolina General Assembly special session for Hurricane and wildfire relief quickly gave way to another session that moved political power from the incoming Democratic Governor-elect Roy Cooper, to the Republican-controlled General Assembly.

I don’t think this was a coup (no one was murdered) but I think it was far worse than the latest in a tit-for-tat in the long running duel between the Office of the Governor and the General Assembly. There are two key aspects that distinguish the most recent events from those of 1976 and 1988, and the age old impulse of those in power to want to remain there.

First, the Democratic party that ruled North Carolina for 50 years had broad ideological diversity within the party, in large part because the Republican Party essentially didn’t exist East of I-95. I remember asking my granddaddy P.L. Barrow, who was a Tobacco Farmer and the Sheriff of Greene County in the 1960s and 1970s why and he said simply “because Sherman burned Atlanta.”

The impulse of the Democratic Party of the past to maintain its power is identical to that of the current Republican Party. However, the policy preferences of the current Republican Party are much further away from the policy preferences of the “state average” than were those of the Democratic Party in the 1970s because the current Republican Party has virtually no ideological diversity. This is partly due to the ideological sorting of the parties, especially since the 1994 Republican takeover of the U.S. House of Representatives (all the Blue Dog Dems down East became Republicans), and partly due to how much more precise gerrymandering has become due to data advances. Simply put, plenty of the Democrats in 1976 would be Republicans today, so any power grabs of old had less influence on policy than do those of today.

Second, there are inescapable racial dimensions to the voting legislation and litigation that have been a hallmark of the North Carolina political context since the Shelby County v Holder Supreme Court decision, and these disputes harken to a past South, that North Carolina has spent a good deal of effort to escape. That is an inescapable frame for the special session that makes it particularly ominous.

The rise in voter participation among African Americans–simply to roughly their proportion of eligible voters due to early voting and same day registration and voting–led to Barack Obama winning a razor thin victory in North Carolina in 2008. Republicans took both Chambers of the General Assembly in 2010 and the Governorship in 2012, and after the Shelby County Voters Rights Act decision in 2013, their response was to pass a voting law that was described in being struck down by the 4th Circuit Court of Appeals this past Summer thusly:

“The new provisions target African Americans with almost surgical precision” and “impose cures for problems that did not exist,” Judge Diana Gribbon Motz wrote for the panel. “Thus the asserted justifications cannot and do not conceal the State’s true motivation.”

These are devastating words that the writers of the North Carolina voter law do not recognize in themselves to be sure, but they should realize they provide the context for changes to the States voting procedures and processes that they rushed through this past week. Further, in November a separate Federal Court order required the General Assembly to redraw some State legislative districts by March, 15 and hold special elections in 2017 because

“While special elections have costs, those costs pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander,” the judges wrote Tuesday, adding that despite concerns about lower voter turnout, “a special election in the fall of 2017 is an appropriate remedy.”

Given these two court opinions, humility on the topic of elections might have been in order. Instead, they rushed election changes, that even though framed as bipartisan, may simply be designed to render executive branch oversight of elections toothless because the super-majorities required to act–to expand minimal early voting sites in any forthcoming law, for example– will never be obtainable. The rise in African American voter participation followed by a voter law that has been struck down on racial grounds and the fact that there are no Black Republicans in the General Assembly makes it feel as though North Carolina is going backwards on the issue of race, the issue that has most defined the South since the adoption of the Constitution.

The racial overtone of the politics of the past few years and the fact that the session addressed election rules, makes this power grab more ominous than those in 1976 and 1988.

*****

When I was a freshman at UNC Chapel Hill in 1986-87, I took an intro Poli Sci course and we had to interview someone about race and civil rights. I asked my granddaddy about his decision to hire a Black Deputy Sheriff in the early 1970s in Greene County. “Why did you decide to do that?” He answered practically and plainly as stoics do: he said that the hardest thing for a Sheriff was serving summons orders and warrants at people’s homes, and that since half the folks in Greene County were Black and half White, it made sense to have a Black Deputy.

He did not provide a stirring civil rights justification and I don’t know all that he might have thought or been motivated by because he was a man of few words. However, he was recounting one act that moved North Carolina ahead in a small way, and the story of the last half Century in North Carolina has been myriad subtle decisions, public and private that made our state “not Alabama” in so many ways. The ‘split the difference’ ‘win-win’, ‘get along-go along’ ethic that made North Carolina the great place that it is seems to be lacking in our current General Assembly, and this lack of subtlety is serving us all poorly.

Unfortunately, you can tear something down much faster than you can build it.