Posts Tagged With: Obama

Federal Appeals Courts Split on Health Care Subsidy

 

Good. This means that we are a nation of laws and the Rule of Law still applies. The Rule of the Political Party does not control; not yet, anyway. But wait, this is not over. The DOJ plans to appeal this decision to the full Washington DC Circuit Court. This was a 2-1 majority decision by 3 judges out of the full 11 on the DC Circuit. 4 of the 11were appointed by Obama and 7 of the 11 were appointed by Democrats. If the Rule of Law still governs in America, then an “en banc” decision by the full 11 judges will result in the same decision. But if political party trumps the Law then an appeal would result in the politically absurd ruling advanced by the Democrats who pushed thru the flawed and defective ObamaCare Law.

Two federal appeals court rulings put the issue of ObamaCare subsidies in limbo Tuesday, with one court invalidating some of them and the other upholding all of them.

The first decision came Tuesday morning from a three-judge panel of the U.S. Court of Appeals for the District of Columbia. The panel, in a major blow to the law, ruled 2-1 that the IRS went too far in extending subsidies to those who buy insurance through the federally run exchange, known as HealthCare.gov.

A separate federal appeals court in Virginia, next door to Washington, DC — the Fourth Circuit Court of Appeals — hours later issued its own ruling on a similar case that upheld the subsidies in their entirety.

The conflicting rulings would typically fast-track the matter to the Supreme Court. However, it is likely that the administration will ask the D.C. appeals court to first convene all 11 judges to re-hear that case.

White House Press Secretary Josh Earnest stressed Tuesday that different courts have reached different conclusions on the subsidy issue, and said the latest ruling against the subsidies “does not have any practical impact” at this point on the ability of people to get tax credits. The White House later said the D.C. decision was “undermined” by the Fourth Circuit decision.

 

Still, the D.C. court ruling nevertheless strikes at the foundation of the law by challenging subsidies that millions of people obtained through the federally run exchange known as HealthCare.gov.

The suit maintained that the language in ObamaCare actually restricts subsidies to state-run exchanges — of which there are only 14 — and does not authorize them to be given in the 36 states that use the federally run system.

The court agreed.

“We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions  of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly,” the ruling stated.

The case, Halbig v. Burwell, is one of the first major legal challenges that cuts to the heart of the Affordable Care Act by going after the legality of massive federal subsidies and those who benefit from them.

The decision said the law “unambiguously restricts” the subsidies to insurance bought on state-run exchanges.

The dissenting opinion, though, claimed political motivations were at play. “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’),” the dissent stated.

The ruling, though likely to be appealed, could threaten the entire foundation of the newly devised health care system. Nearly 90 percent of the federal exchange’s insurance enrollees were eligible for subsidies because of low or moderate incomes, and the outcome of the case could potentially leave millions without affordable health insurance.

“Today’s decision rightly holds the Obama administration accountable to the law,” Sen. Orrin Hatch, R-Utah, said in a written statement adding, “… As it has on so many occasions, the Obama administration simply ignored the law and implemented its own policy instead.”

The next step for the Obama administration would be that they request a so-called en banc ruling, which means there would be a vote taken by all of the judges on the court. An appeals court can only overrule a decision made by a panel if the court is sitting en banc.

Earnest said the Department of Justice will likely appeal to the full D.C. Circuit Court and defended the administration’s position that Congress intended “all eligible Americans” to have access to the subsidies regardless of which entity set up the exchange.

“We are confident in the legal position that we have,” Earnest said.

Ron Pollack, founding executive director of Families USA, said in a written statement that the ruling “represents the high-water mark for Affordable Care Act opponents, but the water will recede very quickly.”

He added, “It will inevitably be placed on hold pending further proceedings; will probably be reheard by all of the 11-member active D.C. Circuit Court of Appeals members, who predictably will reverse it; and runs contrary to” the ruling from the Fourth Circuit Court of Appeals.

The appeals process could eventually lead to the U.S. Supreme Court deciding on the legality of the subsidies, but Pollack, whose group supports the law, believes that won’t happen.

Of the 11 judges that could rehear the case, seven are Democrats and four are Republicans.

Halbig v. Burwell, which previously had been called Halbig v. Sebelius, is one of four federal lawsuits that have been filed aimed at targeting the idea of tax credits and other subsidies afforded under ObamaCare.

A total of $1 trillion in subsidies is projected to be doled out over the next decade.

A U.S. District Court previously sided with the Obama administration on Jan. 15.

Categories: Constitutional Law | Tags: , , , , , , , , | Leave a comment

ObamaCare Rollout A Disaster

Obamacare Rollout Is A Disaster  And An Embarrassment

American presidents are used to deference and barking orders — not wiping egg from their faces.

So it was unpalatable for President Barack Obama to go on television Monday and admit glaring failures in the rollout of the health care law that bears his name.

Website snafus that have slowed sign ups to Obamacare in the three weeks since its launch are embarrassing on multiple fronts for the White House and represent a ballooning political challenge.

The Obama machine has always prided itself on efficiency and a “no drama” approach, and made great play of the governing debacles — including Hurricane Katrina — of the George W. Bush administration.

The idea that government can work is also at the center of Obama’s political creed — and is a driving motivator of his ideological clash with Republicans. So any evidence to the contrary is inconvenient to say the least.

But the faulty debut of the Healthcare.gov website is spurring questions over Obama’s competence in implementing a law he wagered his presidency to pass three years ago, but which has yet to deliver a political payoff.

The Washington Post reported late Monday that in a test a few days days before the web site was to be launched, the system crashed in a simulation in which just a few hundred people tried to sign on simultaneously.

The web site went live October 1 anyway, and seized up shortly after midnight as about 2,000 users tried to complete the first step for buying health care insurance, the Post said. It quoted two people familiar with the project.

The embarrassment is even more acute since Obama built his career on exploiting the power of the Internet to build a political movement and woo Americans over the heads of the news media.

The Obamacare storm was building for days, but was obscured by the furor over a just avoided debt default and a government shutdown. The White House however sensed the row was about to break through, and over the weekend made clear Obama would address the website glitches head on.

“There’s no sugarcoating it,” the president said, bemoaning the website’s faults.

“I think it’s fair to say that nobody is more frustrated by that than I am.”

But his appearance on a crisp fall day in the White House Rose Garden was less a mea culpa than a sales job.

“The product is good,” Obama insisted, apparently worried that bad reviews of the website would sour Americans even further on Obamacare — which polls show has a poor image.

The botched rollout, which Obama described as being plagued by “kinks“, offered an opening to Republicans stung by coming off second best in the shutdown drama.

House Speaker John Boehner, who has long blasted Obamacare as a “train wreck” wove a wider parable of supposed failures encompassing the whole of Obamacare, which targets 40 million Americans without health insurance.

“What the president offered today was little more than self-congratulation,” Boehner said.

“Either the president doesn’t grasp the scale of the law’s failures or he doesn’t believe Americans deserve straight answers.”

Obama however argued the law is “more than a website” and noted popular provisions including the prohibition on insurance firms denying coverage to someone with a pre-existing health condition.

The Department of Health and Human Services has ordered a “surge” of technology experts to repair the website and says Americans can also register by phone.

But it still will not say how many people have secured insurance through the new law.

How badly Obama and his signature domestic achievement are damaged may depend on how quickly the fixes work.

If problems linger, Obama will face mounting calls to delay the mandate for all Americans to buy health insurance or pay a fine equivalent to one percent of their income. This is due to come into force next year.

There is also a growing drumbeat for the head of HHS Secretary Kathleen Sebelius — though White House aides privately say her job is safe, blaming contractors, not administration officials, for the problems.

Top aides to Obama have long believed that once more Americans see the results of Obamacare in action, the law would become more popular. But such hopes may not survive days of stories over its botched debut.

“Every day that there are problems with the Obamacare website is going to be a day where the Republicans say this is Obamacare writ large,” said Dante Scala, a political science professor at the University of New Hampshire.

“If it is something that lingers for months that is a big problem. It will feed into a public perception that it won’t work.”

To work, Obamacare must attract droves of healthy, young people — who typically are the most loath to buy health insurance — to sign up to subsidize the risk posed by older, sicker, consumers. So anything that deters them from taking the plunge could be disastrous for the law.

With that in mind, and given the centrality of Obamacare to the president’s political identity, many experts are baffled at the mess.

“That they didn’t seem to have this better prepared for the rollout on October 1 goes beyond me being surprised,” said Daniel Sledge, a professor and health care specialist at the University of Texas.

(Business Insider, Collinson, S., Oct. 22, 2013)

“A broken website imperils the largest expansion of the American safety net since the Great Society.

“More than two weeks into the disastrous rollout of HealthCare.gov, the website created by President Barack Obama’s health care reform law still isn’t working right….But the administration won’t disclose exactly what’s wrong with the health insurance exchange website, or when consumers can expect to see the promise of convenient, one-stop shopping for health benefits and financial assistance fulfilled.”

That’s not from some right-wing website. It’s the Huffington Post, whose home page is usually plastered with pro-administration headlines.

I think we have to stop using the word “glitches” to describe what’s going on. This is far more serious than too many people at the outset crashing the site.

This is a meltdown of the first order that really does threaten the president’s signature priority. If the problems are ironed out and millions sign up for the federal exchanges, this period will just be an unpleasant interlude. But at this point, administration officials don’t seem to have a handle on the magnitude of the debacle.

The president used the G-word, telling KCCI-TV in Des Moines that the rollout has had “way more glitches than I think are acceptable.” But it’s much deeper than that. As the Wall Street Journal reports:

“Insurers say the federal health-care marketplace is generating flawed data that is straining their ability to handle even the trickle of enrollees who have gotten through so far, in a sign that technological problems extend further than the website traffic and software issues already identified.

“Emerging errors include duplicate enrollments, spouses reported as children, missing data fields and suspect eligibility determinations, say executives at more than a dozen health plans. Blue Cross & Blue Shield of Nebraska said it had to hire temporary workers to contact new customers directly to resolve inaccuracies in submissions. Medical Mutual of Ohio said one customer had successfully signed up for three of its plans.”

Robert Gibbs nailed it when he said on MSNBC that this was a huge embarrassment and that some people should be fired. When Gibbs was hired as a network commentator, I wondered whether he would merely be a flack for his former boss.

So a tip of the hat to the former White House press secretary. Other liberals at MSNBC, such as the Washington Post’s Gene Robinson, are also saying the rollout is a mess.

Many conservatives are rooting for ObamaCare to fail. Some states with GOP governors are not cooperating with the program. But what has happened since the rollout falls squarely in the category of self-inflicted wound—and may be accomplishing what Ted Cruz could not.

Sebelius Siblings

When your job is secure, it seems to me, you don’t go trotting out your brother and sister to defend you.

In the wake of the disastrous ObamaCare rollout, I don’t know how the siblings of HHS Secretary Kathleen Sebelius came to be quoted by the New York Times.

But with the White House proclaiming “full confidence” in her, their response to calls for her to step down suggested she was taking no chances:

“In an interview, Ms. Sebelius’s older brother, Donald D. Gilligan, said, ‘I don’t think you resign in the middle of a fight…The fact that people are calling for her head does not surprise her or alarm her particularly.’…

“The secretary’s sister, Ellen M. Gilligan, said, ‘To my knowledge, she is not going to resign,’ despite the ‘wishful thinking’ of some Republicans.”

Well, the Sebelius family is certainly behind her.

Categories: American History | Tags: , , , , , , , | Leave a comment

Obama’s Comments On Military Sex Abuse Constitute “Undue Command Influence”

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court week of June 10.

Navy Judge CDR. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

“The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.

Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.

“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army’s JAG school.

 

President Barack Obama said that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.

The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.

“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

(…)

“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”

What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The operative question here is whether the comments by President Obama and others in the chain of command, which based on how they are set forth in the opinion seem to be little more than generalized statements about the need for increased vigilance against sexual assault in the military constitute an attempt to “coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  In his ruling, the presiding Judge found that there was sufficient reason to believe that the President’s insistence that members of the military who have engaged in sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged” constituted at least potential undue influence over the sentencing phase of the hearing in the case before him. Consequently, he ruled that if the Defendant is convicted, the military jury would not be able to impose a dishonorable discharge or similar punishing upon him. As noted above, this would potentially mean that the Defendant would remain fully eligible for all veterans benefits despite having been convicted of a crime while in the military.

I don’t have the expertise in military criminal law to comment on the Judge’s decision here, however the immediate consequences of his ruling. Defense attorneys representing members of the military facing similar charges will without a doubt file similar motions in the cases they are involved in, and we’re likely to get contradictory rulings on the matter from the presiding Judges in each of those cases. Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts. As for the President’s statement itself, I can’t help but think that the Judge got it wrong here. On it’s face, what the President said struck me as a general, benign, statement regarding future policy and the message that the Commander in Chief wishes the military to take the issue of sexual assault far more seriously than it has been. Is that “undue command influence?” As I said, I’m not an expert in this area so I’ll leave that to others, but it does feel to me like the Judge went a little over the top here. I suppose we can be grateful that he didn’t dismiss the cases completely.

On a general level, though, this case does point out the importance of the White House in general, and the President specifically, not getting involved in criminal investigations and prosecutions that occur under his watch, whether in the civilian or military spheres. Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific  case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.

 

Categories: Military Justice | Tags: , , , , , , , | 1 Comment

ObamaCare: A Deception

The Patient Protection and Affordable Care Act of 2010, commonly referred to as the ACA or Obamacare, will go into full effect in 2014. This decree mandates that all Americans must purchase and maintain government-approved health insurance or pay a penalty to the IRS. Touted as a plan to provide all Americans with access to medical care, in reality, this compulsory shakedown commands everyone to purchase insurance that for many will be too expensive, even with government subsidies – or unaffordable to use – or both.

The ACA was not selflessly designed with the intent of providing affordable and equitable medical services to those in need, but rather to acquire taxpayer money for the private insurance companies under the seemingly helpful guise of health care and the ideological excuse of personal responsibility. It takes money from ordinary people and gives it to a medical insurance industry that profits handsomely from this legally-enforced corporate welfare – all while keeping Americans locked in the same broken system that puts profit before patients. The law was essentially written by business executives from the industry so that special interests would not be upset and profits assured.

There’s a lot to digest about how the ACA works and much is buried in a complex, convoluted maze of regulations and procedures. A few websites contain explanations, but very important details have either been left out or glossed over. These details are well worth understanding so you will know what’s at stake for you and your family. This lesson is not meant to convey a political opinion. This is how the ACA works and under this law, there are no sacred cows.

Read more at www.judgelondonsteverson.com

(Introduction by Paul Craig Roberts)
The article below is the most comprehensive analysis available of “Obamacare” – the Patient Protection and Affordable Care Act. The author, a knowledgeable person who wishes to remain anonymous, explains how Obamacare works for the insurance companies but not for you.
Obamacare was formulated on the concept of health care as a commercial commodity and was cloaked in ideological slogans such as “shared responsibility,” “no free riders” and “ownership society.” These slogans dress the insurance industry’s raid on public resources in the cloak of a “free market” health care system.
You will learn how to purchase a subsidized plan at the Exchange, what will happen when income and family circumstances change during the year or from one year to the next, and other perils brought to you by Obamacare. It is one of the most important articles that will be posted on my website this year. Americans will be shocked to learn the extent to which they have been deceived. The legislation neither protects the patient nor are the plans affordable.
The author shows that for those Americans whose income places them between 138% and 400% of the Federal Poverty Level, the out-of-pocket cost for one of the least expensive (lower coverage) subsidized policies ranges from 2% to 9.5% of Modified Adjusted Gross Income (MAGI), a tax base larger than the adjusted Gross Income used for calculating federal income tax.
What this means is that those Americans with the least or no disposable income are faced in effect with a substantial pay cut. The author provides an example of a 35 year-old with a MAGI of $27,925. The out-of- pocket cost to this person of a Silver level plan (second least expensive) is $187.33 per month. This cost is based on pre-tax income, that is, before income is reduced by payroll and income taxes. There goes the car payment or utility bill. The lives of millions of Americans will change drastically as they struggle with a new, large expense – particularly in an era of no jobs, low-paying jobs and rising cost of living.
The author also points out that the cost of using the mandated policies will be prohibitive because of the large deductibles and co-pays. Many Americans will find themselves not only with a policy they can’t afford, but also with one they cannot afford to use. Those who cannot afford the insurance, even with a subsidy, will be faced with a costly penalty, and in many cases, this, too, will be difficult, if not impossible, to pay. As each year’s subsidy is based on last year’s income, there will be a substantial year-end tax liability for those who must repay the subsidy in whole or part because their income increased during the year. The stress alone from such a regressive scheme is, without a doubt, not conducive to good health and well-being.
Diets will worsen for millions of Americans as they struggle with a new large expense. Thus, the effect of Obamacare will be to worsen the health of millions. Indeed, a “glitch” in the legislation allows millions to be priced out of coverage. http://www.huffingtonpost.com/2013/01/30/obamacare-glitch-priced-out-of-health-care_n_2585695.html?view=print&comm_ref=false

Alternatively, Americans might be able to acquire health insurance coverage but have no doctors willing to treat them. http://www.californiahealthline.org/road-to-reform/2013/access-denied-implications-of-medi-cal-pay-cut.aspx#
The demand that Obamacare places on household budgets in which there is no slack makes me wonder where the president’s economists were while the insurance lobby crafted the product that serves the profits of insurance companies. Two well-known economic facts are that real family income has been stagnant or declining for a number of years and Americans are over their heads in debt.
How does Obama preside over a recovery when consumer purchasing power is redirected to insurance company profits?
Obamacare not only rations health care by what a person or family can afford, but also has implications for Medicare patients. Hundreds of billions of dollars are siphoned from Medicare to help pay the cost of Obamacare. The health care provided to Medicare patients will decline with the reduced payments to care providers. Health care seems destined to be rationed according to the age and illnesses of Medicare patients. Those judged too old and too ill could be denied expensive treatments or procedures that would prolong their lives.
Obama will rue the day that his name was put on this special interest legislation, and most Americans, once they realize what has been done to them, will be angry that special interests again prevailed over the health of the nation.

OBAMACARE: DEVILS IN THE DETAILS
The Patient Protection and Affordable Care Act of 2010, commonly referred to as the ACA or Obamacare, will go into full effect in 2014. This decree mandates that all Americans must purchase and maintain government-approved health insurance or pay a penalty to the IRS. Touted as a plan to provide all Americans with access to medical care, in reality, this compulsory shakedown commands everyone to purchase insurance that for many will be too expensive, even with government subsidies – or unaffordable to use – or both.
The ACA was not selflessly designed with the intent of providing affordable and equitable medical services to those in need, but rather to acquire taxpayer money for the private insurance companies under the seemingly helpful guise of health care and the ideological excuse of personal responsibility. It takes money from ordinary people and gives it to a medical insurance industry that profits handsomely from this legally-enforced corporate welfare – all while keeping Americans locked in the same broken system that puts profit before patients. The law was essentially written by business executives from the industry so that special interests would not be upset and profits assured.
There’s a lot to digest about how the ACA works and much is buried in a complex, convoluted maze of regulations and procedures. A few websites contain explanations, but very important details have either been left out or glossed over. These details are well worth understanding so you will know what’s at stake for you and your family. This lesson is not meant to convey a political opinion. This is how the ACA works and under this law, there are no sacred cows.
In today’s lesson, you will learn why 2013 is an important year for many of you with regard to your income and the ACA. We will discuss 1) use of Modified Adjusted Gross Income, 2) tax credits (help paying for insurance), 3) your share of the premium, 4) paying back the tax credits to the IRS, 5) expansion of Medicaid and estate recovery which could affect you if you are put into that plan, 6) inadequate coverage in most subsidized plans, 7) penalties, 8) exemptions and 9) a few tidbits. We’ll also take a look at the agenda of Enroll America and the Health Insurance Exchanges, and what you can expect to hear in the very near future.
Here we go. Fasten your seat belts.
1. HEALTH INSURANCE EXCHANGE BASICS
In 2014, each state will have an Affordable Insurance Exchange where qualified individuals and families with incomes between 138 and 400 percent of the Federal Poverty Level (FPL) can shop for commercial insurance policies. Most individuals and families with incomes at or below 138 percent FPL will be put into Medicaid. You may be eligible for help paying for your insurance in the form of a tax credit. In most states, the Children’s Health Insurance Program (CHIP) will continue to cover children in families with incomes up to at least 200 percent FPL. Some states may offer a Basic Health Plan for those who earn up to 200 percent FPL and are not eligible for Medicaid. Under limited circumstances, you may also be eligible for a cost-sharing credit.
Eligibility to receive a tax credit, the amount of your tax credit and your out-of-pocket share for the insurance will be determined by your income and where you fall in the Federal Poverty Level Guidelines (FPL). This is easy to understand.
Your annual gross income determines which FPL you’re in. For example, based on 2012 FPL Guidelines, an individual with an annual income of $33,510 is at 300 percent FPL; a family of 4 with an annual income of $69,150 is at 300 percent FPL. To see where you’re at, try the handy calculator at this link. FPL Guidelines are revised every January, so the 2013 edition should be up soon. http://www.safetyweb.org/fpl.php
The ACA requires use of MODIFIED ADJUSTED GROSS INCOME (MAGI) instead of Adjusted Gross Income for all determinations made by an Exchange including eligibility for Medicaid except in certain cases. So, in this lesson, we’ll refer to annual income as MAGI.
Modified Adjusted Gross Income (MAGI) is defined as Adjusted Gross Income PLUS
a) all tax exempt interest accrued or received in the taxable year;
b) the non-taxable portion of Social Security benefits provided under Title II of the Social Security Act which includes old-age benefits, disability benefits, spousal benefits, child benefits, survivor benefits and parental benefits;
c) tier 1 Railroad Retirement benefits that are not includible in gross income; and
d) the exclusion from gross income for citizens or residents living abroad.
The adoption of MAGI, created by the ACA, is defined in a new section of the IRS code.
2. DETERMINING ELIGIBILITY FOR A TAX CREDIT
The tax credit is to help you pay for insurance. The ACA says it must be based on annual income for the tax year it’s received, but since you will need help paying for your plan during that year, the ACA allows for advance payment of the tax credit.
Here’s an example of what that means: Let’s say you apply for insurance at an Exchange in 2014. Therefore, 2014 is the tax year you will receive your tax credit, and per the ACA, the amount you receive must be based on that year’s MAGI. But, that year’s MAGI won’t be available until 2015 when you file your 2014 tax return and you need help paying for your insurance plan when you buy it in 2014. So, the amount of your tax credit has to be determined on information that is available such as your prior-year (2013) tax return. Thus, the tax credit morphs into an ‘advance payment of the tax credit’ (also referred to as an advance premium assistance credit). Now you see why 2013 is an important year for many of you.
The ACA allows for limited disclosure of tax return info in order for an Exchange employee to verify your citizenship status and MAGI, and, not only to let you know how much your advance tax credit will be, but also to see if you are eligible to receive this in the first place. An Exchange can also consider using your real-time income by looking at your state’s most current quarterly wage database, or it may agree to accept paper verification (pay stubs, etc.) as a last resort or an attestation of your income with no verification. Creation of a federal ‘data services hub’ is in the works so your income information will be more readily accessible. But, no matter how this plays out, you’ll still receive an advance payment of the tax credit because your actual MAGI for 2014 will not be known by you nor can it be verified by an Exchange until you file your 2014 tax return in 2015.
Ultimately, no matter which method is used – prior year or partial current year – this advance payment of the tax credit carries with it some heavy-duty consequences which are discussed in topic 4 of this lesson.
3. TAX CREDITS AND YOUR SHARE OF THE PREMIUM
The amount of your tax credit will be based on the second lowest-cost Silver plan in the area where you live and your MAGI. Here’s how this works – it’s quite simple:
a) First, the amount you will pay out of your pocket for that Silver plan – copays and deductibles not included – will be a specific percentage of your MAGI, and you will pay this to the insurer on a monthly basis. The way this percentage will be calculated is described a few lines down.
b) Next, your share will be deducted from the cost of that Silver plan and the difference will be your tax credit which the government will pay directly to the insurer on a monthly basis when you purchase a plan.
The specific percentage you will have to pay for the second lowest-cost Silver plan will be based on your FPL using a well-greased sliding scale. As your FPL increases little by little, the percentage you will pay increases. The same percentage applies to an individual or a family. Here’s how much of your MAGI you will pay for that Silver plan:
— up to 138 % FPL: 2% for people legally present less than 5 full years and residents of states that do not expand Medicaid
— 138-150% FPL: 3 to 4%
— 150-200% FPL: 4 to 6.3%
— 200-250% FPL: 6.3 to 8.05%
— 250-300% FPL: 8.05 to 9.5%
— 300-400% FPL: 9.5% – there’s no range, but the dollar amount of your share will change because 9.5% of a lower MAGI is less than 9.5% of a higher MAGI.
Here are two examples in dollars using 2012 FPL Guidelines and an estimate for a second lowest-cost Silver plan which will vary depending where you live – actual costs are not yet available:
a) You are 35 years old and the price of the second lowest-cost Silver plan for an individual in the area where you live is $4,750 with no tax credit. If your MAGI is $33,510 ($2,792.50 per month) putting you at 300 percent FPL, your share for that Silver plan, per the chart above, would be 9.5 percent of your MAGI which comes to $3,183 ($265.25 per month). Your tax credit would be $1,567 which is the difference between the unsubsidized cost of that Silver plan and your share.
b) You are 35 years old and your MAGI is $27,925 ($2,327 per month) putting you at 250 percent FPL, so, your share of that Silver plan would be 8.05 percent of your MAGI which comes to $2,247.96 ($187.33 per month) and your tax credit would be $2,502.
If the second lowest-cost Silver plan is too expensive, you can apply your tax credit to a Bronze plan which will be cheaper but less comprehensive. If you want a better plan than the Silver, you will have to pay the full difference in the premium.
Don’t forget that your share of the monthly premium will be figured on your MAGI which is pre-tax income. So, after you deduct your income taxes and your share of an insurance plan, will you be able to cover your monthly basic living costs including paying off debt you may owe and still have some cash left to pay for medical care if you have to use your insurance? Check out topic 6 in this lesson for a rundown of plans and coverage you can expect to find at an Exchange. Hope you don’t faint.
Once you purchase a plan, your share and your tax credit won’t change until the next enrollment period unless, before that time, your income goes up or down enough to bump you into a different FPL or you get a job with insurance. You can let your Exchange know by phone or via your online account, or, your Exchange might notice while cruising the data services hub you learned about in topic 2 and notify you that you must ‘up’ your coverage or that you’ve been tossed into Medicaid if your MAGI has decreased enough to make you eligible for that plan. Exchanges will be encouraged to use as many different avenues as possible including private databases to keep tabs on your income.
Thus, you could end up bouncing from Medicaid to a subsidized plan or vice versa. By the same token, you could take some extra work to help pay the bills or to save for a vacation, and, oops, you went over 400 percent FPL and are no longer eligible for a tax credit. The Exchange may not find out about this unless you spill the beans, but, no matter how it all plays out, income changes will catch up with you when you file your tax return.
To be eligible for a tax credit you must file your tax return no later than April 15. Married taxpayers must file a joint return. Individuals who are listed as dependents on a return are ineligible for a tax credit.
If you are eligible for Medicaid, you will not be allowed to receive a tax credit or a cost-sharing credit although some states impose premium and cost-sharing charges on certain Medicaid enrollees per the Deficit Reduction Act of 2005 (DRA) and clarified in the Tax Relief and Health Care Act of 2006.

On January 22, 2013, the Centers for Medicare & Medicaid Services (CMS) proposed allowing states to further increase Medicaid premiums and out-of-pocket costs by 5 percent. The most egregious part of this proposed rule says that states may allow providers to deny services for failure to pay the required cost-sharing in certain circumstances. The Obama administration is behind this proposed rule hoping to persuade states to expand Medicaid since many have refused and others are still undecided – the expansion of Medicaid is an integral part of the ACA. Allowing states to further increase premiums and cost-sharing for the poorest segment of the population under- scores the existing political bias toward low-income Americans despite rhetoric which claims otherwise. https://www.federalregister.gov/articles/2013/01/22/2013-00659/medicaid-childrens-health-insurance-programs-and-exchanges-essen- tial-health-benefits-in-alternative#h-186
http://www.nytimes.com/2013/01/23/health/medicaid-patients-could-face-higher-fees-under-a-proposed-federal-policy.html

Affordability rates (the percentage of your MAGI the government has decided you can afford to pay for insurance) are based on boardroom formulas which don’t take particular individual needs into account such as housing costs, property taxes, debt, education, transportation, retirement savings, etc. Also, FPL Guidelines are standard across the country and do not take into consideration those who reside in a more expensive region or vice versa. They are one-size-fits-all with the exception of Alaska and Hawaii. See topic 8 in this lesson to learn about exemptions.

Check out what self-proclaimed health care expert Jonathan Gruber says about affordability and get a load of all the “formulas.” According to Mr. Gruber, you may be having too much fun in life and need to get serious, buy health insurance and live under a rock in order to pay for it. He was involved with Romneycare in Massachusetts and was also Mr. Obama’s go to man under a no-bid contract. Per a bar graph on page 6 of a report prepared by Stan Dom for the Urban Institute, subsidized plans under the ACA are estimated to cost 2 to 3 times more (give or take) than the subsidized plans under Romneycare. Per several surveys during the years that Romneycare has been in effect, many low and modest income MA residents have had difficulty paying for those plans and the out-of-pocket costs to use the insurance, particularly chronically-ill residents.
http://ebookbrowse.com/1493-gruber-will-affordable-care-act-make-hlt-ins-affordable-reform-brief-v2-pdf-d124754327
http://www.statecoverage.org/files/TheBasicHealthProgramOptionUnderHealthReform.pdf
4. PAYBACK OF TAX CREDITS TO THE IRS
Perhaps you recall hearing politicians including Mr. Obama say if you can’t afford to pay for health insurance, the government will help you. That was one of the key talking points repeated non stop. We just went over the help part – the tax credits. Now we’ll look at what Mr. Obama et al didn’t tell you which is important to understand because it could cause you some serious financial distress.
Remember the “advance payment of the tax credit” in topic 2 of this lesson? Well, essentially, that was a loan from the government which was paid in advance to the insurer on your behalf when you purchased your plan, and, as you know, loans have to be paid back. So, when you file your tax return for the year you received your “advance tax credit” (your loan), if your income has changed, you have to settle this with the IRS. Here’s the deal:
a) If your MAGI is higher and the increase puts you into a higher FPL, you may have to pay back a portion or all of the tax credit because it was based on a lower MAGI. In other words, you could have an additional tax liability on top of the income taxes you already paid (or still owe) because you received a higher tax credit than you were entitled to.
b) If your MAGI is lower and the decrease puts you into a lower FPL, a refund could be coming to you because you were eligible for a larger tax credit than the government paid to the insurer. In other words, you overpaid for your portion of the insurance premium.
c) If you earned a bit more or less, but your extra earnings or loss didn’t bump you into another FPL, you’re home free.
To figure out your payback, you will have to enter the relevant figures on the reconciliation page of the tax return. Changes in filing status such as the number of people in your household will also have an impact. For those of you who marry or divorce, the rules for the payback amount as well as the amount of the tax credit you are eligible to receive will make your head spin – the computation includes pre- and post-marriage FPL and uses the highest FPL of the two people involved. Ditto for divorce.
Here is one of the reconciliation explanations in IRS-speak: Your liability for an excess tax credit you received must be reflected on your current year income tax return subject to a limitation on the amount of such liability.
Oh! Limitation on the amount of such liability. That sounds good.
Let’s take a peek at the payback limitations on record at the time of this writing. “At the time of this writing” are the operative words because the cap has been increased twice since the ACA was signed into law. The original payback was capped at $400 for families under 400 percent FPL and $200 for individuals. We’ll skip over the first increase. The story behind the second one is that a particular revenue stream was removed from the original law, so something had to be done to compensate for this lost money. Thus, an amendment was passed that increased the cap using a sliding scale, thereby putting a huge financial burden on the backs of the very people the ACA claims to help. In other words, tag, you’re it. You are the cash cow.
Here are the current sliding-scale caps:
If the household income (expressed as a percent of poverty line) is:
less than 200 percent, the applicable dollar amount is $600
at least 200 percent but less than 300 percent, the applicable dollar amount is $1,500
at least 300 percent but less than 400 percent, the applicable dollar amount is $2,500
Effective date: the amendment made by this topic shall apply to taxable years ending after December 31, 2013. Very truly yours, House Ways and Means Committee

The name of this bloodsucker is The Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011.

http://www.gpo.gov/fdsys/pkg/PLAW-112publ9/html/PLAW-112publ9.htm

But wait, there’s more!
a) Update: Today (Feb. 17) (2011) the House Ways and Means Committee approved the 1099 repeal bill which requires consumers earning more than 400 percent of the poverty line to pay back the [entire] subsidy. http://thehill.com/blogs/healthwatch/health-reform-implementation/144847-1099-repeal-gets-trickier-with-house-bill

b) Also, per IRS final regulations: for taxable years beginning after December 31, 2014, the payback caps may be adjusted to reflect changes in the consumer price index.
Payback amounts are reduced to one-half for unmarried individuals who are not surviving spouses or filing as heads of households. There is no help if you get hit with a payback and many of you will have difficulty paying this liability.
Chances that you may have received an incorrect tax credit are not exactly slim because this poorly thought-out scheme does not take into account the unpredictable and complex financial situations that confront the low and modest income population.
Keep in mind that by ending up in a higher FPL, you may also have to pay more out of your pocket for an insurance premium. You learned how that works in topic 3. If you can’t afford a higher premium and drop your insurance, you may still owe a payback plus a penalty for being uninsured which is also MAGI-based. Penalties are discussed in topic 7. If your MAGI puts you over 400 percent FPL, you just knocked yourself into left field and are on your own paying for an insurance plan on the open market. And, you may also be required to payback the entire tax credit.
If you get a job during the current year that offers health insurance which is not more than 9.5 percent of your total salary and the coverage is not less than 60 percent, you must take that insurance or pay a penalty for being uninsured. But, you may owe a payback for the months you received a tax credit before you landed the job. How large that payback is will depend on your MAGI for the entire tax year, not just on your income during the months you received the tax credit. Or, you may lose a job during the year and have a significantly reduced income even though the amount reported on your tax return is high because you had a job for part of the year. In this case as well, your payback will be based on your MAGI for the entire tax year.
More interest income from taxable and tax-exempt savings or a year-end bonus could also contribute to an increased MAGI and the possibility of a payback as well as taking extra work to help pay the monthly bills, house and car repairs, educational aspirations or a vacation. So, whether or not you end up in payback land will depend on how close you are teetering on the edge of an FPL. Ditto for your share of the premium and the amount of your tax credit.
The payback may stop many of you from purchasing insurance at the Exchange because you know in advance you will not have the money to pay it. If this is the case, you may be allowed to negotiate a lesser tax credit by paying more out of your pocket for your monthly insurance premium in order to avoid or decrease the payback. It’s a crap shoot. Considering what you’ve learned so far in today’s lesson, many of you will find yourselves between a rock and a hard place under the ACA, and you will be forced to make unten- able choices. Given the skyrocketing costs of food, heat and other basics, how will you even tread water under this set-up, nevermind get ahead?
Being told you will receive help from the government if you can’t afford to purchase insurance and finding out at tax time this was really a loan and you owe the IRS a substantial debt on top of your income taxes is outright shameful. But most politicians have no shame – which brings us to the next topic.
5. MEDICAID EXPANSION AND ESTATE RECOVERY
In order to expand Medicaid, several Medicaid regulations were changed:
a) the income limit for eligibility was increased to 133 percent FPL, but since states must apply a 5 percent disregard, this effectively raises the eligibility to 138 percent FPL
b) Modified Adjusted Gross Income will be used in most cases to determine eligibility (also applies to certain CHIP applicants)
c) the age limit was increased to 64, childless adults will be eligible; and
d) the asset test was dropped except for certain groups such as the elderly and people on Social Security Disability – BINGO!
The fact that the asset test was dropped is very important, but before we look at why, you must first understand that if an Exchange determines you are eligible for Medicaid, you have no other choice. Code for Exchanges specifies, “an applicant is not eligible for advance payment of the premium tax credit (a subsidized plan) or cost-sharing reductions to the extent that he or she is eligible for other minimum essential coverage, including coverage under Medicaid and CHIP.” Therefore, you will be tossed into Medicaid unless there are specific rules as to why you would not be eligible. If you are enrolled in a private plan through an Exchange and have been receiving a tax credit, and your income decreases making you eligible for Medicaid, in you go. If you are allowed to opt out because you don’t want Medicaid, you will have to pay a penalty for being uninsured unless you can afford to purchase insurance in the open market.
Just so you’re clear on this: the ACA stipulates that the system will ensure that if any individual applying to an Exchange is found to be eligible for Medicaid or a state children’s health insurance program (CHIP), the individual will be enrolled in such a plan.
Furthermore, to increase enrollment in health coverage without requiring people to complete an application on their own, states are advised to automate enrollment whenever possible by using existing databases for social services programs such as SNAP (food stamps) to enroll people who appear eligible for Medicaid but are not currently enrolled. Therefore, you could find yourself auto-enrolled in Medicaid against your will if your state acts on this advice.
Many times over Mr. Obama et al told you that all Americans would have choice. Choice was another big talking point. Are poor and low-income Americans undeserving of choice? Is the ACA a class-based system? Maybe they meant that for this segment of the population, the choice would be between Medicaid or a penalty for remaining uninsured. This is blatant discrimination.
Here’s why dropping the asset test got the BINGO – Estate Recovery! You won’t find the following info in the ACA. It’s in the Omnibus Reconciliation Act of 1993 (OBRA 1993) – a federal statute which applies to Medicaid, and, if you are enrolled in Medicaid, it will apply to you depending on your age.
a) OBRA 1993 requires all states that receive Medicaid funding to seek recovery from the estates of deceased individuals who used Medicaid benefits at age 55 or older. It allows recovery for any items or services under the state Medicaid plan going beyond nursing homes and other long-term care institutions. In fact, The Centers for Medicare & Medicaid Services (CMS) site says that states have the option of recovering payments for all Medicaid services provided. The Department of Health and Human Services (HHS) site says at state option, recovery can be pursued for any items covered by the Medicaid state plan.
b) The HHS site has an overview of the Medicaid estate recovery mandate which also says that at a minimum, states must pursue recoveries from the “probate estate,” which includes property that passes to the heirs under state probate law, but states can expand the definition of estate to allow recovery from property that bypasses probate. This means states can use procedures for direct recovery from bank accounts and other funds.
c) Some states use recovery for RX and hospital only as required by OBRA 1993; some recover for a few additional benefits and some recover for all benefits under the state plan. Recovery provides revenue for cash-strapped states and it’s a big business.
Your estate is what you own when you die – your home and what’s in it, other real estate you may own, your bank account, annuities and so on. And even if you have a will, your heirs are chopped liver. Low-income people often have only one major asset – the home in which they live and, in some cases, this has been the family home through several generations.
So what this boils down to is: if you are put into Medicaid – congratulations – you just got a collateral loan if you use Medicaid benefits at age 55 or older! States keep a running tally.
Estate recovery can be exempted or deferred in certain situations after your death, but the regulations for this are limited and complicated with multitudes of conditions. You may not have an attorney on speed dial, but with regard to this hundred pound gorilla, it sure would be handy.
Should you decide to ask your congresscritter about estate recovery, be prepared for responses such as:
— “Estate recovery doesn’t apply to you.” (Great news. Please overnight a copy of the amendment to OBRA 1993 that stipulates estate recovery is no longer required and no longer allowed. Here’s my address.)
— “Oh, estate recovery is state, I’m federal.” (Wrong – estate recovery is federally mandated although the estate recovery program itself is administered by each state.)
— “I don’t know anything about this.” (Highly unlikely because the expansion of Medicaid is an integral part of the ACA and estate recovery is not a secret.)
— “The ACA wasn’t about revamping Medicaid.” (As explained above, Medicaid regs were revised in order to expand Medicaid.)
— “I’ll look into that and get back to you.” (Don’t hold your breath – they don’t want to go there.)
If you ask about estate recovery when you contact an Exchange or speak with an outreach agency, you’ll probably run into a brick wall or be told it doesn’t apply to you – whatever. But, it doesn’t matter because what you are told is not legally binding. What is legally binding is your signature on the Medicaid application which indicates that you agree to the terms of the contract – which brings us to another item in OBRA 1993. Read on.
OBRA 1993 also contains procedural rules intended to ensure that individuals are informed about Medicaid program requirements including disclosure of estate recovery before they complete the application process and also during the annual re-determination process. Notification of estate recovery should be on the signature page of your state’s Medicaid application and is usually a one-liner: I understand that if I am aged 55 or older, (name of your state’s Medicaid plan) may be able to get back money from my estate after I die. (Use of the word ‘may’ doesn’t mean if the state feels like it – it means recovery will take place unless there are specific circumstances for exemption or deferment as mentioned above.) There are also strict recovery/repayment clauses for injury-related settlements disclosed on the signature page and a few other ditties that apply to you or a family member who is enrolled in Medicaid. All of these items must also be disclosed in your state’s Medicaid handbook.
Under the ACA and proposed federal rules for implementation, states will be required to provide a single, simple application to apply for and enroll in Exchange plans, Medicaid and CHIP, and consumers must be able to apply by phone, in person or online. The Secretary (HHS) is charged with this task and it’s in the works. This begs an answer to the following questions:
— Will Medicaid applicants be diligently informed about estate recovery and other rules that apply to Medicaid enrollees on this single application? Failure to do so would be in non compliance with OBRA 1993 and would also be deceptive.
— Will applicants be provided with a signature page that contains appropriate disclosure of these rules so they can be reviewed before signing on the dotted line?
— How will appropriate disclosure and obtaining a signature work for those who are bumped into Medicaid due to a decrease in income or who might be auto-enrolled because they were presumed eligible through a database.
If an applicant or someone who has been bumped or auto-enrolled in Medicaid is not satisfied with the terms of the Medicaid contract, lack of another health insurance option that is in the best interest of low-income earners represents undue and unconscionable advantage being taken of this segment of the population under a law that mandates health insurance or a penalty.
Do the health insurance policies enjoyed by lawmakers on Capitol Hill and paid for by taxpayers include an estate recovery program?
Medicaid is poor, underfunded, overstretched and constantly bombarded by state budget cuts – even before an ACA expansion. It offers a low quality of care in many states, and, in general, represents inequities in care. Office-based doctors typically refuse to accept Medicaid patients, thus, millions thrust into this plan will have difficulty finding a primary-care doctor or a specialist.
A perfect example is the December 2012 federal appeals court decision that allowed California to cut reimbursements by 10 percent to doctors, pharmacies and others who serve low-income residents under the state’s Medi-Cal plan (a version of Medicaid) due to state budget issues. California was already at the bottom of the rate-reimbursement heap which made finding doctors difficult for residents in Medi-Cal. This decision will further reduce the number of health care providers willing to take new Medi-Cal patients, thus jeopardizing their access to primary and specialized care. Under the ACA’s expansion of Medicaid, state budget crises across the nation will exacerbate the ongoing problems regarding access to care for Medicaid patients, particularly in states that have a high low-income population. http://www.sfgate.com/health/article/Medi-Cal-cuts-upheld-by-appellate-court-4116971.php
6. INSURANCE PLANS AT THE EXCHANGES
Below are the 4 plan levels that will be offered at Exchanges for people between 138 and 400 percent FPL. Each one has government- approved benefits including prescription coverage. You will be entitled to one free preventive visit each year. Per the most recent study commissioned by the Kaiser Family Foundation, several cost-sharing options were estimated for non-group (individual and family) Bronze and Silver plans. Cost-sharing is the amount you must pay to use your insurance. Your share of the premium is not part of cost-sharing. http://www.kff.org/healthreform/upload/8303.pdf
The way this works is you will pay for all your medical care until you reach the annual deductible. Then you’ll pay the applicable percent- age of coinsurance until you reach the annual out-of-pocket spending cap which will be set on a sliding scale. Annual means these amounts start again the following year, and if they change, you will find out when you re-apply for insurance. There will also be copays – an amount you will pay to the doctor for an office visit.
Here are the current estimates:
Bronze: cheapest and dry as dust with 60/40 coverage – a win-win for insurers
a) annual deductible of $4,375 for an individual (double for a family) with 20 percent coinsurance, b) annual deductible of $3.475 for an individual (double for a family) with 40 percent coinsurance
Silver: next cheapest – offers an illusion of coverage at 70/30
a) annual deductible of $2,050 for an individual (double for a family) with 20 percent coinsurance, b) annual deductible of $650 for an individual (double for a family) with 40 percent coinsurance
Gold: expensive – 80/20 – better coverage
Platinum: most expensive – 90/10 – most comprehensive coverage

A fifth plan will be available for the under-30 crowd and people who have been granted a hardship exemption. See topic 8 in this lesson. Coverage in this plan will be less comprehensive than the Bronze – it is primarily for major-medical expenses except that it has a free preventive visit. Cost-sharing for people at 138 to 200 percent FPL is estimated to be a bit less than the Bronze and Silver estimates mentioned above.

The high deductibles in all but the two most expensive plans could saddle you with mounting bills for routine care and may stop you from seeking necessary treatment for illness or injuries. Many of you will find that the promise of access to affordable health care really means access to inadequate coverage at a price the government has decided you can afford to pay.

The number of drugs in each plan at an Exchange will vary from state to state. In some states, plans will offer up to 99 percent of available drugs and others only 45 percent which means you may not have access to the specific drugs you need. Perhaps Big Pharma will change its stance on this before 2014.
The cost of plans at an Exchange will vary from state to state based on where you live and your age. The ACA allows insurers to charge older customers up to three times more for a plan, even if they are in good health, as long as the state in which an Exchange is located doesn’t have a law that caps age-rating. Some Exchanges will tuck an administrative fee of 2 to 4 percent into premiums to help cover operating expenses.
Cost-sharing tax credits will be available if you are below 250 percent FPL to protect you from high deductibles and copays – but only if you purchase a Silver plan. If you buy the cheaper Bronze plan, you won’t be eligible for these credits, which are, by the way, direct federal payouts to private health insurance companies.
Obamacare has no cost controls. There is nothing stopping the insurance companies from increasing their rates, and Washington has already estimated higher premium costs at the Exchange for 2016 which doesn’t mean that 2015 won’t have an increase. Sounds like 2014 prices will be an Introductory Offer. Get ‘em while their hot!
7. PENALTY FOR BEING UNINSURED
The ACA requires that people who have been deemed able to purchase health insurance but decide not to buy it starting in 2014 will owe a penalty (a tax) to the IRS. Here’s what this looks like:
a) In 2014, the annual penalty will be $95 per adult and $47.50 per child, up to a family maximum of $285 or 1 percent of family income, whichever is greater.
b) In 2015, the penalty will be $325 per adult and $162.50 per child, up to a family maximum of $975 or 2 percent of family income, whichever is greater.
c) In 2016, the penalty will be $695 per adult and $347.50 per child, up to a family maximum of $2,085 or 2.5 percent of family income, whichever is greater.
The IRS collects the penalty, but the ACA stipulates that taxpayers shall not be subject to any criminal prosecution or penalty, tax liens, seizure of bank accounts or garnishment of wages for failure to pay it and no accumulation of interest on the unpaid balance. So, it appears that all the IRS can do is deduct the penalty from a refund it owes you, and if you’re not due a refund, then you’ll have an out- standing tax obligation.
Keep in mind that the penalty is described in annual amounts but is really monthly. So, if you are uninsured for only part of the year, you will accrue only 1/12 of the total for each month you are uninsured unless you qualify for an exemption.
8. EXEMPTIONS FROM THE PENALTY
You may be eligible for official permission that excuses you from having to pay the penalty for being uninsured. The requirements are:
a) If the cheapest health care plan available costs more than 8 percent of your MAGI after subtracting the tax credit or employer contribution, whichever is applicable.
b) Your income is so low that you aren’t required to file federal income taxes.
c) You are between jobs and without insurance for up to three months.
d) You have a sincerely-held religious belief that prevents you from seeking and obtaining medical care.
e) You are in jail.
f) You are an undocumented immigrant.
g) You are a member of an Indian tribe or a religious group currently exempt from paying Social Security tax.
If item d) is the case, you must file a sworn statement as part of your tax return, and should you obtain care during the tax year, the exemption will no longer apply and you will have to pay a penalty for being uninsured. Per H.R. 6597, medical care is defined as acute care at a hospital emergency room, walk-in clinic or similar facilities. Medical care excludes treatment not administered or supervised by a medical doctor such as chiropractic, dental, midwifery, personal care assistance, optometry, physical exams or treatment where required by law or third parties such as an employer, and vaccinations.

If you think you can’t afford the amount the government has decided you can afford to pay for your insurance plan, and you don’t fit into any of the categories described above, you can apply for a Hardship Waiver. Details have not yet been provided regarding hardship eligibility requirements under the ACA, but, for an idea of what they might look like, let’s check out what the deal is in Massachusetts which already has a mandated health insurance law – Romneycare! In fact, Romneycare was the model for Obamacare. That’s why some people call Obamacare, Obamneycare.
To qualify for a Certificate of Exemption under Romneycare, a Massachusetts resident must demonstrate that health insurance is not affordable due to one of the following: 1) homelessness; 2) eviction or foreclosure notice; 3) domestic violence-related medical trauma; 4) major long-term illness of a child; 5) death of your spouse; 6) your house burned down; or 7) “you can establish that the expense of purchasing health insurance would cause you to experience serious deprivation of food, shelter, clothing or other necessities.”
Ya gotta luv number 7. And in Massachusetts, exemptions come with an expiration date, so you have to clean up your act in short order. Under the ACA, the Secretary of Health and Human Services will determine if, indeed, you have suffered a hardship that keeps you from being able to pay for coverage.
9. OTHER TIDBITS
There is much more in the ACA including all kinds of rules and penalties for employers, employees and the self employed as well as the Accountable Care Organization (ACO) model which will be mandated starting in 2014. The latter works as follows: under the simplest option available, a small group of doctors and hospitals – an ACO – will manage your care and be graded and paid based on the outcome of all patients who seek treatment with that ACO. The ACO will also be rewarded with a share of the savings in health costs it achieves by following best treatment practices and reaching specific benchmarks set by CMS. The second option, “shared savings plus risk,” is for larger ACOs. Providers will receive a lump-sum payment to treat their patients and assume a portion of the risk for above target spending but are eligible to keep a greater portion of the savings.
Either of these options reduce patient care to numbers and paperwork because doctors are essentially controlled and incentivized by an administrator in some far-flung office. The ACO model is the insurance industry’s version of “budgeting” the cost of health care which ultimately benefits insurers at the expense of doctors and their patients.
Doctors say that basing their pay on treatment outcomes creates an incentive for them to avoid tough cases whose outcomes could “kill my numbers.” “Paradoxically,” writes Dr. G. Keith Smith, “doctors who are doing sham surgery will be the ones with the best outcomes, as their patients, many of whom don’t need surgery in the first place, will exhibit great, basically perfect outcomes. Physicians who don’t do unnecessary surgery will be pushed to do so to improve their ‘scores.’ ‘Pay for performance’ trends in medicine are not a good idea in my opinion. Paying based on patient outcomes will have perverse effects, not the least of which will be the complete denial of care to the very sick.” http://www.medibid.com/blog/2012/10/your-disease-can-kill-you-in-more-than-one-way/?utm_source=Registered+Physicians&utm_campaign=8f9028ddaf-October_Physician_Newsletter11_17_2012&utm_medium=email
The ACA also requires Health Insurance Exchanges to establish a navigator program to inform the uninsured about the availability of government-approved subsidized plans at an Exchange and to facilitate enrollment in these plans, but it leaves the design of the program up to each Exchange.
Depending how an Exchange sets up its program, some Navigators will sell plans offered by an Exchange while others will be responsible for maintaining the existing market but may also be allowed to sell Exchange plans. All seller Navigators will be compensated either by Exchanges or insurance carriers for the plans they sell. Many options are being considered by Exchanges including using insurance agents. Hopefully, Navigators and insurance agents will not be knocking on your door or contacting you by phone. That would be over the top. Here’s a link to read what the California Exchange is pondering with regard to its Navigation program. http://www.healthexchange.ca.gov/StakeHolders/Documents/CHBE,DHCS,MRMIB_StatewideAssistersProgramDesignOptionsRecommendationsandWorkPlan_6-26-12.pdf
10. ENROLL AMERICA, HERNDON ALLIANCE & THE EXCHANGES – MASTERS OF SPIN
Since many Americans don’t know about the ACA, somehow the word has to get out and people must be encouraged to purchase health insurance either in the open market or at an Exchange. And who better to do this?
Enter “Enroll America” – a nonprofit 501(c)3, financially backed by Aetna, Blue Cross Blue Shield, UnitedHealth, America’s Health Insurance Plans, hospitals, associations that represent drug manufacturers and nonprofits with vested interests. For insurers and pharma, the ACA is manna from heaven – scratch that – manna from Capitol Hill – and the dollar signs in their eyes are on fire! These profit seekers and connected nonprofits will be using every avenue possible to maximize their bottom lines.

The mission of Enroll America per its website is to “ensure that all Americans are enrolled in and retain health coverage.” It’s Board of Directors and Avisory Council reads like a Who’s Who in the Medical Industry Cartel – CEOs, presidents, vice presidents and directors of such entities as the American Hospital Association, Express Scripts, Medicaid Health Plans of America, Kaiser Permanente and many others – the list is long. If you would like to donate to these mega-profit vultures, you can do so on the Enroll America home- page. The goal is $100 million by 2014.

http://www.enrollamerica.org

In its publication, “Ten Ways to Make Health Coverage Enrollment and Renewal Easy,” Enroll America has recommended availability of web-based applications to increase the places where people can enroll in coverage: at home, at grocery stores, community health centers, state fairs, sporting events, places of worship, and more. Gee, you can apply for insurance while you pray. How thoughtful. http://www.enrollamerica.org/best-practices-institute

The strategy for insurers and state Exchanges to persuade you to purchase insurance and warn you about the penalties includes using ads, social media, blogs, YouTube, Flickr, Twitter, hospitals, health centers, McDonald’s, in-store radio announcements, ballparks, county fairs, libraries, laundromats, community events, libraries, county fairs and drugstores – you name it. Blue Cross Blue Shield has partnered with H & R Block. Health insurers are already setting up shop inside some supermarkets so they can answer your questions and sign you up for coverage while you do your grocery shopping. They will likely be showing up in shopping malls – maybe even in parking lots, on street corners and at church fairs. And, their aim is to recreate themselves from the bloodsucking leeches that they are to your new, cool-dude friends.
We’ll be living in Occupied Territory.
Let’s connect some dots. The executive director of Enroll America is Ron Pollack, also president of Families USA – a nonprofit and friend of the industry. On its website, Families USA bills itself as “a national non-partisan organization dedicated to the achievement of high quality, affordable health care for all Americans.” Philippe Villers and Robert Crittenden, M.D. are on Families USA Board of Directors. Mr. Villers is also on the BOD of Herndon Alliance, Bob Crittenden is a Herndon staff member and Ron Pollack is a Herndon founder. http://www.familiesusa.org
Herndon Alliance is an influential health care spinmeister creating messaging to change public opinion and tweaking each message to reach particular groups.
Herndon has close ties to Capitol Hill and helped market the ACA providing words politicians and supporters should use to promote the bill. For example, during the national health care debacle a few years ago, you heard Mr. Obama et al continually talk about ‘choice,’ ‘we need a uniquely American solution,’ ‘fair rules,’ ‘investing in America’s future’ and ‘high-quality, affordable healthcare.’ That last one is used in Families USA mission statement. The Council for Affordable Health Insurance, a frontgroup for the industry, gets right to the point – its name. Ron Pollack worked with the Obama administration to help reshape public opinion of Mr. Obama’s unpopular health care bill. Leading up to 2014 when the Exchanges are scheduled to open, there will most likely be a blitz of TV ads in which you will hear many of these same nebulous, feel-good words. And, you’ll undoubtedly read or hear plenty of Herndon spin from your Exchange and throughout your state in the immediate future.
In the interest of coming up with messaging, Enroll America held a few focus groups and commissioned a nationwide survey in fall 2012. Research was provided by Celinda Lake from Lake Research Partners, a national public opinion and political strategy research firm. One takeaway was when a monthly premium cost was given, the majority of people polled thought that it was too expensive and the ACA would not provide affordable and comprehensive coverage even with the government tax credits (subsidies). So, Lake Research Partners advised Enroll America not to mention specific costs but to use the phrase ‘free or low-cost plans.’ http://www.nytimes.com/2012/12/20/us/officials-confront-skepticism-over-health-law.html?ref=us&_r=0&pagewanted=all
Herndon has been working on messaging various parts of the ACA that will be used by outreach partners, insurers and state Exchanges. Its messaging is not based on truth or evidence – Herndon actually stays away from any mention of facts as you read above regarding the cost of plans. Instead, its messaging is designed to mislead an uninformed public.
A few of Herndon’s target populations include voters, people of color, red states, skeptical audiences, and you’ll love this one – Elevator Language with a list of succinct scripts to use based on the person you’re speaking to during the ride. You must check out Herndon’s website and read the many instructions of what to say and what not to say. You’ll either get very annoyed or laugh yourself silly. http://herndonalliance.org/resources/research/communications-tips-exchange-talking-with-voters.html
http://herndonalliance.org/resources/implementation-basics/communications-tips-to-use-with-skeptical-audiences.html
Here are some examples of Herndon spin regarding the ACA:
— Use “family values” when talking to the public about the expansion of Medicaid. Is estate recovery a family value? http://herndonalliance.org/resources/what-s-new/talking-about-medicaid-connecting-with-the-public.html
— When talking about the ACA’s required Accountable Care Organization (ACO) model that will pay doctors according to patient outcomes and reward them for savings they achieve, Herndon says to call this “Coordinated Patient Care” and “do not connect pricing with rewards or incentives for doctors” or “with lump-sum payments for medical care” and do not mention “payment based on positive patient outcomes.” Why not? The three do-nots are how ACOs work. (ACOs are described in topic 9.) http://herndonalliance.org/resources/system-change/payment-reform-quality-care-pricing.html http://herndonalliance.org/resources/system-change/coordinated-patient-care.html

— Here’s an award winner: “Members of Congress will purchase their insurance at the Exchange. If members of Congress are part of the marketplace then it’s got to offer quality plans and protections.” http://herndonalliance.org/resources/research/communications-tips-exchange-talking-with-voters.html

— Stressing that under the ACA insurers won’t be able to deny coverage for pre-existing diseases is a Herndon biggie. In fact, you heard this many times over from Mr. Obama and other politicians. But a loophole in the law allows insurers to rescind (cancel) your policy if you intentionally put false or incomplete information on your application. The ACA says you must be given at least 30 days’ notice before your coverage can be rescinded, giving you time to appeal the decision or find new coverage. So, if your care becomes costly for the insurer and you didn’t mention you had a rash on your arm when you were 15, that’ll work. How can you prove if leaving this out was intentional or not? It’s them against you.

Enroll America’s Best Practices Institute is publishing a series of briefs on the best way to write and design websites and marketing materials, no doubt, using Herndon messaging. PR and marketing firms are helping various state Exchanges come up with appealing branding such as using a name everyone will like and spiffy logos with cool type styles in colors that will appeal to all audiences. Branding lessons include advising Exchanges which words to ‘embrace’ such as emphasizing choice, control, transparency and competition. Other messaging includes, “the Exchange should be viewed as an educator, not an enforcer” and using the word ‘marketplace’ instead of Exchange is a must. Tennessee Health Care Campaign will be telling potential customers “. . . the exchange offers us more choices, greater control over our health care, and more competition to control costs.” It’s all Herndon’s handywork in one form or another. http://dhmh.maryland.gov/exchange/pdf/Brand_Recommd_may182012_final.pdf http://www.thcc2.org/PDFs/rtm_exchange_talking_point.pdf
More choice means choice of insurance companies, not choice of doctors and hospitals. In rural areas, there may be only one insurer offer- ing plans which means one network and doctors may not be taking new patients. This happened in MA under Romneycare, and on top of that, many doctors would not accept people in the subsidized plans because of time-consuming red tape and low reimbursement rates. Under the ACA, insurers are planning to limit networks in the cheaper plans at the Exchanges. Having too few doctors in a network is a means of suppressing the use of health care which increases an insurer’s profits. Further on in this lesson, you’ll learn that the Maryland Exchange has been advised to ignore negative problems such as not enough doctors to serve the newly insured. http://www.kaiserhealthnews.org/Stories/2013/January/23/HMO-limited-networks-comeback-in-exchanges.aspx
Choice is definitely a non starter for people found eligible for Medicaid – the ACA allows no other choice for this segment of the popula- tion and many doctors do not accept Medicaid. As for giving you greater control, considering all the rules about income and FPL, not to mention the data-mining to monitor your income during the year and those nasty tax credit paybacks, it’s you who is being controlled. And competition? Read this stunning op-ed by Nomi Prins: “Real Danger of “Obamacare” Insurance Company Takeover of Health Care.” http://www.nationofchange.org/real-danger-obamacare-insurance-company-takeover-health-care-1352648027
In Enroll America’s January 15, 2013 press release, Executive Director Rachel Klein says the ACA offers the promise of “access to comprehensive, affordable health coverage.” That is a false promise. As you learned in this lesson, coverage in the plans that will be offered at the Exchanges, with the exception of the two most expensive, is anything but comprehensive – the cheaper plans are unafford- able to use. Furthermore, how can she claim that the cost of the plans are affordable? Ms. Klein should be well aware of the nationwide survey Enroll America commissioned in which the majority of people polled said that the plans are too expensive. http://files.www.enrollamerica.org/news-room/press-releases/Enroll_America_Plans_Major_Affordable_Care_Act_Enrollment_Campaign_1-15-13.pdf
http://www.nytimes.com/2012/12/20/us/officials-confront-skepticism-over-health-law.html?ref=us&_r=0&pagewanted=all
Currently PR firms are working with some state Exchanges to develop effective communications plans and advertising campaigns. Names include Mintz & Hoke, Hill & Company Communications and Weber Shandwick just to name a few. Ask the Massachusetts Health Insurance Connector – the prototype of an Exchange in the land of Romneycare – how much it spent on PR contracts over the years. In 2007, board members signed off on a two-year contract with Weber Shandwick for $1.85 million the first year with nearly $3 million for advertising – commission on media buys not included. And, by the way, the MA Connector upper management boasts six-figure salaries. Former MA Connector Executive Director Jon Kingsdale’s salary in 2007 was $225,000 and increased in 2008 to $231,750. In 2007, Deputy Director Rosemary Day alternated between a four-day and five-day work week to the tune of $175,000. These are only two examples of the many high-flying salaries at the MA Connector, an operation run by politicians and unelected political appointees and influenced by executives from the private insurance industry, http://www.wickedlocal.com/cambridge/news/x497793387/Connector-re-ups-contract-with-Cambridge-based-Weber-Shandwick http://www.boston.com/yourlife/health/other/articles/2007/01/27/6_figure_pay_for_care_plan_overseers/?page=full http://www.highbeam.com/doc/1G1-166773095.html
Add up pay scales like that for every Exchange in the country, throw in some bennies, a PR contract for each Exchange, campaign costs and compensation paid by Exchanges to Navigators for plans they sell – a grand and costly effort to push more people into America’s for-profit health care system. Your tax dollars at work and mega bucks that could be used for actual hands-on medical care.

The Maryland Exchange has three campaign funding levels – Basic, Plus and Full-Scale – with a total for year one, two and three. Basic funding for year one is $2,450,000, Plus is $4,000,000 and Full-Scale is $6,300,000. See p.137 at this link for years two and three. http://www.dhmh.maryland.gov/exchange/pdf/FinalAdvertisingReportWeber.pdf

The following, from the maryland link above, gives you an idea of some of the strategies that will be in play, most likely in all states. The Maryland Exchange has been advised by Weber Shandwick to “establish a system to monitor newspaper, radio, TV and online conversations about the Exchange and the program and to establish procedures and priorities for responding to negative media stories, op-eds, blogs and reports.” You can find this in the Risk Management and Responses section of Maryland’s strategic marketing plan.

In the Earned Media/Public Relations section, advice includes “ . . . putting out stories on the first effective enrollees, enrollment number milestones, and enrollee testimonials. Each of these becomes the focus for positive, brand-reinforcing stories. There will also be the risk of negative stories, including potential topics such as enrollment snafus, delays in issuing insurance cards, the cost of Qualified Health Plans [government-approved plans], claims of ‘shoddy’ Bronze coverage, incidents of physicians refusing to accept enough new patients to serve the uninsured and other negative topics.” “While coverage is bound to include some level of criticism it can be success- fully countered by putting a human face on heatlh reform.”
The Social and Digital Media section advises an invasion of the Internet including social media to market health insurance by “delivering the right messages to the right audience at the right time,” (probably using Herndon spin) to “help drive enrollment in the Exchange,” and also flooding newspapers with op-eds to contradict reported adverse effects of the ACA.
More details can be found at the Maryland pdf link below. It’s worth looking at this presentation to grasp the big business approach of Exchanges which is clearly profit-driven. The Maryland Exchange strategy is just one example. The goal of Exchanges is sell, sell, sell. http://www.dhmh.maryland.gov/exchange/pdf/FinalAdvertisingReportWeber.pdf
Exchanges certainly have a lofty goal – promote success stories only and be ready to contradict and cover up the bad stuff as quickly as possible. Massachusetts residents have been there. The Connector and state politicians including the governor made sure that anyone being harmed by Romneycare would not be heard in spite of statewide survey reports put together by outreach agencies advising state legislators and powerplayers that low-income people were not faring well under this law. Various issues were spelled out and testimonials were included, but residents’ concerns about the adverse effects of Romneycare were ignored. MA national legislators also went along with this agenda as did the mainstream media.
When $130 million was needed in 2009 to balance the Massachusetts state budget, the Connector – with the blessing of MA Gov. Deval Patrick and the MA legislature – removed about 28,000 legal immigrants – working people paying taxes – from their insurance plans. Another 8,000 or so were barred from enrolling in insurance plans because the MA legislature voted to cap enrollment in the subsidized plans. This took place at the same time Mr. Obama was trying to sell the ACA to the nation, so, under pressure from Washington, the MA legislature restored some of the money, and the Connector dumped these people, without their consent, into an out-of-state plan with higher copays, less comprehensive coverage and next to no doctors or safety net hospitals in its network. http://www.huffingtonpost.com/iyah-romm/lessons-from-massachusett_b_380718.html
This has huge implications for the ACA. If legal immigrants can be removed from their plans and others denied enrollment when a state budget is squeezed, which vulnerable segment of the population is next in line? The good news is these legal immigrants in MA sued the Connector and its then-Executive Director, Jon Kingsdale, and the Massachusetts Supreme Judicial Court ruled unanimously that the state could not violate their right to equal protection under the state and federal constitutions and fiscal considerations alone can not justify a state’s invidious discrimination against them. As a result of this decision, the state had to come up with some bucks, and the Connector was forced to put the plaintiffs back into their original plans.
http://www.healthlawadvocates.org/priority-areas?id=0015
Getting back to Enroll America, Herndon Alliance and some of the less-than-honorable Exchange strategies – it’s one thing to inform Americans about the ACA and Exchanges that offer the possibility of either purchasing high-deductible or catastrophic coverage with a loan from the government to help pay for it or being tossed into expanded Medicaid – but, mounting a costly, massive campaign to purposely deceive and manipulate the public with the unstated goal of more profit for the already extremely lucrative health insurance industry is disgraceful.
Is the ACA a fair law if it helps only one small segment of the population but hurts and exploits a larger number to do so? The way this law works is fundamentally unfair and will not bring medical care to the many, but, instead will progress to greater personal debt for individuals and families who can’t afford the “affordable” insurance as well as those who must keep an eye on their income to avoid the many traps and false ends this law creates. At their expense, the forced purchase of health insurance will bring increased revenue to the industry, not to mention more kickbacks to Congress, and in the very near future, the health insurance industry will be “too big to fail.”
The ACA is most definitely a “uniquely American solution” which has little to do with reforming this country’s barbaric health care system. It merely controls peoples’ finances and choices while leaving insurance companies in charge and does virtually nothing to end their abuses. It will leave many millions of Americans uninsured and millions more underinsured at a staggering cost to taxpayers.

Politicians, health care policy wonks and vested interests will brush aside the ACA’s adverse effects. You’ll hear that some have fallen through the cracks of health care reform but the problems can be easily tweaked. You will also witness the usual dog-and-pony show on Capitol Hill in which the two parties play the blame game. The bought-and-paid-for mainstream media will regurgitate whatever Washington feeds it, and TV talking heads will chime in, inviting their “experts” to analyze the situation while real people in the real world struggle to get by under this law or fall by the wayside.
Good luck everyone and watch out for the folding chairs.
addendum:
Obamacare architect leaves White House for pharmaceutical industry job
http://www.guardian.co.uk/commentisfree/2012/dec/05/obamacare-fowler-lobbyist-industry1

Physician payments based on outcomes
http://www.medibid.com/blog/2012/10/your-disease-can-kill-you-in-more-than-one-way/?utm_source=Registered+Physicians&utm_campaign=8f9028ddaf-October_Physician_Newsletter11_17_2012&utm_medium=email

Categories: American History | Tags: , , , , , , , | 2 Comments

Former Cadet Webster Smith’s Appellate Attorney Could Rise or Fall With Obama

Ronald C. Machen, Appellate Defense Attorney for former Coast Guard Academy Cadet Webster Smith.

Ronald C. Machen Jr., U.S. Attorney for the District of Columbia, has never run for public office. Many successful politicians have started careers doing just what he has done. His aggressiveness as U.S. Attorney for the District has ousted two city council members from city hall and has turned up the heat on anyone within reach of the tainted money that floated around Mayor Vincent C. Gray’s successful mayoral campaign in 2010. Rudolf Giuliani was the U.S. Attorney in New York. After he had successfully prosecuted a number of high-profile Mafia cases and cases against Wall Street financiers, he ran for Mayor of New York. He went on to serve two terms.

The career of Attorney Machen could rise or fall with the fortunes of President Obama. Some new presidents retain a batch of U.S. attorneys but the coveted appointments typically are dictated by the winds of national politics.

Voters who decide in November whether to re-elect President Obama or replace him with Republican challenger Mitt Romney also might determine the fate of the most powerful man in D.C. politics.

Former Coast Guard Cadet, Webster Smith, the first USCG cadet ever to be court-martialed.

Machen is no stranger to high profile cases, and he has taken his share to the U.S. Supreme Court. He represented former Coast Guard Academy cadet, Webster Smith in his efforts to overturn his 2006 court-martial conviction.

(https://www.amazon.com/author/cgachall.blogspot.com)

The Webster Smith Story is an American tragedy.  It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family.

To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.

The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people on trial. Everything that we profess to stand for as Americans was on trial.

“The expectation is if Gov. Romney becomes President Romney, he’ll replace all the U.S. attorneys. Because that’s what presidents do,” said Paul Butler, a Georgetown law professor and former prosecutor for the U.S. Department of Justice.

Conversely, analysts say, Mr. Machen, whom Mr. Obama tapped to lead the District’s office in December 2009, is on the shortlist of federal prosecutors qualified for a promotion to the upper echelons of the Justice Department if the president wins a second term and reorganizes his top law enforcement offices. Machen could even replace Attorney General Eric H. Holder, Jr. who was sworn in as the 82nd Attorney General of the United States on February 3, 2009 by Vice President Joe Biden.

Mr. Machen, a former partner at the WilmerHale law firm who played football at Stanford University, leads the largest of the 93 U.S. attorney’s offices in the nation and its territories. Because of the District’s quasi-federal status, the office has an annual operating budget of about $70 million and roughly 300 assistant attorneys equipped to handle both federal crimes and local prosecutions that normally would fall to a state- or county-level district attorney, office spokesman Matt Jones said.

Mr. Jones, who declined to discuss potential post-election changes, said more than half of the office’s assistant U.S. attorneys are assigned to local prosecutions.

U.S. attorneys are given wide latitude in the types of cases they prosecute, and the dual caseload affords the top D.C. prosecutor a broad spectrum of cases to pursue. During the George W. Bush administration, U.S. Attorney Roscoe C. Howard Jr. said he wanted to “beef up” the District Court side of the District’s office to attract higher-profile cases, including terrorism cases and cases with international effect, in the wake of the attacks on Sept. 11, 2001.

During the current administration, Mr. Machen’s office has taken on a range of high-profile matters, such as the unsuccessful prosecution of baseball pitcher Roger Clemens on charges that he lied to Congress and the convictions of five D.C. men involved a series of shootings in 2010 that killed five city youths, including three teenagers on South Capitol Street.

Mr. Machen quickly made local corruption a top priority after a trickle of scandal from city hall tarnished the local government’s reputation and prompted oversight hearings and sweeping reforms. The well-worn path from the John A. Wilson Building to the U.S. District Courthouse may have stained city politics, but Mr. Machen’s crew has rewritten the narrative on how federal prosecutors handle local corruption in the nation’s capital.

“This is not a city in which we’ve had effective and aggressive public-corruption prosecutions in the past,” Mr. Butler said, citing prosecutors’ inability to obtain verdicts on many of the charges that resulted from “mayor for life” Marion Barry’s high-profile drug arrest in 1990.

Although the top prosecutor sets the tone for the office, analysts say, it is unlikely that a new president – a Republican in this instance if Mr. Romney wins – would select a U.S. attorney who wants to quash investigations into majority-Democratic city officials and their associates. It is typically the line assistants – career assistant attorneys who are not political appointees – who do the heavy lifting in each investigation.

“There’s so much momentum from the work being done at the line attorney level,” said Stephen Vladeck, a professor at American University’s Washington College of Law. “That’s why the politics are not always partisan in that respect. Is it worth exerting yourself to stop the already moving boulder?”

Mr. Machen’s office is eight for eight in securing guilty pleas from city politicians and their associates in the city’s highest-profile corruption cases since the start of the year. After a civil case by D.C. Attorney General Irvin B. Nathan, the prosecutor’s office charged council member Harry Thomas Jr., Ward 5 Democrat, in January with stealing public funds intended for youth sports programs. Thomas resigned his council seat and is serving a three-year prison term.

Six months later, Mr. Machen’s office took down council Chairman Kwame R. Brown on felony bank fraud and misdemeanor campaign finance charges, but a long-running probe into financial irregularities during the 2010 Gray campaign has yet to reach its zenith.

While many D.C. politicians frequently took a wait-and-see approach to their colleagues’ legal troubles, Mr. Machen and FBI investigators lambasted the ousted leaders’ “sense of entitlement.”

Categories: Military Justice | Tags: , , , , , , , , , | Leave a comment

President Obama Delivers Graduation Speech At Air Force Academy

US President Barack Obama delivers commencement address at the US Air Force Academy in Colorado Springs, Colorado, on May 23, 2012. Since 2009, Obama has delivered commencement addresses at the U.S. Naval Academy in Annapolis, Md., the U.S. Military Academy at West Point, N.Y., and the U.S. Coast Guard Academy in New London, Conn. Obama’s commencement speech in Colorado was his last of the 2012 spring season.

The president spoke in Colorado just as Romney was across the street from the White House, delivering a speech at the U.S. Chamber of Commerce in which he condemned Obama’s record on education. Obama also reiterated the economic themes of his campaign, spelling out a vision of debt reduction with targeted spending.

Obama was keeping up a presidential tradition of speaking to one of the service academies every year at graduation time.

The speech was the president’s last commencement address of the season. Graduation ceremonies are scheduled for this Saturday 26 May at the U.S. Military Academy at West Point, where Vice President Joe Biden will be the featured speaker, and at the U.S. Naval Academy on Tuesday 29 May 2012.

His speech followed a diplomatic flurry in which he hosted the NATO summit in Chicago, where allies cemented an exit strategy for the Afghanistan war, and the G-8 summit at Camp David in Maryland.

“There’s a new feeling about America,” Obama said. “I see it everywhere I go, from London and Prague, to Tokyo and Seoul, to Rio and Jakarta,” Obama said. “There’s a new confidence in our leadership.”

NATO allies this week affirmed that the war in Afghanistan will halt at the end of 2014. The final U.S. troops left Iraq at the end of last year.

A spokeswoman for the Republican National Committee, Kirsten Kukowski, said Obama’s promises have not yielded enough results for today’s college graduates.

“America’s youth face soaring unemployment, underemployment and rising tuition,” she said. “It’s time to elect a president who treats future generations as a priority and not just a political talking point.”

 

The President went on to say: QUOTE:

Cadets, you distinguished yourselves as leaders before you ever stepped foot on the Terrazzo. And when you arrived, I know your upper classes gave you quite a welcome. They let you experience the joy of Beast. The pleasure of Recognition. They made you experts at filling out forms. I only ask that you resist the temptation to rate my speech: “fast-neat-average-friendly-good-good.”

But you survived. In you we see the values of Integrity, Service, Excellence that will define your lives. And I know you couldn’t have made it without the love and support of your moms and dads and brothers and sisters. So give a big round of applause to your families.

This academy is one of the most demanding academic institutions in America. And you have excelled. I’m told you have set at least three Academy records. The largest number of graduates ever to go directly on to graduate school. The largest number of female graduates in Academy history. You will follow in the footsteps of General Janet Wolfenbarger, who I was proud to nominate as the first female four-star general in Air Force history.

And your final distinction—breaking the world record for the largest game of dodgeball. More than 3,000 of you. For more than 30 hours. I did not know that was possible. Then again, you’re also the class that snuck into the last Superintendent’s office and moved all his furniture—to your dorm rooms. Which brings me to some important business. In keeping with long-standing tradition, I hereby grant amnesty to all cadets serving restrictions and confinements for minor offenses. General Gould, I’ll let you define “minor.”

Cadets, this is the day you finally become officers in the finest Air Force in the world. Like generations before you, you will be charged with the responsibility of leading those under your command. Like classes over the past 10 years, you graduate in a time of war and you may find yourself in harm’s way. But you will also face a new test. That’s what I want to talk with you about today.

Four years ago, you arrived here at a time of great challenge for our nation. Our forces were engaged in two wars. Al Qaeda, which had attacked us on 9/11, was entrenched in their safe-havens. Many of our alliances were strained, and our standing in the world had suffered. Our economy was in the worst recession since the Great Depression. Around the world and here at home, many questioned whether the United States still had the capacity for global leadership.

Today, you step forward into a different world. You are the first class in nine years that will graduate into a world where there are no Americans fighting in Iraq. For the first time in your lives—and thanks to Air Force personnel who did their part—Osama bin Laden is no longer a threat to our country. We’ve put al Qaeda on the path to defeat. And you are the first graduates since 9/11 who can see clearly how we’ll end the war in Afghanistan.

What does all this mean? When you came here four years ago, there were some 180,000 American troops in Iraq and Afghanistan. Now, we’ve cut that number by more than half. And as more Afghans step up, more of our troops will come home—while achieving the objective that led us to war in the first place: defeating al Qaeda, and denying them a safe-haven. So we aren’t just ending these wars, we’re doing so in a way that makes us safer, and stronger.

Today we pay tribute to all our brave men and women in uniform who gave their lives in Iraq and Afghanistan to make this progress possible—including 16 graduates of this Academy. We honor them—always.

For a decade, we have labored under the dark cloud of war. Now, we can see the light of a new day on the horizon. The end of these wars will shape your service and it will make our military stronger. Ten years of continuous military operations have stretched our forces and strained their families. Going forward, you’ll face fewer deployments. You’ll have more time to train and stay ready. You’ll be better prepared for the full range of missions you’ll face.

Ending these wars will also ensure that the burden of our security no longer falls so heavily on the shoulders of our men and women in uniform. You can’t be expected to do it alone. There are many sources of American power—diplomatic, economic, development and the power of our ideals. We need to be using them all. And today, we are.

Around the world, the United States is leading once more. From Europe to Asia, our alliances are stronger than ever. Our ties with the Americas are deeper. We’re setting the agenda in the region that will shape our long-term security and prosperity like no other—the Asia-Pacific.

We’re leading on global security. Reducing our nuclear arsenals with Russia, even as we maintain a strong nuclear deterrent. Mobilizing dozens of nations to secure nuclear materials so they never fall into the hands of terrorists. And rallying the world to put the strongest sanctions ever on Iran and North Korea, which cannot be allowed to threaten the world with nuclear weapons.

We’re leading economically—forging trade pacts to create new markets for our goods. Boosting our exports, stamped with those three proud words—”Made in America.” And we’re expanding exchanges and collaborations in areas that people often admire most about America—our innovation, our science, our technology.

We’re leading on behalf of human dignity and freedom. Standing with the people of the Middle East and North Africa as they seek their rights. Preventing a massacre in Libya with an international mission in which the United States—and our Air Force—led from the front. We’re leading global efforts against hunger and disease. And we’ve shown our compassion, as so many airmen did in delivering relief to our neighbors in Haiti when they were in need and to our

Japanese allies after the earthquake and tsunami.

Because of this progress, there’s a new feeling about America. I see it everywhere I go, from London and Prague, to Tokyo and Seoul, to Rio and Jakarta. There’s a new confidence in our leadership. And when people around the world are asked “Which country do you admire most?”…one nation comes out on top—the United States of America.

The world stage is not a popularity contest. As a nation, we have vital interests, and we will do what is necessary to defend the country we love—even if it’s unpopular. But make no mistake, how we’re viewed in the world has consequences—for our national security, for your lives.

When other countries and people see us as a partner, they’re more willing to work with us. It’s why more countries joined us in Afghanistan and Libya. It’s why nations like Australia are welcoming our forces, to stand side-by-side with allies and partners in the South Pacific. It’s why Uganda and its African neighbors have welcomed our trainers to help defeat a brutal army that slaughters civilians.

I think of the Japanese man in the disaster zone who, upon seeing our airmen delivering relief, said, “I never imagined they could help us so much.” I think of the Libyans who protected our airman when he ejected over their town, because they knew America was there to protect them. And—in a region where we’ve seen the burning of American flags—I think of all the Libyans who were waving American flags.

Today, we can say with confidence and pride—the United States is stronger, safer and more respected in the world. Because even as we’ve done the work of ending these wars, we’ve laid the foundation for a new era of American leadership. And now, cadets, we have to build on it. Let’s start by putting aside the tired notion that says our influence has waned, that America is in decline. We’ve heard that talk before.

During the Great Depression, when millions were unemployed and some believed that other economic models offered a better way, there were those who predicted the end of American capitalism. They were wrong. We fought our way back, created the largest middle class in history and the most prosperous economy the world has ever known.

After Pearl Harbor, some said the United States had been reduced to a third-class power. But we rallied, we flew over The Hump and took island after island; we stormed the beaches and liberated nations; and we emerged from that war as the strongest power on the face of the Earth.

After Vietnam and the energy crisis of the 1970s, some said America had passed its high point. But the very next decade, because of our fidelity to the values we stand for, the Berlin Wall came tumbling down and liberty prevailed over tyranny in the Cold War.

And there was a time—the 1980s, with the rise of Japan and the Asian tigers —when many said we had lost our economic edge. But we retooled, we invested in new technologies and we launched an Information Revolution that changed the world.

After all this, you’d think folks would understand a basic truth—never bet against the United States of America.

One of the reasons is that the United States has been, and will always be, the one indispensable nation in world affairs. This is one of the many examples of why America is exceptional. And it’s why I firmly believe that if we rise to this moment in history, if we meet our responsibilities, then—just like the 20th century—the 21st will be another great American Century. That’s the future I see; that’s the future you can build.

I see an American Century because we have the resilience to make it through these tough economic times. We need to put America back to work by investing in the things that keep us competitive—education and high-tech manufacturing; science and innovation. We need to pay down our deficits, reform our tax code and keep reducing our dependence on foreign oil. We need to get on with nation-building here at home. And I know we can, because we’re still the largest, most dynamic, most innovative economy in the world. And no matter what challenges we may face, we wouldn’t trade places with any other nation on Earth.

I see an American Century because you are part of the finest, most capable military the world has ever known. No other nation even comes close. Yes, as today’s wars end, our military—and our Air Force—will be leaner. But as Commander in Chief, I will not allow us to make the mistakes of the past.

We still face very serious threats. As we’ve seen in recent weeks, with al Qaeda in Yemen, there are still terrorists who seek to kill our citizens. So we need you to be ready—for the full range of threats. From the conventional to the unconventional. From nations seeking weapons of mass destruction to the cell of terrorists planning the next attack. From the old danger of piracy to the new threat of cyber. We must be vigilant.

So, guided by our new defense strategy, we’ll keep our military—and our Air Force—fast, flexible and versatile. We will maintain our military superiority in all areas—air, land, sea, space and cyber. We’ll keep faith with our forces and military families. And as our newest veterans rejoin civilian life, we’ll never stop working to give them the benefits and opportunities they have earned—because our veterans have the skills to help us rebuild America.

I see an American Century because we have the strongest alliances of any nation. From Europe to Asia, our alliances are the foundation of global security. In Libya, all 28 NATO allies played a role and we were joined in the air by partners, from Sweden to Gulf states. In Afghanistan, we’re in a coalition of 50 allies and partners. Today, Air Force personnel are serving in 135 nations— partnering, training, building their capacity. This is how peace and security will be upheld in the 21st century—more nations bearing the costs and responsibilities of leadership. That’s good for America, and it’s good for the world.

I see an American Century because no other nation seeks the role that we play in global affairs, and no other nation can play the role that we play in global affairs. That includes shaping the global institutions of the 20th century to meet the challenges of the 21st. As President, I’ve made it clear that the United States does not fear the rise of peaceful, responsible emerging powers, we welcome them. Because when more nations step up and contribute to peace and security, that doesn’t undermine American power, it enhances it.

Moreover, when people in other countries see that we’re rooting for their success—not trying to hold them down—it builds trust and partnerships that can advance our interests for generations.

It makes it easier to meet common challenges, from preventing the spread of nuclear weapons to combating climate change. And so we seek an international order where the rights and responsibilities of all nations and peoples are upheld and where counties thrive by meeting their obligations and face consequences when they don’t.

I see an American Century because more and more people are reaching toward the freedoms and values we share. No other nation has sacrificed more—in treasure, in the lives of our sons and daughters—so that these freedoms could take root and flourish around the world. And no other nation has made the advancement of human rights and dignity so central to its foreign policy. That’s because it’s central to who we are, as Americans. It’s also in our self-interest, because democracies become our closest allies and partners.

There will always be some governments that try to resist the tide of democracy, who claim theirs is a better way. But around the world, people know the difference between us. We welcome freedom—to speak, to assemble, to worship, to choose your leaders. They don’t. We welcome the chance to compete for jobs and markets—freely, fairly. They don’t. And when fundamental human rights are threatened around the world, we stand up and speak out. They don’t.

We know that the sovereignty of nations cannot strangle the liberty of individuals. And so we stand with the students in the streets who demand a life of dignity and opportunity, and with women everywhere who deserve the same rights as men. We stand with the activists, unbowed in their prison cells, and with the leader in parliament moving her country toward democracy. We stand with the dissident who seeks the freedom to say what he pleases, the entrepreneur who wants to start a business without paying a bribe, and all those who strive for justice and dignity. For they know, as we do, that history is on the side of the free.

Finally, I see an American Century because of the character of our country—the spirit that has always made us exceptional. It’s that simple yet revolutionary idea—there at our Founding and in our hearts ever since—that we have it in our power to make the world anew; to make the future what we will. It’s that fundamental faith—that American optimism—which says no challenge is too great, no mission is too hard. It’s the spirit that guides your class—”never falter, never fail.”

That’s the essence of America, and there’s nothing else like it anywhere in the world. It’s what’s inspired the oppressed in every corner of the world to demand the same freedoms for themselves. It’s what’s inspired generations to come to our shores, renewing us with their energy and their hopes. That includes a cadet graduating today, who grew up in Venezuela, got on a plane with a one-way ticket to America and today is closer to his dream of becoming an Air Force pilot—Edward Camacho. Edward says what we all know to be true: “I’m convinced that America is the land of opportunity.”

That’s who we are. That’s the America we love. Always young. Always looking ahead, to that light of a new day on the horizon. Cadets, as I look into your eyes—as you join that Long Blue Line—I know you’ll carry us even farther, even higher. And with your proud service, I am absolutely confident that the United States of America will meet the tests of our time. We’ll remain the land of opportunity. And we’ll stay strong as the greatest force for freedom and human dignity the world has ever known.

May God bless you, and may God bless the United States of America. (UNQUOTE)

 

Following his speech, the president was headed to fundraisers in Denver and California’s Silicon Valley.

 

cd24OBAMA President Barack Obama arrives at Buckley Air Force base in Aurora today May 23rd, 2012. He was in Colorado to give the commencement address to graduating cadet at the Air Force Academy in Colorado Springs. He flew to Denver on Air Force One for a fundraising event.

Categories: American History | Tags: , , , , , , , | Leave a comment

Blog at WordPress.com.