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Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act
Last year, we wrote extensively about photo ID laws and the Supreme Court’s decision to strike a key section of the Voting Rights Act of 1965. Now, with gubernatorial elections in New Jersey and Virginia, and the debt ceiling and healthcare debates already shaping the 2014 midterms, we’re revisiting voting policies to see which states have enacted tougher restrictions since the Supreme Court ruling in June.
Remind me – what is Section 5 of the Voting Rights Act?
Under the Voting Rights Act, states and localities with a history of racial discrimination needed to get permission from the federal government to enact any changes to their voting laws, in a process called “preclearance.” As of June 2013, nine states, mostly in the South – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – needed to get any new voting laws pre-approved. Some counties and townships in California, Florida, New York, North Carolina, South Dakota and Michigan were also subject to preclearance.
Section 5 first applied to states that imposed literacy tests or other unfair devices, and had low voter registration or turnout. Congress later expanded the law to add jurisdictions with sizable minority populations and English-only election materials.
States and localities could “bailout,” or get off the preclearance list, after 10 years of elections without any problems. Several smaller jurisdictions bailed out over the years, including parts of Connecticut, Idaho, Maine, Massachusetts, Wyoming, Hawaii, and Colorado.
Of course, some of the biggest voting law battles of the 2012 election were in states not covered by Section 5 at all, such as Pennsylvania and Ohio.
What did the Supreme Court strike down in Shelby County v. Holder?
The Supreme Court decided, 5-4, that the preclearance formula was unconstitutional under the 10th Amendment, which gives states the power to regulate elections. The Court ruled that the coverage formula was “based on 40-year-old facts having no logical relation to the present day.”
From the decision:
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One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act – the part of the law that describes how preclearance works – intact. Instead, the Court struck down Section 4, which explains which states and localities are subject to preclearance. If Congress amends Section 4, the Justice Department can start enforcing Section 5 again.
Why does this matter?
Takeaways- Seven preclearance states have announced new restrictions since the Supreme Court rolled back the Voting Rights Act.
- Last year, a federal court called Texas's photo ID law "most stringent in the country.” Now, it's in effect.
- Two months after the Supreme Court ruling on the Voting Rights Act, North Carolinacut early voting and eliminated same-day registration.
- Are you registered to vote? Virginia has purged 38,000 voters, and Kansas has suspended registration for 17,500.
While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.
The Supreme Court’s June 2013 decision also effectively shifted the burden from states to citizens. Before, a state subject to preclearance had to demonstrate that a new voting law was not discriminatory and let voting law experts in the Justice Department evaluate it before it could be implemented. Now it is up to voters to challenge voting laws by filing lawsuits under Section 2 of the Voting Rights Act, which prohibits racial discrimination.
But most court cases involving Section 2 have been limited to redistricting, not other controversial voting measures, says Yale University law professor Heather Gerken.
“With redistricting, there’s always one very wealthy political party or another who can hire some very good lawyers and go into court and challenge it,” Gerken said. “But a lot of the types of things that were challenged under Section 5 were smaller questions, like, ‘Can you change a polling place? Can you shut down early voting hours in ways that might affect the black community?’ There are things smaller than redistricting that can fall through the cracks.”
What have preclearance states done since the Supreme Court ruling?
a NORTH CAROLINA: Two months after the Supreme Court decision, North Carolina passed a number of measures, including strict new photo ID requirements. The law also eliminates same-day voter registration, shortens the early voting period by seven days, and specifies that ballots cast at the wrong polling station will be thrown out. Some changes will be phased in starting in 2014, and the photo ID provision goes into effect in 2016.
The North Carolina NAACP and a civil rights group called the Advancement Project have filed a lawsuit challenging the changes. The Justice Department also filed a suit of its own. But the suits venture into some new legal territory.
“What North Carolina did was definitely at the extreme of practices in this country,” Gerken said. “So if anything is vulnerable to a suit, it’s likely to be the North Carolina law. But again, the case law was built around redistricting cases. It wasn’t built around this kind of work.”
q TEXAS: Last year, a federal court rejected Texas’ voter ID law, calling it “the most stringent in the country.” The panel also rejected the state’s redistricting maps, finding that they protected white incumbents while altering districts with minority incumbents.
But on the very day of the Supreme Court ruling, Texas Attorney General Greg Abbott said the state would “immediately” enact both measures.
The photo ID law requires voters to present an approved form of photo identification, where before they could present mail, utility bills or other proof of voter registration. The Justice Department had refused to approve the law based on the state’s findings that Hispanic registered voters were far less likely to have the approved photo IDs. The new law also requires the photo ID presented on voting day to match the state’s voter rolls — complicating voting for some married women and others with name changes.
The Justice Department has filed a lawsuit against the newly enacted photo ID requirements and joined an ongoing lawsuit against the disputed redistricting maps.
I FLORIDA: After the Supreme Court ruling, Florida resumed its plans to remove non-citizens from its voter rolls using the federal SAVE (Systematic Alien Verification for Entitlements) database. The Department of Homeland Security database helps government agencies check the immigration statuses of people applying for government benefits like drivers’ licenses, housing assistance, or Medicaid.
But opponents of Florida’s measure say that SAVE data is faulty and not meant for elections, and that using the database to verify voter rolls will disenfranchise eligible voters. (Colorado legislators rejected a bill to purge rolls based on SAVE data for this very reason, but that didn’t stop Secretary of State Scott Gessler from moving ahead with the plan.) The Miami Herald found that Florida voters flagged for verification were disproportionately Hispanic, and most turned out to be citizens. The Department of Justice has also said that SAVE is not meant to be “a comprehensive and definitive listing of U.S. citizens,” especially since it doesn’t include data about people born in the United States.
A nonprofit group has challenged the law, but a federal court dismissed the lawsuit after the Supreme Court ruled that Florida was no longer subject to preclearance. Another group has appealed a similar case to the 11th Circuit.
s VIRGINIA: Virginia passed a number of voting laws this spring that seem likely to go into effect in wake of the Supreme Court ruling.
The Virginia legislature passed a photo ID law last year (which the Justice Department approved), but the more recent measure goes further to limit what kinds of voter identification are acceptable. Voters can no longer show utility bills, bank statements, government checks or paychecks before they vote, but they can get an ID for freeif they don’t already have one.
The new laws also require the Virginia State Board of Elections to remove ineligible voters by comparing state voter rolls with the SAVE database and other states.The Democratic Party of Virginia has sued the state over the interstate crosschecks, contending that the database has erroneous information and the law will disenfranchise poor, elderly and minority voters, but a federal judge rejected the suit for lack of evidence. As of Oct. 17, the Board of Elections had already purged more than 38,000 voters.
n SOUTH CAROLINA: In October 2012, a federal court blocked the implementation of South Carolina’s photo ID law until 2013. The court found that although the law was not discriminatory, there was not enough time to implement changes before the 2012 election. South Carolina Attorney General Alan Wilson said the Supreme Court ruling now allows states to “implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”
Y MISSISSIPI: Secretary of State Delbert Hosemann said Mississippi will enact a strict photo ID law by 2014. The state says it will provide free transportation to government offices where voters will be able to obtain free photo IDs.
B ALABAMA: Secretary of State Beth Chapman said Alabama would also enact changes to its photo ID law by 2014. Like Virginia, Alabama used to accept other kinds of non-photo identification, such as utility bills and Social Security cards. But the new law requires voters to present photo IDs (the state will also provide free voter IDs to those who don’t have them). Legislators passed the measure in 2011, but Alabama stalled in submitting the law for preclearance.
D ARIZONA: The Supreme Court issued another significant ruling on voting laws this summer: In Arizona et al. v Intertribal Council of Arizona, Inc. et al., the Court ruled that Arizona, formerly a preclearance state, could not unilaterally require voters to show proof of citizenship before registering to vote in a federal election. But the Court said Arizona could sue the Election Assistance Commission to get the federal voter registration form amended to require proof of citizenship. Now, both Arizona and Kansas have sued the commission.
In case their legal challenges are unsuccessful, the states are setting up two-tiered systems of voter registration, requiring proof of citizenship for state and local races but not federal ones. So far, Kansas has suspended registration for about 17,500 voters until those they submit proof of citizenship.
o SOUTH DAKOTA: Four Directions Inc., a Native American voting rights group, has asked the Justice Department to investigate why Secretary of State Jason Grant has so far refused to use federal money to fund satellite voting centers for registration and early voting on some Native American reservations.
What about non-preclearance states?
The 35 states that were not subject to any kind of preclearance were unaffected by the Supreme Court decision. But several of those states have also moved to tighten voting rules this year.
C ARKANSAS: This spring, Republican legislators overrode the governor’s veto to pass a law requiring voters to show photo IDs. If voters don’t have them, they can cast provisional ballots and return with IDs by the Monday after the election. The state will also provide free IDs to people who do not already have them.
L IOWA: In late March, Iowa implemented an administrative rule allowing Secretary of State Matt Schultz to begin a voter roll purge using the SAVE database. Activists have sued Schultz in an attempt to stop the purge.
O INDIANA: In May, Indiana enacted a law requiring officials to check voter rolls for individuals registered to vote in other states. The advocacy group Project Vote worries that the measure could lead to voter purges.
Z MONTANA: After Democratic Gov. Steve Bullock vetoed a measure that would have eliminated same-day voter registration, the legislature decided to let the people decide. In 2014, Montana citizens will vote in a referendum on whether to keep same-day registration. Backers of the measure say it will cut down on lines at the polls.
c NEBRASKA: This spring, Nebraska shortened early voting by 10 days. Voters will still be able to vote in the 25 days leading up to an election.
b NORTH DAKOTA: North Dakota is the only state without voter registration. In April, the state strengthened its voter ID law to no longer allow people without photo ID to vote by affidavit.
p TENNESSEE: This spring, Tennessee passed a bill restricting the kinds of IDs that can be used to vote. Previously, voters could show student IDs, out-of-state IDs, library cards, or any other IDs issued by counties or municipalities. Now only photo IDs issued by the state of Tennessee or the federal government are acceptable. The Green Party of Tennessee has sued the state over the law.
So, where does all of this leave the Voting Rights Act?
The Supreme Court left it up to Congress to write new preclearance criteria. In a July hearing, House Republicans showed little interest in rewriting Section 4. But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., says there’s actually quiet Republican support for the issue. Rep. Jim Sensenbrenner, R-Wis., made headlines when he publicly supported restoring the law.
“There is at least one Republican, and you’ll find out in the future a lot more, that is committing to putting life in this most important civil rights act that got a stab in the back from the Supreme Court,” Sensenbrenner said.
Gerken, the law professor, isn’t optimistic that Congress will come up with a new Section 4 formula. But she said there are other actions Congress could take. For example, she has advocated that Congress adopt an “opt-in” approach and allow civil rights groups to file simple complaints for the Justice Department to investigate. Then the agency could halt the implementation of discriminatory laws as necessary.
Yale law professor Travis Crum has also suggested a “bail-in” measure, by which Congress could instead strengthen Section 3 of the Voting Rights Act, letting courts put states under preclearance if their voting laws violate the 14th or 15th amendments.
As part of the Justice Department’s lawsuits against Texas and North Carolina, the federal agency has asked the courts to put those states back under preclearance.
This post will be kept up-to-date. Has your state or local government restricted voting rights since June 2013? Tweet at me, email me at kara.brandeisky@propublica.org or leave a comment below.
MAP METHODOLOGY: This map tracks state voting laws before and after Shelby County v. Holder on four key issues: photo ID, early voting, same-day registration and voter roll purging. States with the most restrictive voting measures involving these four issues are the darkest; each state earned one point per restrictive policy. So a state with restrictive policies in all four areas would have a score of four and appear the darkest. The “before” map reflects policies in place on June 24, 2013, the day before the Shelby County v. Holder ruling. The “after” map reflects policies in place as of Oct. 31, 2013, even if the changes are pending implementation. Details on scoring per issue follow.
Photo ID: States received a point if they will require photo ID in upcoming elections (even 2014 or 2016) as of Oct. 31, 2013. States that require ID but also accept non-photo IDs, such as paychecks or utility bills, didn’t receive a point. Likewise, states that have passed photo ID legislation but have been unable to enact the law because of a court order (such as Wisconsin and Pennsylvania), didn’t get a point.
Early voting: States received a point if they don’t allow in-person voting before Election Day, or require an excuse for absentee early voting. States that have shortened early voting didn’t get a point as long as they still allow some early voting.
Same-day registration: States received a point if they don’t allow registration on Election Day.
Voter roll purging: States received a point if they have asked for access to, or support using, the Systematic Alien Verification for Entitlements (SAVE)database to maintain state voter rolls. Not all states that have requested access have actively begun purging voter rolls.
A Month in to Healthcare.gov, Real-Life Winners and Losers
Today marks one month since the disastrous start of Healthcare.gov, the seriously impaired federal health insurance marketplace.
And what a month it’s been. For the first 16 days, a federal government shutdown largely deflected attention from the website’s problems. But since then, three congressional hearings have been held — and more are planned. Political pundits are anointing winners and losers (mostly losers) and trying to predict how the fallout could affect congressional elections next year.
I’m more interested in real-life winners and losers, people whose lives will be changed for better or worse because of the Affordable Care Act.
Clearly, if the website problems persist for much longer and people are unable to sign up for coverage, the list of losers will grow longer by the week. Consumers will lose because they won’t be able to enroll in health plans. Insurers will lose because they will have far fewer customers than anticipated. Hospitals will lose because the law cuts back their reimbursement for care they give to the uninsured. And on and on.
But for the moment, let’s assume some — or most — of those problems will be fixed by the Nov. 30 date promised by the Obama administration.
WinnersOn a very obvious level, winners include young adults who can now remain on their parents health plans until age 26.
They include consumers with medical ailments who have been denied health insurance because of pre-existing conditions.
They include residents of states that opted to expand their Medicaid programs for the poor to cover those with incomes of up to 138 percent of the federal poverty level ($15,856 for an individual and $32,499 for a family of four).
LosersBy contrast, losers include those with lower incomes who live in states that decided not to expand their Medicaid programs. The Daily Briefing run by the consulting firm The Advisory Board Co. had a smart look this summer at which states will have the most uninsured residents in 2016. Being uninsured means you’re losing out.
Also sure losers are undocumented immigrants, who are ineligible for benefits or subsidies under the act.
And for now, at least, small businesses lose out because of the Obama administration’s ongoing delays launching a health insurance marketplace for small businesses. (Healthcare.gov, by contrast, is an insurance marketplace for individual consumers.)
Too Soon to SayAnother group that many commentators count as losers are the hundreds of thousands of consumers who have received cancellation notices from their individual health insurance companies because their policies don’t meet criteria set forth in the Affordable Care Act.
I hesitate to call all of them losers because some of them will be eligible for subsidies from the federal government to offset the cost of their new health insurance, and others will pay less in the new marketplace for better coverage. To be sure, some people clearly will lose out because they will pay more for their coverage — and their benefits won’t be all that much better to offset it.
What Others SayThe New Yorker’s Ryan Lizza had an interesting piece this week in which he spoke to economist Jon Gruber, who broke down winners and losers this way:
About eighty per cent of Americans are more or less left alone by the health-care act—largely people who have health insurance through their employers. About fourteen per cent of Americans are clear winners: they are currently uninsured and will have access to an affordable insurance policy under the A.C.A.
But much of the current controversy involves the six per cent of Americans who buy their own health care on the individual market, which the A.C.A. has dramatically reformed. Gruber argued that half of these people (three per cent of all Americans) will have little change to their polices. “They have to buy new plans, but they will be pretty similar to what they had before,” he said. “It will essentially be relabeling.”
The other half, however, also three per cent of the population, will have to buy a new product that complies with the A.C.A.’s more stringent requirements for individual plans. A significant portion of these roughly nine million Americans will be forced to buy a new insurance policy with higher premiums than they currently pay.
Economist Justin Wolfers tweeted the previous few paragraphs as a chart:
With a huge assist from Jon Gruber & @RyanLizza I made a graph to help you understand winners & losers from Obamacare pic.twitter.com/0LoYNNrXGr
— Justin Wolfers (@JustinWolfers) October 31, 2013I posed this question to several smart folks I know — journalists, scholars, think-tank folks — and this what they said.
Boston University health economist Austin Frakt, who blogs at The Incidental Economist (a must-read), said he breaks down winners and losers into short-term, mid-term and long term.
“Short term there are no winners,” Frakt wrote, mostly because of the problems with the rollout. Even if the website issues are fixed by the end of this month, as promised, it will still be hard to get consumers signed up by Dec. 15 for coverage that begins on the first of the new year.
Looking ahead, Frakt wrote:
Medium term (next year, more or less): Providers and would-be Medicaid beneficiaries in non-expansion states are losers. Winners are those who finally get coverage (let’s assume the exchanges function by or soon after the new year). Entities that had to scramble and make sub-optimal decisions due to late-functioning exchanges lose. Same for people who were impatient and jumped at bad deals.
Still, this will be an uncertain, transition period. There may be insurers that opt not to re-enter the market next year. There may be exchanges that look unstable. I would expect some will be near failure, if not fail. All the obvious entities in those states will be losers, unless something can be done.
Big winners are researchers and those who might consume their work. We will learn a lot about exchanges. This is good for the future of health policy.
Long term (well beyond next year): I expect more states to expand Medicaid, bringing the obvious winners. I expect most exchanges to function, and that’s a big win for residents of those states. I expect Congress to continue to not be able to sensibly deal with failing exchanges and other glitches in the law, so there will be losers.
On the whole, I think the law will prove to be successful, and I consider that a win for America. If only we could make sensible mid-course corrections we’d all be winners.
Cost control will remain an issue. If we don’t make progress there, we’ll all be losers in the very long term. But we may have a decade before that really binds.
Dr. Scott Gottlieb, a resident fellow at the American Enterprise Institute and former FDA official, suggested many of the same winners and losers as I identified above.
Other winners include older, sicker patients who do not have employer-provided health insurance, as well as lower-income younger families who earn between $40,000 and $60,000 a year, because they will qualify for subsidies that will lower their costs.
Among the losers: Those who are young and healthy, who will pay more for coverage than they did before. Families who earn more than $60,000 face high premiums even with subsidies. “Also upper income healthy people lose big. They’re forced to buy a pricier policy than they probably want or need with no benefit of subsidies.”
The biggest losers (I agree) are those who earn less than the federal poverty level and who live in states that did not expand their Medicaid programs. When the Affordable Care Act passed in 2010, Congress envisioned that every state would expand Medicaid and it did not set aside money to provide premium subsidies for those patients in the health insurance exchanges. So they will neither receive Medicaid nor help paying their premiums.
Ironically, in the same states, federal subsidies are available for those who earn more than the poverty level. “Instead of getting Medicaid, they now get Obamacare with full subsidy. If they are young, a bronze plan could be very cheap,” Gottlieb wrote. Although their out-of-pocket costs will be higher than under Medicaid, “they’ll get a better policy with a real network that while skinny, will surely beat Medicaid.”
Dan Diamond, managing editor of the Advisory Board’s Daily Briefing, told me he thought it was too early to pick winners and losers based on the current website problems. But if they hold he said:
Insurers MAY lose — they may get fewer new customers in year one than expected, despite making investments in IT systems, acceding to market reforms, and other perceived sacrifices.
Hospitals and doctors MAY lose, if more folks stay uninsured and they have to carry more bad debt.
On the flip side, debt-collection agencies MIGHT win!
But would that be a win for America?
Health Policy Canceled? What We Know and Don’t Know
Every day, we’re seeing reports that consumers across the country will be dropped by their health insurance companies on Jan. 1 or another date in 2014. But two central questions remain:
First, just how many people will be affected?
Second, and more importantly, is this a good or bad thing?
We don’t yet know the answer to either question, although the answer to the first question is surely a big number. Here’s where things stand:
A minimum of several hundred thousand people with individual health insurance policies (those not provided by their employers) have received letters notifying them that their coverage will be terminated on Jan. 1 — or at some date after that — because their plans don’t meet the requirements of the Affordable Care Act.
The issue has been percolating for several weeks, initially being overshadowed by the rocky rollout of the Healthcare.gov federal health insurance marketplace. But this week, in part because of a prominent NBC News report, the issue has gained traction. Republican lawmakers and the act’s opponents have given it more attention than the website’s continuing woes.
The story is full of nuance, and that’s what makes it easy to misunderstand.
What is definitely true is that many people are receiving notices saying that they will have to find new insurance coverage on Jan. 1 or a later date. That directly contradicts what President Obama said repeatedly: that those who liked their plans could keep them. (The Washington Post has said Obama’s statements deserve four pinnochios because they were not true.)
How many people are affected?
According to the NBC News report:
Four sources deeply involved in the Affordable Care Act tell NBC News that 50 to 75 percent of the 14 million consumers who buy their insurance individually can expect to receive a "cancellation" letter or the equivalent over the next year because their existing policies don’t meet the standards mandated by the new health care law. One expert predicts that number could reach as high as 80 percent.
Sarah Kliff at the Washington Post writes:
It’s hard to put an exact number on this, given that insurance plans are the ones who decide whether or not to continue offering an insurance product. Experts have estimated that somewhere between half and three-quarters of those who currently buy their own policies will not have the option to renew coverage, which works out to around 7 to 12 million people.
Kaiser Health News, among the first to report on the issue, has been more conservative:
Health plans are sending hundreds of thousands of cancellation letters to people who buy their own coverage, frustrating some consumers who want to keep what they have and forcing others to buy more costly policies.
Yesterday, Kaiser posted more:
No one knows how many of the estimated 14 million people who buy their own insurance are getting such notices, but the numbers are substantial. Some insurers report discontinuing 20 percent of their individual business, while other insurers have notified up to 80 percent of policyholders that they will have to change plans.
Even when we do know a firm number, a more fundamental question is: Are these cancellations in consumers’ best interests?
In short, there are winners and there are losers — just as there have been in many other areas of the Affordable Care Act (more on that in a subsequent post).
Some of the people being terminated form their plans will end up paying more for new coverage; some will pay less.
Some will qualify for government subsidies to lower the cost of their insurance even further, and some won’t.
In many if not all cases, they will receive a richer set of benefits. But many consumers may not have wanted them — or needed them (maternity care, for example).
Equally clear is that the new marketplace taking shape will not allow insurance companies to discriminate based on individuals’ pre-existing conditions; nor can insurers charge older people far higher rates than the young.
And just because somebody receives a cancellation notice and believes his or her insurance costs will go up doesn’t mean that’s right. Michael Hiltzik at the Los Angeles Times has done a good piece raising questions about the veracity of some of the stories being reported.
It’s easy to see this issue through a partisan lens, and that is happening. But then there are cases like Paul Levy’s.
Levy is a smart guy, the former president and CEO of Beth Israel Deaconess Medical Center in Boston, and he has a pretty good understanding of how the health-care system operates.
Last weekend, he wrote a post on his blog (“Didn’t they promise lower costs?”) about being dropped by his insurance company and being forced to spend considerably more money for insurance. He had purchased his policy after March 2010, so he wasn’t somebody covered by the president’s “keep your plan” pledge.
To summarize, for $600 more per month, my co-pay for almost everything goes up. My share of an inpatient admission or outpatient surgery goes up 233%; a CT or MRI goes up 500%; and ED visits are double the cost.
Now, I do get the benefit of an out-of-pocket maximum of $3,000. But I will pay $7,200 extra for that protection. To break even, I would have had to spend $10,200 in out-of-pocket items under the Massachusetts plan.
I know I could downgrade to a lower level of insurance and reduce my monthly premiums, but then other items would also change in price and availability. This is the plan that best meets our needs.
A professor of management and operations at Northwestern University’s Kellogg School of Management followed up with Levy and suggested a different plan that could save him some money. But Levy still concluded he’ll be in worse shape than he is now. Here’s a graphic he made comparing his current plan with the plan he will purchase.
Levy writes:
My premium has gone up $220 per month (or 15%), and I will likely spend another $1000 covering the deductibles. My total percentage increase depends on how much additional care I need past my deductibles.
President Obama addressed the issue yesterday during a visit to Boston and made a pretty bold statement: “There are a number of Americans — fewer than 5 percent of Americans — who’ve got cut-rate plans that don’t offer real financial protection in the event of a serious illness or an accident. ...A lot of people thought they were buying coverage, and it turned out not to be so good.”
Levy’s plan doesn’t appear to fit the president’s characterization. (Another example of sweeping generalizations dispensing with nuance.)
While Levy sees value in the act’s goals, he wrote Tuesday that he wishes the administration was more forthright about what is actually happening and less defensive — for instance, parsing the words of the president’s pledge.
I have been listening to actuaries for many months who made it clear that the new plans would have to be more expensive to cover the law’s guaranteed issue and other insurance requirements. Those requirements are extremely desirable in providing insurability and financial security to millions of Americans and are, in fact, key attributes of the ACA. If the costs and benefits of these requirements had been addressed honestly by the administration, perhaps it would not feel the need to parse the President’s promise as finely as his spokesperson did today.
Health-Care Rollout: The View From Kansas
Oct. 30: This post has been updated to reflect quotes from video of today's hearing.
Most-often mentioned state at today’s House committee grilling of Health and Human Services Secretary Kathleen Sebelius? So far, it’s the secretary’s home state of Kansas.
“Madam Secretary, while you’re from Kansas, we're not in Kansas anymore. Some might say that we are actually in the Wizard of Oz land,” Rep. Joe Barton, R-Texas, said to Sebelius during one contentious exchange about her agency’s troubled rollout of Healthcare.gov.
Rep. Frank Pallone, D-N.J., retorted: “I know we're not in Kansas, but I do believe increasingly we're in Oz because of what I see here.”
So, how is this all playing in Kansas?
We decided to check in with the state’s insurance commissioner, Sandy Praeger. Her state has forcefully decided not to take part in the Affordable Care Act, but Praeger, a Republican, has voiced support for health-care reform.
Praeger succeeded Sebelius as commissioner in 2003 when Sebelius became the state’s governor. Praeger is a past president of the National Association of Insurance Commissioners and chairs the group’s health committee.
Here are highlights of our interview, edited for clarity and length.
Q. How do you think the rollout of the health insurance marketplaces is going? Is the media overhyping the problems?
A. Not very well. I think it’s just been unfortunate. It seems like from what I’m hearing that some of the last-minute changes that were requested by the administration have caused some of the problems, forcing people to sign up [for accounts on Healthcare.gov] and put their personal information in before they could shop. It’s been pretty rocky.
Q. Do you think they can be fixed in time for consumers to enroll in coverage beginning Jan. 1?
A. The Affordable Care Act does not depend entirely on the [Healthcare.gov] marketplace. All of the provisions are still there and people can still go to an agent and use a call center and sign up even though the federal exchange [has had problems]. I think there are still other ways for people to get signed up. It’s not as convenient as it was supposed to have been. That part of it is really problematic and hopefully it will get fixed so that people can get signed up by the first of the year.
Q. Have you spoken to insurance companies in your state about how it’s going?
A. They are getting enrollees, but they have not yet been willing to release numbers. It’s a competitive thing. They don’t want to look bad compared to their competitors. Especially during the open enrollment period they want people to sign up for their plan. If it looks like the other company is getting more enrollees, that could affect their marketing. Hopefully HHS is going to release [enrollment] numbers sometime in November.
Q. Is this a tale of a divided country in terms of success and failure? The 14 states that have chosen to run their own exchanges have seen reasonable success, while the 36 that left it to the federal government are most affected by Healthcare.gov’s problems.
A. I think it’s a clear example of how the law was intended. The states that are running their own exchanges — while there have been some technical glitches, which is going to happen with any new computer system rollout — it’s much easier to fix it at the state level. You don’t have as many people to deal with. You have state specific information. When conservative states pulled back and said, ‘We’re not going to do it,’ the reason for doing it is that they didn’t want the law to succeed. And this is a way of creating an impediment.
Think of the complexity of [the federal government] creating something for citizens in 36 states with different health plans. [If those states chose to run their own exchanges,] it would have been a smoother rollout, I think, based on the evidence we’ve seen with the states that have their own exchanges. While it has not been perfect, those states are moving ahead and getting enrollees. I think it is a case of a tale of two systems.
Q. Are you surprised that in some states, the number of people enrolling in the Medicaid expansion far outnumbers those signing up for private plans?
A. No not at all. The way the [marketplace] website is designed, if you’re eligible based on income for Medicaid, you’re immediately moved over to the Medicaid program, where the enrollment is much easier. If you’re going on the exchange to buy private insurance, you have to go through the process, you have to decide which one [plan] do I want. There are a lot more decisions that the individual has to make vs. Medicaid. If you’re put in the Medicaid program, those decisions are part of the Medicaid program. It’s much less complicated. In some states, it’s a huge expansion. In states like ours, where we didn’t expand [Medicaid], there’s very little eligibility.
Q. What advice would you give HHS to make the rollout smoother?
A. That’s tough. If the website is not going to be functioning in time to get people enrolled, then they really need to add more call centers and they need to beef up the call centers, and they need to increase the education and outreach efforts to let people know this is what you need to do.
Q. What about consumers. What advice would you give them?
A. I really recommend that they work with either an insurance agent or one of the navigators to understand the diff in the plans. Don’t just look for the lowest premium but look for coverage that’s going to be comprehensive enough to meet your needs. Low premiums can mean higher out-of-pocket costs. That’s a big decision. If it’s someone that knows they have health conditions, they should probably go for one that has a higher premium and then has lower out-of-pocket costs. The out-of-pocket costs are capped, but for an individual it’s a little bit over $6,000 and for a family $12,500. There’s still some significant out-of-pocket costs before the health plan covers everything.
I think I’ve heard somebody say this is not like a rock concert. The tickets are not going to sell out. You don’t have to do it right now. Famous last words. They can at least see what they’d be eligible for by going to our website and putting in basic family information and income information and it will tell them what the premium would be.
Sebelius Testifies: Four Things to Know About Today’s Obamacare Hearing
Health and Human Services Secretary Kathleen Sebelius will testify before the House Energy and Commerce Committee this morning.
Her appearance comes the week after Healthcare.gov contractors testified before the same committee and a day after the head of the Centers for Medicare and Medicaid Services testified before a different House committee.
Here’s what you need to know:
1. Where to watch the hearing, which begins at 9 a.m. EST:
Live streaming video by Ustream
2. Read Sebelius’ prepared testimony. Politico calls it more of the same:
Sebelius’s eight pages of prepared testimony for the House Energy and Commerce Committee matches nearly word-for-word testimony delivered by CMS Administrator Marilyn Tavenner to Ways and Means on Tuesday.
In both written statements, the officials acknowledge that the website hasn’t met expectations but say the administration is taking major steps to improve it.
Neither testimony includes an apology for the bungled launch—but Tavenner apologized in person at the hearing Tuesday morning.
Clay Johnson (@cjoh), who advocates for open source information in the federal government, annotated the testimony on Rap Genius, with questions and comments.
3. Get familiar with the background.
Sebelius gave an interview to CNN’s Sanjay Gupta last week in which she had this memorable exchange:
GUPTA: The president did say that he was angry about this. I mean do you know when he first knew that there was a problem?
SEBELIUS: Well, I think it became clear fairly early on. The first couple of days, that —
GUPTA: So not before that, though? Not before October 1st?
SEBELIUS: No, sir.
GUPTA: There was no concern at that point here in the White House or at HHS?
SEBELIUS: I think that we talked about having — testing, going forward. And if we had an ideal situation and could have built the product in, you know, a five-year period of time, we probably would have taken five years. But we didn’t have five years. And certainly Americans who rely on health coverage didn’t have five years for us to wait. We wanted to make sure we made good on this final implementation of the law. And, again, people can sign up. The call center is open for business. We’ve had 1,100,000 calls. We’ve had 19 million people visit the Web site, 500,000 accounts created. And people are shopping every day. So people are signing up and there’s help in neighborhoods around the country, that people can have a one-on-one visit with a trained navigator and figure out how to sign up. So people are able to sign up.
I wondered at the time if Sebelius’ answer left a little wiggle room. I expect Republicans on the committee will pursue this.
4. Digest media reports.
You can definitely expect that Sebelius will be asked about a CNN report yesterday that Healthcare.gov’s lead contractor warned the administrator well before the Oct. 1 launch of major problems. Read the documents.
CNBC suggests these six questions for her:
- What did you know, when did you know it, and who told you?
- Did you ever consider not launching Oct. 1?
- Why has no one been fired?
- What does all this cost?
- What contingency plans do you have?
- What are the enrollment numbers?
TPM also offers what it calls seven legitimate questions for her. And the Washington Post says that “the embattled secretary of health and human services will submit to a quintessential station of the Washington deathwatch.”
Gotta love Washington.
Podcast: Why Is Healthcare.gov So Flawed?
Healthcare.gov, the home of the federal insurance marketplace, has faced nothing but problems since it launched on Oct. 1. ProPublica’s Charlie Ornstein has chronicled the range of issues that have plagued the site, including duplicate enrollments and children reported as parents, as well as a wildly misleading price estimator tool.
How did we end up in this mess?
Ornstein joins ProPublica’s Editor-in-Chief Steve Engelberg on the podcast to discuss the many challenges Healthcare.gov has been up against since the Affordable Care Act was first passed in 2010; how, if the site’s glitches aren’t fixed soon, it could face a so-called “death spiral”; and the government’s decision to move forward with the site launch even though it knew there were problems:
“...the administration was out there loudly proclaiming, go to Healthcare.gov. It’s open for business. Sign up for coverage. Lady Gaga tweeted it...but the infrastructure to get covered wasn’t working,” Ornstein says. “They were directing millions of people to a website that was completely incapable of handling the traffic.”
You can listen to this podcast on iTunes and Stitcher. And for more on Healthcare.gov, read Ornstein’s latest reports:
- Today’s Obamacare Hearing: What You Need To Know
- Here’s Why Healthcare.gov Broke Down
- How the Feds Could Fix Their Glitchy Health Care Exchange
- Healthcare.gov’s Users Speak Out: ‘Clean This Mess Up’
- The Affordable Care Act’s Most Important Date: Not What You Think
- How the New Yorker’s Ryan Lizza Became a Mistaken Poster Boy for Obamacare
The Affordable Care Act’s Most Important Date: Not What You Think
Many people have asked when we’ll know if the Affordable Care Act is a success or failure.
Was it Oct. 1, the date of the federal health insurance marketplace’s problem-filled launch? Or will it be the end of November, when Healthcare.gov is supposed to be fixed?
Is it Dec. 15, the last day consumers can enroll for coverage that begins on Jan. 1? Or March 31 when the enrollment period for buying insurance for 2014 closes?
In my mind, there is a different date that will have far more bearing on the number of people covered under the law. It’s June 28, 2012, the date the U.S. Supreme Court ruled on the act’s constitutionality.
What most people remember about the high court’s decision is that it upheld the core of the law: an individual mandate that requires practically everyone to buy health insurance or pay a penalty.
But the most consequential part of the ruling, which got less attention at the time, gave states discretion over whether to expand their Medicaid programs for the poor.
The law originally called for each state to expand Medicaid to people making less than 138 percent of the federal poverty level (now $15,856 for a household of one or $32,499 for a household of four). But the court said states could refuse to go along and not risk losing the federal government’s contribution to their Medicaid programs.
Why is this so important? Because about half the states have refused the expansion (or haven’t approved it yet), putting Medicaid out of reach for millions of their residents. Those states include Texas, Florida and almost all of the south. Here’s a map of what each state is doing.
Via: The Advisory Board Company
We’re seeing Medicaid’s importance play out as consumers sign up for health coverage through the health insurance marketplaces. In fact, far more are enrolling in Medicaid than in private health plans. Consider this report Monday from The Wall Street Journal:
In Washington state, one of the states that operates its own exchange, 87% of the 35,528 people who had enrolled in new insurance plans from Oct. 1 to Oct. 21 were joining Medicaid plans, according to state figures. By Thursday, 21,342 Kentuckians had newly enrolled in Medicaid, or 82% of total enrollees. In New York, about 64% of the 37,030 people who have finished enrolling were in Medicaid.
Some states like Maryland, Washington and California are using aggressive outreach to get people into Medicaid, including contacting those who are already on other programs such as food stamps, said Matt Salo, executive director of the National Association of Medicaid Directors.
“When you actively go out and aggressively target people, they sign up,” he said.
It’s easy to understand why. Medicaid is free; private health plans may not be (depending on the subsidy a person qualifies for). Medicaid is relatively easy to sign up for; the private plans, not so much.
But in states that refused to expand Medicaid, millions of consumers are ineligible for this health coverage. The Kaiser Family Foundation has an interesting policy paper showing the consequences of these decisions.
Igor Volsky at Think Progress has a good roundup of this issue, as does Dan Diamond at the Advisory Board. Diamond has done a great job chronicling the states and their Medicaid expansion decisions.
For states, the decision to expand Medicaid seems like a good deal. The federal government has agreed to pick up 100 percent of the cost for the first three years, and its support will phase down to 90 percent. Governors who reject the aid say they don’t trust the federal government will keep its word; they believe health costs are unsustainable, and they don’t believe their states will have enough money to pay their share in the future.
So what’s going to happen? Health care organizations and consumer advocates are hoping that some states will reconsider and sign on for the expansion, as Ohio did last week, giving coverage to about 275,000 people. But some officials, including North Carolina’s governor, are holding firm against it.
Will that stance hold firm as millions of people in neighboring states receive coverage? If the start of Medicaid is any guide, the answer is likely no.
That said, it took 17 years for the last holdout, Arizona, to sign on. In 1982.
Read more about why HealthCare.gov broke down and four things to know about Kathleen Sebelius' Congressional testimony.
Elderly, At Risk, and Haphazardly Protected
A version of this story was co-published by "Frontline."
Workers found 82-year-old Vincenzina Pontoni submerged in a deep whirlpool bathtub. She had drowned.
Pontoni, a resident of an assisted living facility near Cleveland, wasn’t supposed to be left alone; her care chart stated that facility workers were to stand by while she was bathing “for safety.” But records show she had been unsupervised for at least an hour that day in 2010, with deadly consequences.
State law in Ohio does not require assisted living facilities to alert regulators at the Ohio Department of Health when a resident dies under questionable circumstances, so administrators at Pontoni’s facility never did. While law enforcement did an investigation – ruling the death an accident – the people actually charged with safeguarding seniors in assisted living never so much as visited the facility in response to Pontoni’s death. Indeed, the Department of Health was unaware of how Pontoni died until notified by a reporter investigating assisted living for ProPublica and “Frontline.”
When asked about Pontoni’s death, and whether the Department of Health feared other care issues had been overlooked, Tessie Pollock, a department spokeswoman, said it did not appear that any regulation had been violated by the Cleveland facility. She encouraged the families of residents in the state’s assisted living facilities to be vigilant on behalf of their loved ones.
Ohio’s hands-off approach to regulating assisted living is hardly an aberration.
Over the past two decades, assisted living has undergone a profound transformation. What began as a grassroots movement aimed at creating a humane and innovative alternative to nursing homes has become a multibillion-dollar industry that houses some 750,000 American seniors. Assisted living facilities, at least initially, were meant to provide housing, meals and help to elderly people who could no longer live on their own.
But studies show that increasing numbers of assisted living residents are seriously ill and that many suffer from dementia. The workers entrusted with their care must manage complex medication regimens, safeguard those for whom even walking to the bathroom can be dangerous, and handle people so incapacitated they can be a threat to themselves or others.
Yet an examination by ProPublica and “Frontline” found that, in many states, regulations for assisted living lag far behind this reality.
Despite the growing demands on care in assisted living, most states set the entry bar low for facility workers, requiring little in the way of education or qualifications. In Minnesota and 13 other states, administrators don’t need high school diplomas. Caregivers can be as young as 16 in Illinois. Facilities in some states, Colorado among them, are not required to have even one licensed nurse on staff.
Under most state regulatory schemes, assisted living companies are also free to decide how much staff their facilities should have. Just 14 states set staffing ratios; in Mississippi, facilities must have at least one staffer on duty for every 15 residents during daytime hours and one per 25 at night. In California, by contrast, facilities housing as many as 200 seniors need no more than two workers on the overnight shift. Neither of them is required to have any medical training. And one of them is allowed to be asleep.
Compared with nursing homes, assisted living facilities in many states receive relatively little outside monitoring. Under federal guidelines, nursing homes are supposed to be inspected at least once every 15 months. For assisted living, the interval between inspections can be five years in some states. South Carolina and five other states require no regular inspections.
In many parts of the country, assisted living operators face few consequences for even the most serious lapses in care. All states have the power to shut down troubled facilities, but they typically do so only as a last resort and after years of problems. Most states can impose fines for violations of safety standards, but they seldom carry much sting – in California, facilities routinely pay as little as $150 in cases in which the state found residents had died as a result of poor care.
While consumers can go online and compare the track records of nursing homes on a government web site, few such resources exist for assisted living. Twenty-two states still don’t post inspection records online, requiring residents to visit state offices to view them on paper or file public records requests.
ProPublica set out to compile the key rules and regulations governing assisted living in all 50 states and the District of Columbia. See what we found »
The Texas Department of Aging and Disability Services collects and posts a rich array of data on assisted living facilities. But after five years, the records are destroyed, making it tough for the public or regulators themselves to identify long-term patterns and problems.
The jumble of state laws governing assisted living reflects, in part, the industry’s efforts to fight off tougher regulation.
It has done serious combat in Washington to ward off federal oversight, insisting that states are best-suited to oversee the varied senior living environments that co-exist under the assisted living label. Simultaneously, the industry has conducted highly effective campaigns at the state level, from Iowa to Florida to Pennsylvania, to keep rules regarding training and inspection, staffing levels and fines, to a minimum.
"We absolutely support the idea of regulation," said Mark Parkinson, a former governor of Kansas who is now the president of the American Health Care Association and the National Center for Assisted Living, an industry trade group. "The issue then becomes at what level do you regulate it? Do you regulate at the federal level? Or you do at the state level? And our position has been that it’s better to do it at the state level.”
Parkinson and others say the ability of individual states to craft their own oversight policies makes sense given the great variety of assisted living settings – from rooms in private homes to 200-bed facilities run by national chains. And he says the absence of strict federal involvement allows consumers to have a greater voice in how assisted living is regulated in their local communities.
All of that, Parkinson said, helps explain why industry research shows a high level of satisfaction with assisted living care.
"Ninety-one percent of the country that has a mom or dad in assisted living facility would recommend that facility to someone else,” he said. “That’s a pretty important data point.”
To many -- advocates for the elderly, researchers, lawyers for victim families -- the hodgepodge of state rules present a real peril, one that is only likely to grow as the population in assisted living becomes more fragile. Some have called for federal regulation of assisted living similar to what exists for nursing homes.
“If you look at the history of assisted living, it sort of emerged like a hernia. It pushed through a soft spot in oversight,” said Richard Mollot, executive director of the Long Term Care Community Coalition, a national advocacy organization based in New York.
Federal rules would be no panacea, Mollot and others acknowledge – there are still plenty of problems with nursing home care. The federal government has exercised more authority over nursing homes because it pays many of the bills, chiefly through Medicare. Most residents in assisted living pay out of their own pockets.
Still, proponents say, federal regulation could at least make care standards more consistent nationwide and aid in the collection of basic information about assisted living that does not exist today.
Leaders in the assisted living industry deride the idea that federal oversight would improve residents’ circumstances and say that allowing standards to vary state to state allows for more flexibility and options in assisted living settings. They say they have adapted to the more serious needs of their residents, but continue to insist that assisted living has not become an actual health care enterprise, and does not need to be regulated like one.
“We think that the regulations are working well in each of the states,” said Richard Grimes, president of the Assisted Living Federation of America, a prominent trade group.
Chapter 1: In California, A Major System’s Considerable Failure
There are nearly 8,000 assisted living facilities in California today, roughly 25 percent more than there were a decade ago. But as the number of residents in these settings has swelled, the state’s system for ensuring their welfare has been slow to adapt. And by some measures, it’s been in retreat.
The Department of Social Services admits that it has failed to adopt new rules and requirements to better oversee the increasing percentage of assisted living residents who need substantial medical care. The state has also relaxed the requirements for facilities to show they can meet certain care and safety standards prior to admitting bedridden residents and those suffering from memory loss.
Since 2001, the department has cut its staff of inspectors by nearly 9 percent, and lengthened the timetable for how often facilities must be inspected from every year to every five years.
“There’s no question oversight is worse now than it was 10 years ago,” said Pat McGinnis, executive director of California Advocates for Nursing Home Reform, a nonprofit organization. “The current system is a recipe for neglect and abuse. Care standards are almost meaningless. Facilities can flout the law without facing serious consequences.”
An examination of California’s regulatory system – inspection filings, investigation reports, lawsuits and data from the state ombudsman’s office -- reveals the consequences of the cutbacks: Routine inspections are sometimes delayed and death investigations can take months to complete; even facilities with track records of repeated violations tend to receive slap-on-the-wrist punishments.
Irving Weinberg, 98, died in 2010 when his motorized wheelchair tumbled down a staircase at an Escondido, Calif., facility operated by Emeritus Senior Living, the country’s largest assisted living company and the dominant chain in California. It took regulators eight months to complete an investigation. When the state finally cited the facility for not having enough staff in place to prevent the fatal accident, the company was fined $150.
“We were not at fault for this extremely unfortunate and unforeseeable accident,” Emeritus stated in response to written questions. “There is no evidence that Emeritus at Escondido caused or contributed to this tragic incident in any way.”
A review of state inspection reports revealed that the state had cited the same facility just months before Weinberg’s death for failing to provide adequate medical attention for a resident who died of sepsis, a shock-like condition brought on by severe infection. In that case, too, the facility was fined $150.
Emeritus said the resident “was taken care of appropriately.”
“A hundred and fifty dollars for someone’s life?” asked Leslie Weinberg, Irving’s daughter-in-law. “I don’t think that is adequate.” The Weinberg family sued and settled with the facility’s owner.
In 2012, a worker at Gold Age Villa, a small assisted living facility in Placer County, picked wild mushrooms and put them in gravy she fed to five seniors. Unfortunately, the fungi were toxic. Four residents eventually died. The incident generated headlines around the country. The government response, however, was largely overlooked: The state barred the caregiver from working in the industry, but did not revoke the facility’s license or fine its owner.
The owner of Gold Age Villa did not respond to requests for comment.
In 2011 an inspector concluded that workers at an Attitudes Senior Care facility, in Del Mar, had “neglected” a bed-ridden resident, causing the person to suffer from “severe malnutrition” and “numerous” pressure ulcers, or bed sores, including a wound that eroded the flesh all the way down to the coccyx bone. State officials handed out a $150 fine and crafted a plan to bring Attitudes into compliance with California law. Records show the facility – part of a modest three-facility operation -- had been put on just such a plan a few years earlier, in 2008, when another resident “did not receive the required care.”
Karen Kelly, president of Attitudes Senior Care, said in a brief interview that she did not want to discuss the case, saying, when asked about the state’s sanctions, “The department is the department.”
“We have been providing excellent care for many years as any of our residents and family members can attest,” Kelly said in an email.
Pat Leary, chief deputy director of the Department of Social Services, said in an interview that fines alone were not a meaningful curb on facilities with dangerous gaps in care. But she said the department was armed with the power to shut facilities permanently, or to scrutinize them more closely by placing them on probationary status.
However, Leary couldn’t say how frequently the state was using these enforcement tools. Leary said even determining how many facilities, at any given time, had been deemed “out of compliance” with state regulations was “a hard statistic to get.”
Leary said improving oversight was imperative and that the department is working to make inspections more targeted, aiming to put inspectors inside problem facilities with greater regularity.
“How can we assure residents are safe and how do we know what’s going on? That’s the challenge,” Leary said. “We know we have a lot of catching up to do.”
But it’s not likely to be easy, for, as Leary admits, the department is trying to do more with less. Last year, the state broadened the workload for inspectors, tasking them with inspecting facilities for the physically and developmentally disabled in addition to assisted living facilities. When they are alerted to cases in which assisted living residents might be at risk of harm, they can take as long as 10 days to start an investigation.
Even then, their inquiries are often perfunctory, said Chris Murphy, whose group, Consumer Advocates for RCFE Reform, tracks deaths, neglect and mistreatment in Southern California assisted living facilities.
Murphy, who has a master’s degree in gerontology, said she started her organization after witnessing problems at a facility where her mother lived. She said she has only become more disturbed with California’s lack of oversight over time.
“Nobody’s accountable,” she said. “The citations are meaningless. It’s a charade, in my view.”
In 2007, workers at an Emeritus assisted living facility in Oceanside, Calif., found Irene Elliott, 98, lying in the dirt beneath her window, cold to the touch. It appeared she had jumped or fallen. The drop from her second floor window had fractured her pelvis, two vertebrae, left elbow and multiple ribs.
State investigators were called to look into the death. After a one-day probe, an inspector decided that the facility was in “substantial compliance” with the law. The facility, which insisted it had done nothing wrong, was not cited by the state.
According to court documents and the Medical Examiner’s report, however, Elliott, who suffered from dementia, had been exhibiting increasingly erratic behavior. Her family contends that the facility was aware of her issues, but didn’t take action to prevent the fatal incident from occurring. Despite her deteriorating mental condition, Elliott wasn’t moved into the building’s memory care wing, a secure space for people with Alzheimer’s and dementia.
In court papers, the company maintained it had responded promptly to the changes in Elliott’s condition and said there was “no basis” for transferring Elliott to the memory care wing.
Elliott’s family sued the company that owned the facility, reaching a settlement in 2008.
One of the central challenges for families searching for appropriate assisted living facilities in California is the dearth of information about their regulatory histories.
The state doesn’t post inspection reports or complaint investigations online.
In 2009, University of California-San Francisco professor Bob Newcomer received a roughly $600,000 grant to overhaul the Department of Social Services’ information technology systems. The goal was to improve how the agency collected data on assisted living, and to make that data more accessible to the public.
Newcomer and his team designed a new coding language that would make it easier for the department to pinpoint the most troubled facilities and track the most persistent types of violations across the state. The new system would also allow the department to post inspection results online, giving the public instant access to crucial information about facilities.
Today, some four years later, the department has yet to implement the system, making it difficult for the state to analyze even the most basic data.
“It’s a complete embarrassment,” said Newcomer, now a professor emeritus at UCSF.
Leary, who was appointed to her position in 2011, said she was unaware of Newcomer’s efforts and does not know why they stalled. She said she supports updating the department’s information systems.
“We have to have a system that’s actually in real time, and up to date, regarding a facility’s status,” she said. “Currently, we can’t do that.”
As assisted living facilities take in increasing numbers of sicker, frailer residents, Leary also acknowledged that her agency needs to do more to set and enforce staffing requirements.
State officials say they want to draw upon the wisdom of families, the industry and experts in senior care in determining what needs to be done. But to date, there’s little evidence that such a conversation has begun, and as a result officials have not proposed any significant legislative changes to enhance regulatory oversight.
Advocates for the elderly are frustrated by the lack of action, and furious about some of the pullback.
Murphy is proposing a radical revamping of California’s oversight apparatus. The first step: To place regulation of assisted living with the state Department of Public Health, which monitors hospitals and other medical facilities.
The California Advocates for Nursing Home Reform, in a soon to be published paper, are calling for wholesale reforms.
“The only thing that has ever worked with the department is lawsuits,” said McGinnis, who heads the advocacy group. “And that’s a hell of a way to make public policy.”
Chapter 2: “The Industry is Smart”
A decade ago, the assisted living industry was exploding in Iowa much as it was in California. But problems had been emerging, and to many it became clear the state’s Department of Elder Affairs was not up to the task of overseeing the care being delivered to thousands of seniors.
The Des Moines Register reported in 2002 that caregivers at some facilities had physically abused residents. At one, reports showed, an incontinent resident was left to wear the same adult diaper for five days. The paper also documented that the Elder Affairs agency had not imposed penalties on any assisted living facilities for violating standards of care, and that it had sanitized inspection reports to hide deficiencies before releasing them to the public.
Two successive governors, Tom Vilsack and Chet Culver, moved to get more serious about regulating the industry. In 2002, Vilsack shifted responsibility for overseeing assisted living to the Department of Inspections and Appeals, which already oversaw nursing homes and hospitals in the state. Culver, who took over as governor in 2007, appointed a lawyer who had once worked in the attorney general’s office to serve as the agency’s director.
The lawyer, Dean Lerner, was no stranger to taking on influential industries, having gone after petroleum companies for the cost of cleaning up underground gasoline leaks.
“I knew what I was getting into,” Lerner, in a recent interview, said of his dealings with the assisted living industry. “I knew that the industry was very powerful politically in the state.”
If forewarned, Lerner said he still was not fully prepared for what became four years of grueling confrontation.
During his tenure, Lerner said he tried to both enhance the regulations themselves and embolden enforcement of them.
He had some successes. He helped persuade legislators to close a loophole that delayed the posting of state inspection reports for months, even years, while facility operators appealed the findings. He took swift legal action against an assisted living company for false advertising and launched an investigation into consumer fraud in the industry.
But some of his efforts ran into stiff resistance. For instance, proposed legislation aimed at preventing elected officials, industry representatives and others from interfering with investigations of assisted living and other senior homes went nowhere.
The battles left Lerner exhausted and fatalistic.
“In every meeting I ever had with them, they would fight tooth and nail against any enhanced regulatory oversight or any public disclosure,” Lerner said of the industry and its lobbyists. “Their goal in every meeting? More money, less regulation, minimal public disclosure.”
Today, the central regulations governing assisted living in Iowa are much as they were when Lerner took over. The state is required to conduct inspections of assisted living facilities every two years and can assess civil penalties of up to $10,000 for neglect or abuse that results in fatal injuries. Iowa also requires assisted living facilities to be overseen by a registered nurse and that caregivers working with people with Alzheimer’s and dementia receive a minimum of eight hours of specialized training within 30 days of employment.
Even though the rules are more demanding than those of many other states, Lerner and other advocates say they remain inadequate to meet the growing challenges in assisted living.
In a statement, the Iowa Health Care Association, the trade group that represents assisted living companies, said Lerner was biased against the industry, exaggerating its problems and turning a deaf ear to its legitimate needs and concerns. The association said it has always welcomed responsible oversight, and has worked in good faith with legislators and others to define and enact practical and effective regulation.
But others, and not just Lerner, say the industry has worked hard to keep regulations superficial. Over the years, nursing homes and assisted living facilities have banded together, impressing upon lawmakers their status among the state’s largest employers. Too much regulation, they have made clear, could drive those jobs out of the state. Today, more than 50,000 people are employed in Iowa in what are known as long-term care facilities.
“The industry is smart,” said Brian Kaskie, associate director of the University of Iowa Center on Aging, who has closely followed long-term care issues in the state. “If you look at campaign contributions, they’re not huge. They keep a low profile. They don’t spread a lot of cash around. When they do, it’s very targeted. They spend as little possible in order to have the capacity to stop [tough regulation]. They frame it as, ‘We’re your city‘s largest employer.’ In Iowa, long-term care is a $2 billion industry.”
James C. Larew served as general counsel to Culver, and said he heard often from the industry about its unhappiness with tough regulation.
“I didn’t see a more powerful interest group in Iowa than the nursing home and assisted living industry,” Larew said. “They are very effective and there’s simply no countervailing weight on the other side.”
The Iowa Health Care Association rejects any suggestion that it has exerted undue influence on state legislators, saying the notion that votes regarding nursing home or assisted living regulation can be bought is “offensive.”
“We are proud to be among the many stakeholders who offer input on long-term care issues to policymakers,” the association’s statement said.
One former legislator thinks otherwise.
“Our state has sold out to the assisted living and nursing home industry,” said John Tapscott, a former state representative who now serves as a volunteer advocate for the elderly. “Everything introduced that is seen as positive for senior citizens is beaten back because the lobbyists are there with open pocket. And the people who suffer the most are those who have the least voice.”
Similar fights over regulation have played out in other states, with similar results.
In 2011, a Florida task force proposed higher standards for licensing and inspecting assisted living facilities, but the measures died in the state legislature.
New York spent four years crafting a battery of enhanced standards and enforcement tools. But in 2008, just as the measures were going into effect, the industry successfully sued to void some of the more rigorous regulations, such as requiring a nurse to be on staff if a facility was providing dementia care, and mandating that there be emergency call systems in resident bedrooms. A state judge ruled that the measures were unnecessary and too expensive.
“On the one hand, they’re telling consumers, ‘We’ll take care of you; You’ll be safe; We have trained staff and dementia care,’” Mollot, the executive director of New York’s Long Term Care Community Coalition, said of the industry. “With policymakers, they say, ‘We’re not a nursing home. We don’t need that kind of oversight or those kinds of requirements.’”
Industry executives in New York said they support exacting regulation, and that their successful court fight was only to eliminate what they regarded as needlessly onerous demands.
In Iowa in 2010, Lerner’s efforts to oversee assisted living became an issue in the race for governor. On the campaign trail, Republican candidate Terry Branstad criticized Lerner’s tactics and promised to replace him with someone who would work in a more “collaborative” and “cooperative” manner with the industry. After winning the election, Branstad named Rod Roberts, a former state legislator, to replace Lerner.
In a written statement, Roberts said politics and special interests had not influenced his ability to enforce assisted living regulations. Roberts said his department has an “open door policy with constituents, stakeholders, and all interested parties.”
Roberts also maintains that enforcement has been vigilant during his tenure.
“Incidents are down, investigation times remain constant, and department citations reflect a robust enforcement effort” Roberts wrote in a 2011 opinion article in the Des Moines Register. “What has changed, however, is the attitude and approach we take with our regulated facilities. Mutual respect has replaced ‘gotcha,’ and all those in our care facilities are better served as a result.”
Though out of office, Lerner was nonetheless drawn into the latest development in regulating assisted living, voicing strong opposition to an industry-supported piece of legislation this year that established a new process for appealing assisted living and nursing home violations. The new rules require outside attorneys – not the Department of Inspections and Appeals – to hear appeals.
Lerner testified against the legislation.
“This bill’s passage and the rulemaking represents further evidence of the industry’s clout to affect the regulatory process and frequently influence an agency charged with protecting the health, safety, and welfare of Iowans,” Lerner said at a public hearing.
But in the end, he lost. Again.
The legislation is not yet in force, but for Lerner it is another sign of the industry’s grip on the state.
“I absolutely, positively believe that the federal government has a role and needs to step up to the plate.”
Chapter 3: In Washington, a Lack of Will
National lawmakers have taken up the issue of assisted living several times. But those hoping Congress would go ahead and intervene have been disappointed.
In 2001, the Senate Special Committee on Aging was concerned enough to hold formal hearings, and Hillary Clinton appeared before her colleagues to articulate her worries about the inconsistent quality of care being offered around the country.
“Do consumers receive enough information to make wise choices?” Clinton, then a newly minted senator from New York, asked at the time. “I think we all understand that they don’t. What assurances do consumers have that the care will be adequate?”
The senators saw to it that a working group of industry representatives, advocates, experts and regulators was formed and charged with making recommendations for how conditions in assisted living facilities could be made safer.
A year and a half later, the group produced more than 100 recommendations. Virtually nothing got done. Congress, for example, did not allocate money to sufficiently fund ombudsman programs in the states, offices that act as advocates for those in assisted living and other long term care facilities.
“It was preposterous,” recalled Toby Edelman, an attorney with the Center for Medicare Advocacy who participated in the work group. “There wasn’t even any agreement on what assisted living was. We couldn’t agree on whether it was intermediate step for people before they went to nursing homes or whether it was an alternative to a nursing home.”
A decade later, after the Miami Herald exposed widespread abuse in Florida facilities, the issue was back in front of Congress. Concern was again expressed. And with it, some frustration about what hadn’t happened.
Florida Sen. Bill Nelson noted at a 2011 hearing of the Senate Special Committee on Aging that it wasn’t just his home state that had problems. In Pennsylvania, emergency room workers removed 50 maggots from a resident’s open facial wound, he said. In New York, a senior died after caretakers mistakenly gave her someone else’s medication. In Virginia, police responded to a 911 call and found one resident lying on the floor calling for help while another was struggling with a catheter.
“So, we’re going to have to ask ourselves in this hearing if we’ve been talking about the same problems for over 10 years, why are we still talking about it?” Nelson said. “What are the solutions?”
The committee itself ultimately offered no solutions.
To date, the federal government has stayed out of regulating assisted living. This is as the industry wants it.
“I know there are some very sincere people that would like to see federal regulation of assisted living,” said Richard Grimes, president of the Assisted Living Federation of America, the industry group. “They would like to have a very simple definition of assisted living that everyone could live with that, that every community would look the same. And there would be one set of regulations to govern them. But that’s just antithetical to what the philosophy of what assisted living is all about.”
Assisted living, the industry maintains, should be about flexibility: the ability to tailor, state by state, community by community, the kinds of residential settings offered and the levels of care promised. Assisted living facilities can run the gamut from private homes converted to care for a handful of residents to more institutional facilities as large or larger than traditional nursing homes.
“It is about choice, and I just believe that choice is one of the biggest components to quality of life there is,” said Granger Cobb, the chief executive officer of Emeritus.
If the federal government assumed responsibility, Cobb said, “they would have to approach it like they did skilled nursing and put everyone into the same box and say these are now the regulations. One size fits all. Everybody has got to do it this way.”
Some advocates for the elderly say such claims are misleading. Federal rules for nursing homes take into account that not all homes are identical, they say.
“This is a false choice,” said Eric M. Carlson of the National Senior Citizens Law Center. “Establishing basic consumer rights, and establishing some common-sense requirements for ‘assisted living,’ does not mean that operators are put into a one-size-fits-all box.”
Still, over the years industry leaders have pressed this argument, turning out in force to make it in person in Washington.
Last month, for instance, more than 140 industry executives flew to Washington to meet with some 300 members of Congress and their staffs.
Their message:
“We’re doing a great job,” said Grimes, whose group spearheaded the effort. “Assisted living is working. And we’re very pleased about the future.”
Some regulators with experience at the state level agree that federal intervention could be a mixed blessing. State workers, their ranks already thinned by budget cuts, could wind up overwhelmed if asked to monitor assisted living facilities like nursing homes, even if the mandate comes with some financial aid from Washington.
“I’m not disparaging of nursing home regulation,” said Rick E. Harris, a former regulatory official in Alabama who served on the national work group a decade ago. “It’s not been a bad thing. It’s been reasonably successful in improving quality of care in nursing homes. But state regulatory agencies have to have some flexibility because you only have so many resources.”
Whatever the impact of the industry’s lobbying in Washington, the lack of involvement by the federal government in overseeing assisted living is in many ways, not surprisingly, about money.
“A lot of this has to do with how this industry evolved,” said Don Redfoot, a senior strategic policy advisor with AARP. “The high percentage of nursing homes receiving federal subsidies meant that federal government had a bigger obligation to step in and regulate. Assisted living evolved not out of a federal program, but rather largely as a private pay industry.”
Barbara Edwards, director of Disabled & Elderly Health Programs for the Centers for Medicare & Medicaid Services (CMS), told lawmakers at the 2011 hearing in Washington that her agency has not taken a stance on the issue of whether the federal government should take a more active role in regulating assisted living. She noted that CMS does require states to report on their systems of oversight and asks states to survey whether residents are getting appropriate care.
Those who favor a greater role for federal regulators see several ways they could help: by requiring minimum standards for staffing, resident rights, administration, and medication management; by stepping up enforcement for false advertising and consumer fraud; by enhancing state inspection and enforcement programs; and even by funding research on quality standards and their impact on outcomes in assisted living.
Some think federal involvement of some kind is just a matter of time. While most people in assisted living pay for their own care, the amount of federal money going into the industry has been ticking upwards. Today Medicaid helps to pay the bills for nearly 20 percent of assisted living residents nationwide, according to a 2010 survey by the U.S. Department of Health and Human Services.
"We are at a point where we need federal regulation of assisted living," said Lori Smetanka, director of the National Long-Term Care Ombudsman Resource Center. "First, because of the increasing frailty of people in assisted living. Second, because of the increasing federal money going into assisted living. As more federal dollars go for assisted living services, it's only reasonable to expect federal standards to go along with that.”
ProPublica's Hanna Trudo contributed to this story.
Today’s Obamacare Hearing: What You Need To Know
Last week, the House Energy and Commerce committee held the first of what is likely to be many hearings on how the rollout of Healthcare.gov went so wrong. Today, the House Ways and Means Committee takes its turn with scheduled testimony from Marilyn Tavenner, administrator of the Centers for Medicare and Medicaid Services, which runs Healthcare.gov.
Here’s what you need to know:
1 Watch the hearing here:
Live streaming video by Ustream
2 Read the committee’s background.
3 Look at Tavenner’s testimony from August before the House Energy and Commerce Committee. At the time, she said, “CMS has already completed the majority of the development of the services required to support open enrollment beginning on October 1, 2013, for coverage starting January 1, 2014. CMS has been conducting systems tests since October 2012 and will complete end-to-end testing before open enrollment begins.”
How will she respond to questions about that now?
4 See media previews of today’s hearing.
Sarah Kliff at Wonkblog writes:
Marilyn Tavenner is head of a $1 trillion-a-year agency that provides Medicare and Medicaid coverage to 90 million Americans — and is overseeing the implementation of President Obama’s health-care law.
As recently as late September, she predicted that the Affordable Care Act would have a smooth launch on Oct. 1.
“I talked to Marilyn a lot before the rollout, and I think she was surprised by how it’s gone,” said Thomas Scully, a Medicare administrator under President George W. Bush and a longtime colleague of Tavenner’s. “She seemed pretty confident it would work.”
On Tuesday, Tavenner will be the first Obama administration official to testify before Congress about the efforts of her agency — the Centers for Medicare and Medcaid Services — to implement the 2010 law. The agency recently hired contractor Quality Software Services Inc. to be the general manager for the effort to fix the troubled Web site.
Paige Winfield Cunningham and Jennifer Haberkorn at Politico write:
Eight pages of prepared testimony by CMS Administrator Marilyn Tavenner shed no new light on what went wrong with HealthCare.gov or on the internal decision-making surrounding its construction, but rather her testimony restates the administration’s plans for fixing it.
Tavenner is scheduled to testify Tuesday before the House Ways and Means Committee about the website launch. According to a copy of her testimony obtained by POLITICO, a “subset” of contractors that built the website haven’t met expectations.
To address the website’s ongoing challenges, the agency has updated it several times with new code including bug fixes. It’s also adding more capacity, fixing signup and log-in problems, and trying to “stabilize” those parts of the website, allowing for the removal of the virtual “waiting room,” the testimony says.
And Sheryl Gay Stolberg at The New York Times writes:
Ten days before HealthCare.gov opened for business, Marilyn Tavenner, the obscure federal bureaucrat whose agency oversaw the creation of the troubled online insurance marketplace, had a bad omen. It was a Sunday, and her mobile device was on the fritz, forcing her to go into the office.
“It reminded me that I can still be brought to my knees by a malfunctioning BlackBerry,” she joked in late September, recounting her technology woes to a group of insurance executives.
Nobody at the Centers for Medicare and Medicaid Services, the agency Ms. Tavenner runs, is joking now.
Looking Back: Important Coverage of Sandy and its Aftermath
It's been one year since Hurricane Sandy battered the Eastern Seaboard. We reported then how hospitals struggled to care for patients with failing generators, and how deregulation of telecom companies left many Sandy survivors not knowing where to find a signal.
But 12 months later, the struggle is not yet over for the communities hit hardest by the hurricane. Federal aid has been mired in bureaucratic hangups, and the Federal Emergency Management Agency continues to fund risky construction in flood-prone areas. At least 200 New Yorkers are still homeless due to the storm. Here's a look back at our reporting on the storm and its aftermath, as well as great coverage elsewhere.
Did we forget any key reads? Tweet them with the hashtag #SandyReads.
Tweet #SandyReadsSEC Files Charges in Magnetar Deal
The Securities and Exchange Commission has charged an asset manager with fraud for its role in one of the most notorious groups of mortgage securities deals behind the financial crisis.
Harding Advisory and Wing Chau, the head of the firm, failed to disclose that a hedge fund, Magnetar Capital, had a significant role in selecting the securities that went into one of its collateralized debt obligations, or CDOs, the agency alleges. CDOs were bundles of mortgage securities that helped fuel the financial meltdown.
As ProPublica detailed in 2010, Magnetar worked with investment banks to build CDOs that the hedge fund also bet against. Magnetar would buy the riskiest part of the CDO, which gave it influence in picking which bonds would be included in the CDO. In turn, the hedge fund pushed riskier bonds that would make the investment more likely to fail.
Harding was a collateral manager, which was supposed to act independently and in the interests of the deal. In selling their CDOs, Wall Street investment banks relied on investor expectations that collateral managers would act independently. As ProPublica wrote in 2010, that independence was often compromised.
In its complaint, the SEC alleges that Harding and Merrill Lynch gave Magnetar an undisclosed veto over the assets that went into a $1.5 billion deal called Octans I, which closed in September 2006. Octans 1, which was arranged and sold by Merrill Lynch, failed in April 2008, costing investors $1.1 billion. Harding received $4.5 million in fees for the deal.
The SEC alleges that Harding’s disclosures were “materially misleading” and its behavior violated securities laws. The agency alleges that Harding and Chau “knew or at least recklessly disregarded” their standards to accommodate trades requested by Magnetar. Chau “understood that, because Magnetar stood to profit if the CDOs failed to perform, Magnetar’s interests were not aligned with those of potential investors in the debt tranches of Octans I,” the complaint says.
Harding put assets into Octans that it would not have if Magnetar hadn’t pushed them, the SEC complaint says. A Harding analyst wrote in an email, “we had to pick the lesser of evils” at Magnetar’s insistence.
Chau did additional favors for Merrill Lynch and Magnetar, to the ultimate detriment of investors in the CDOs his firm managed. At one point, Chau agreed to purchase bonds from another Merrill Lynch/Magnetar deal that it was managing, called Norma. Chau indicated he was reluctant to buy them.
A Magnetar representative chided him in an email saying “Remember who was there for u when u were a little guy.” Chau later emailed the Merrill executive, “I never forget my true friends.” He placed the bonds in other Harding-managed CDOs.
Over the next year, Harding managed four more CDOs arranged by Merrill Lynch, as well as three other Magnetar deals.
Wing Chau was prominently featured in Michael Lewis’s bestseller, “The Big Short.” Chau later sued Lewis, alleging the book defamed him. Lewis prevailed in the suit earlier this year.
Harding’s lawyer Steven Molo did not return a call seeking comment. Through a spokesman, Magnetar declined to comment.
There have been a series of settlements related to Magnetar CDOs. Previously, the SEC brought charges against another CDO manager for its role in another Magnetar deal, but eventually dropped them. The SEC has not filed charges against Magnetar over its activities.
The latest case will go before an administrative law judge who is required to rule within 300 days. If the SEC wins, the agency may demand the disgorgement of profits, civil penalties and seek to ban Chau from the securities business.
Harding continues to serve as collateral managerfor nine CDOs with total assets of approximately $1 billion.
Must-reads of the week
Science writing harassment underscores freelancer instability
A concrete example of journalistic success
Drone Makers Gather to Defend Their Much-Maligned Machines
“I have some d-word difficulty,” said Michael Toscano, president and CEO of the Association for Unmanned Vehicle Systems International, a trade group for makers and enthusiasts of robots of air, land and sea.
The d-word, of course, is drones.
“Just when I say that word, ‘drrrrone,’” he intoned, waving his hands, “it has a negative connotation. Drone bees: they’re not smart, they just follow orders, they do things autonomously, and they die. When you think of a drone it’s just that, it does one thing and it blasts things out of the air.”
Toscano and I spoke over lunch at the Drones and Aerial Robotics Conference at New York University last weekend. Why was “drones” in the name? For one, it’s an attention grabber. For another, DARC is a “cool acronym,” said an organizer, even if it doesn’t help dispel the spooky associations that give Toscano a headache.
The conference was one part industry showcase, one part academic gathering, and one part workshop, reflecting the various camps of drone defenders and disparagers. Machines whirred around a stage in a demonstration, and their makers showed off a stream of videos of mountaintops, biking stunts, and cityscapes set to thumping music.
Far beyond their military uses, drones could pollinate crops, help firefighters – even accompany “a family on vacation in Hawaii,” said Colin Guinn, CEO of a company that makes drones for photography.
“There’s a reason we make the Phantom white, and not black. It’s not creepy. Look how cute it is!” said Guinn, referring to the small drone hovering at his side, flashing lights to charm its audience. (A researcher from Harvard arguably failed the creepy test, explaining to the audience what to consider “if you want to build a swarm of robotic bees.”)
The tech geeks, though, were almost outnumbered by those of another stripe: philosophers, lawyers, and critics who propose that drones are “a different ontological category,” of “social machines,” as Ryan Calo, a law professor at the University of Washington, put it.
I asked Patrick Egan, President of the Silicon Valley chapter of Toscano’s group and editor at an industry blog, if drone manufacturers lay awake at night contemplating the ethics of technology, the brave new world that their products represent?
“The hyperbole is out of control,” he said. “It is transformative technology, but not in the way people think.”
The conference brought out some “different perspectives,” said Egan, who also does consulting for the military. “I’m on this panel with a women’s studies professor. She wants to say I’m a Randian. I don’t even get that. Hey, I’ve read a little Ayn Rand; right now I’m reading Naked Lunch! It wasn’t the industry that inspired me to do that.”
The U.S. has virtually no commercial civilian drone market, as the Federal Aviation Administration has been slow to approve the widespread use of drones. In the past year, the public has increasingly pushed back against the drone war overseas and surveillance at home. ProPublica has covered the secrecy that surrounds the administration’s drone war, from signature strikes to civilian casualties. The lack of transparency (the government still won’t release documents related to its targeted killing program) has helped contribute to wariness about the pilotless craft.
But industry line at the conference was that drones are merely a technological platform, with a range of possibilities. They don’t spy, or kill; the people ordering them around do.
A panel on “life under drones” in Pakistan and Afghanistan turned tense when the presenters said they couldn't show images of drone victims. (The organizers said it was a technical issue.)
“I don’t understand the hostility,” one young engineer said in reaction.
Toscano hates that critiques of U.S. airstrikes zero in on drones. “It’s not a drone strike unless they physically fly the aircraft into whatever the target is. It is an airstrike because it launches a Hellfire missile or a weapon.”
Journalists in Yemen have made the same point about media using “drone” as a shorthand for U.S. military action in that country. But Toscano – who spent years involved in research and development at the Pentagon – also defends the use of military drones: “If they fly manned systems, some of them could be shot down. Would you want those pilots to be shot down?”
Domestic, unarmed drones were also scapegoats for the public’s concerns about privacy, he said. Other, more common technologies have already eroded privacy. The public lost privacy via “cellphones, they lost it on GPS, they lost it on the Internet. They can’t get that genie back in the bottle.” The difference with drones is that “we don’t have these systems flying.”
John Kaag, a philosopher at University of Massachusetts Lowell, had asked the audience at his lecture to stare into the eyes of the person next to them while he counted out five awkward seconds, to feel “the human” concern with surveillance. He advised the drone industry, “Make people know that you feel that.” Humans “are responsible, drones are not responsible.”
Toscano said he was fine with staring at the man beside him. “I’m an extrovert! The only thing I said to the guy is, ‘I don’t mind this at all but if you were a woman I’d probably enjoy it more.’”
And what about the concerns – both ethical and practical -- that autonomous machines take humans out of the equation in novel and dangerous ways?
Cars already do a lot of things autonomously, Toscano offered. Car crashes kill thousands every year, but we consider the technology indispensable to modern life.
“If Martians came down to earth and said we will cure all of cancer on the globe, and for doing it, you have to give me 100,000 of your people for me to cannibalize, to eat, would we do the deal? Most people would say no. Our society does not believe that cannibalism is acceptable.”
“Right now, in human nature, it’s unacceptable for a machine to kill a human being,” he said.
That’s why people are uncomfortable with driverless cars or drones, Toscano said. He’s confident the “risk acceptance” will change, and that fears about the technology will become as quaint as 19th-century concerns about elevators.
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