Weekly Pulse: Czar 44, Where Are You?

Lindsay E. Beyerstein

The Obama administration may be about to pull the plug on the "health czar" position. What does this mean for health care reform?

The Obama administration may be about to pull the plug on the health
czar. The position has gone unfilled since Obama’s appointee-apparent,
former Sen. Tom Daschle, withdrew his name from consideration for both
czar and Secretary of Health and Human Services (HHS) in early
February. Several serious candidates are emerging in the unofficial
race to lead HHS, but there’s no corresponding shortlist for health
czar.

The czar and his Office of Health Reform were initially touted as
proof that Obama was really serious about shepherding a health reform
package through Congress. But the Obama team may ultimately decide that
the Office of Health Reform is an obstacle instead of an asset without
Daschle and ditch it altogether.

As Erza Klein explains in the American Prospect, the position was created especially for Daschle and any other candidate might be worse than nothing as far as passing a healthcare reform package goes. Steve Benen of the Washington Monthly agrees, and says that nixing the health czar doesn’t necessarily indicate that the Obama administration is any less committed to healthcare reform.

The purpose of the health czar was to create a single emissary to
represent President Obama’s healthcare agenda to Congress. When the
Clintons tried to reform healthcare in 1993, they discovered that
various powerful administration officials were claiming to speak for
the president.

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The health czar was supposed to prevent future confusion as the
president’s spokesperson. Many senior healthcare officials are already
close to Obama and a similar situation could arise. Daschle would have
been a credible health czar because he’s closer to the president than
any of them, and a former congressional heavyweight to boot. Gov. Kathleen Sebelius
is a front-runner for HHS secretary and she has a very good
relationship with Obama. But Gov. Sebelius is a Washington outsider who
has never served in the U.S. Congress, which might make her a less
compelling candidate for czar.

Ezra Klein, linked above, argues that if nobody can fill Daschle’s
shoes, appointing a less compelling czar might just add to the din of
executive branch officials vying for the attention of key Congressional
leaders.

Maybe it’s a good idea to send as many Obama health officials to
Congress as possible. If nothing else, they might cut into time the
reps are currently spending with health insurance industry lobbyists, as Talking Points Memo reports.

Speaking of contenders for Secretary of Health and Human Services, Gov. Howard Dean recently published an article on AlterNet
defending Obama’s comparative effectiveness research (CER) agenda
against right wing critics like Rush Limbaugh. Dean draws on his
experience as a doctor and a healthcare policy-maker to argue that CER
is a way to put more scientific evidence in the hands of doctors, so
they can choose the very best treatment for the money. Right wingers
don’t like the idea. They’re literally afraid that if science
determines that a treatment is bogus, the government will stop paying
for it. Right wingers calls this “rationing.” Taxpayers might call it
evidence-based policy. Last we checked, Medicare and Medicaid were not
faith-based programs.

As Dean points out, the CER to be funded by the new economic
stimulus bill is officially for doctors, not legislators. “Mr. Limbaugh
and his cohorts would have you believe that this research will be used
to deny needed care to your great Aunt May and be run by the politburo.
But the Bill passed by Congress states right up front that the
Government can not make coverage decisions based on this research,”
Dean wrote. Realistically, though, that’s kind of a hollow assurance.
Once the research is done, there’s no way to stop legislators from
using publicly available research findings to make healthcare decisions.

In another corner of the healthcare reform-o-sphere, Katrina vanden
Heuvel says that time is right to reform New York’s draconian Rockefeller Drug Laws in The Nation.
These laws have been on the books 35 years. The laws essentially force
judges to send drug possessors to jail based on the weight of the drugs
they were caught with, whether the judge thinks imprisonment would be a
good idea or not. New York’s budget crisis might be a blessing in
disguise for drug reform, vanden Heuvel argues, because policy-makers
are sick of paying to keep drug offenders locked up whether they need
it or not.

And finally, some good news from Rewire. Many
people just wouldn’t feel right stepping out without a spritz of
perfume, a blast of breath-freshener, or regrettably, a head-to-toe
shellacking with Axe Body Spray. As Joe Veix reports for RH, another spray-on product may one day be added to the essential equipment list: contraceptive.
An Australian company is currently testing a hormone spritz for women.
The product is applied to the forearm. Like the contraceptive patch,
the spray is designed to deliver hormones through the skin. Researchers
hope that through-the-skin delivery can produce the same results as pills, but with lower doses of hormones and fewer side effects.

News Law and Policy

Kentucky Governor Backtracks on Pledge to End Medicaid Expansion

Teddy Wilson

Republican Gov. Matt Bevin said last week that he would not eliminate the state’s expansion of Medicaid and the kynect health-care exchange.

Kentucky’s new Republican Gov. Matt Bevin had promised to dismantle the state’s effort to implement the Affordable Care Act (ACA), and his defeat of Democratic Attorney General Jack Conway in November appeared to be a death knell for low-income residents’ health-care coverage.

However, Bevin said last week that he would not eliminate the state’s expansion of Medicaid and the kynect health-care exchange, but rather reform how the state has implemented the programs.

Bevin repeatedly said during the 2015 campaign that he would eliminate Medicaid expansion in the state. Bevin proposed transitioning residents on Medicaid through kynect to the federal health insurance exchange by 2017, when the ACA’s federal health-care subsidies are reduced.

“Absolutely. No question about it. I would reverse that immediately,” Bevin told reporters during a February 2015 press conference, according to the Associated Press. “The fact that we have one out of four people in this state on Medicaid is unsustainable, it’s unaffordable and we need to create jobs in this state, not more government programs to cover people.”

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Bevin changed course and announced his plans for reforming the Medicaid expansion program during a December 30 press conference. “We are going to transform the way in which Medicaid is delivered in Kentucky, and this transformation, I think, will be a model for the nation,” Bevin said.

The details of Bevin’s plan will be hammered out over the next six months, after which people “will have a very clear understanding of whether this is going to work or no.” The governor said that the new system could be implemented by the beginning of 2017.

The Kentucky program has been widely praised as a success, and it has been credited with reducing the uninsured rate in the state from 20.4 percent in 2013 to 11.9 percent in mid-year 2014. Kentucky’s 8.5 percent drop in the uninsured rate over the past two years is higher than any other state with the exception of Arkansas.

Bevin was joined in December by Vickie Glisson, the secretary of the Cabinet for Health and Family Services, and Mark Birdwhistell, the former secretary of the Cabinet for Health and Family Services.

Birdwhistell said during the press conference that low-income residents needed a Medicaid system that was “affordable and sustainable,” and that other states have created programs that could be an example for the plan that may be proposed.

“We’ve looked at other models in other states,” Birdwhistell said. “One of the things we keep talking about is the Indiana model. My personal preference is that we need a Kentucky model: a model that meets the needs of Kentucky.”

Indiana Gov. Mike Pence announced in January 2015 that the state will expand Medicaid under the ACA, becoming one of many GOP governors to cede to some form of Medicaid expansion after opposing Obamacare since its passage through Congress. The expansion will cover 350,000 low-income Indiana residents, or about 46 percent of the state’s 765,600 uninsured residents.

Bevin said that the need to reform the Kentucky program was mostly about its cost.

“It comes down to several things,” Bevin said. “Cost is primary among them. Ultimately it does not matter what the solution is. If there is not a way to pay for it then it would not be an option for the long term.”

The federal government pays 100 percent of the cost of expanding Medicaid in the state, and beginning in 2017, federal funding will decrease to 90 percent. A 2013 analysis by the state health department projected that Kentucky’s expansion of Medicaid would create a $15.6 billion positive economic impact, as well as nearly 17,000 jobs across the state.

Bevin claimed in December that full Medicaid expansion under the ACA was unaffordable “despite all the happy talk that came out of the previous administration.”

Bevin’s proposal to reform Medicaid expansion due to the cost of the program was announced a week before the governor released a budget proposal that would slash the state’s revenue. Bevin has proposed eliminating the state’s inventory and inheritance taxes, which would cost the state an estimated $55 million per year, according to reporting by McClatchy.

Bevin dismissed a reporter’s question to respond to the concerns of the thousands of state residents who may lose their health insurance under the governor’s proposal. “I really hope you’ve been listening to what I’ve just said, and I’m not sure that you have in light of that question,” he said.  

Whatever plan Bevin proposes will need the approval of the federal government. The Centers for Medicare and Medicaid Services (CMS) must approve waivers from states seeking to implement plans that differ from full Medicaid expansion under the ACA.

“I had a very extensive and substantive conversation with Health and Human Services Secretary Sylvia Burwell,” Bevin said. “She and I had a good conversation about what solutions would look like for Kentucky. It is our intention to work with CMS as we have said we would.”  

CMS officials approved a waiver allowing Indiana to implement its plan after months of negotiations between Pence and the Obama administration.

Analysis Human Rights

Why Are Alameda County Jails Forcing Women to Take Pregnancy Tests?

Susie Cagle

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It's a practice that isn't shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

For pregnant women in Alameda County jails in the 1980s, the daily realities of life included shackled limbs, denial of prescribed medication, and, in the case of full-term miscarriage, at least one health-care worker who insisted a woman and her baby would be “better off” if the child died. During that time, rates of female incarceration spiked, and a troubled prison system attempted to make do. Women at the jail faced rates of miscarriage 50 times higher than the California average.

In 1986, advocates sued for a litany of offenses. And in 1989, they won. Policies changed. But their attempts at reforming women’s health unexpectedly opened the door for another form of abuse.

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It’s a practice that isn’t shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

“It’s ironic that they’ve stood the [1989] agreement on its head and are using it as a reason to do something coercive and punitive,” attorney Ellen Barry, who litigated the case and wrote the settlement agreement, told Rewire recently.

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One 26-year-old woman was arrested for a misdemeanor in December 2011 in Oakland while she was menstruating. “Deputies at the Glenn Dyer jail wouldn’t give me a pad, but still made me take a pregnancy test,” she told Rewire.

These unique abuses came to light over the past four years, as large political demonstrations in Oakland saw the mass arrest and detention of protesters and journalists privileged enough to not have experienced Alameda County jails before. In June, the American Civil Liberties Union filed a lawsuit against the county for violating women’s Fourth Amendment rights against unreasonable searches.

“This is not a suit that we thought we should have to bring,” said ACLU attorney Elizabeth Gill. “In our view it’s very clearly both unconstitutional and illegal what the sheriff’s office is doing. Mandatory pregnancy testing is a clear invasion of a women’s right to privacy.”

In short, the practice is “crazy,” she said.

Women and the Prison System

The story of Alameda’s mandatory pregnancy tests is really the story of how U.S. prisons have grappled with an influx of young women over the past four decades: with supreme incompetence and intermittent malice.

As the incarcerated population exploded due to mandatory minimum sentencing and the drug war, jails and prisons were suddenly grappling with an influx of women, and an influx of health issues particular to those women. Between 1980 and 2011, the female prison population grew nearly 600 percent.

Still, women remained a relatively small portion of the prison population, making their needs by volume intrinsically less urgent—in 2000, women constituted only 7 percent of the total number of inmates in the United States. In everything from health care and nutrition to labor and housing facilities, women’s care traditionally took a back seat to that of male inmates, even though they faced unique problems inside.

“Women entering correctional facilities are often in very poor health for a number of reasons, including higher rates of poverty, substance abuse, and sexual/physical abuse among this population,” writes Kelly Parker in the Journal of Law and Health.

At any given time, around 2 to 3 percent of all women are pregnant in the United States, but according to Legal Services for Prisoners With Children, an estimated 8 to 10 percent of women who enter prison are pregnant. In Alameda County, more than twice as many pregnant women were admitted into county jails in the 1980s as in previous decades.

These women are not a comparatively large population, but they are a particularly vulnerable one. In some cases, pregnant women who are addicted to drugs have been given longer prison sentences only to ostensibly protect their unborn children.

But prisons did not know what to do with their pregnant women. In 1987, the California Department of Health Services commissioned a study of three of the state’s largest facilities for incarcerated women: the California Rehabilitation Center in San Bernardino county, the California Institution for Women in Riverside County, and the Santa Rita “mega-jail” in Alameda, the fifth largest county jail in the United States. The study found that “in all three facilities, early identification of pregnancy did not routinely occur, health care plans and case management systems for perinatal care did not exist, and prisoner’s prenatal medical records were generally not available at outside contracting hospitals when two women delivered their babies.”

It took a series of lawsuits across the country to effect changes. In 1983, in West v. Manson, women incarcerated and detained at a Connecticut state prison sued for poor treatment and conditions, and won.

So too did incarcerated women in California, in Harris v. McCarthy (1987), and Yeager v. Smith (1987).

In 1986, Vernita Jones, Darlene McKeever, and Patricia Ailsworth—along with unnamed other pregnant women as a part of a class—filed suit against Alameda County and its jail system.

Vernita Jones’ baby had died after she was not allowed to have the methadone that had been prescribed to her by a doctor. “She had entered drug treatment before she was incarcerated and then was precipitously terminated from methadone, detoxed without treatment, and lost the baby at full term,” said Barry.

In 1989, the plaintiffs won, and Barry wrote a long settlement agreement that mandated a new multimillion-dollar women’s health-care facility, and a long list of new rules and guidelines for sheriffs and health-care workers to follow in their treatment of pregnant prisoners. “In the years immediately following the settlement, I believe there was good faith compliance,” she said.

In some ways, Alameda County women were lucky. “Pregnant women incarcerated in correctional facilities that have been the subject of litigation have seen an improvement in the conditions they experience,” Parker wrote. “However, most of these facilities would not have made these changes without the threat of litigation. Thus, those pregnant women incarcerated in facilities that have evaded legal scrutiny may still face conditions not much improved than those endured by Ms. Yeager and others like her.”

The Jones v. Dyer decision and resulting consent decree was a local game-changer, a turning point. It also had consequences that no one could have seen coming.

Whose Policy Is This?

Alameda County sheriffs point to the 1989 settlement agreement in Jones v. Dyer as proof that they’re not only complying with the now long-expired binding consent decree, but that they’re also going above and beyond for women’s health. The agreement, which expired in 1993, delineates a long list of procedures and guidelines meant to protect pregnant women and their fetuses, including specifications as to how pregnancy tests should be made available to all detainees so that pregnant women can access special health care, food, and other rights and services in jail.

“There were no provisions in the settlement agreement that coerced women into having mandatory pregnancy tests—this would have been against the letter and the spirit of the settlement agreement,” said Barry.

Indeed, the agreement also clearly states that those tests are voluntary for all prisoners, and that detainees can choose to opt out: “A prisoner may choose not to have this pregnancy test,” it states.

In 2011, I was arrested while reporting in Oakland, and forced to take one of these pregnancy tests, peeing into a plastic cup in an open cell in front of milling sheriffs who tried to avoid eye contact. I asked them and the health-care worker who took the cup why I had to do this. I got no response.

In an interview several months later, Alameda County sheriffs assured me that this was not their policy. “That’s Corizon’s policy,” they told me, referring to the private health-care company that oversees all medical needs in Alameda County jails. “That’s not us. You should talk to them.”

However, in a 2010 letter sent to the ACLU, Alameda County head sheriff Gregory Ahern writes that “every female prisoner is required to submit to a pregnancy test through urinalysis.”

As prison populations have exploded over the past few decades, so has the prison industry. While private prison facilities have proliferated across many parts of the country, California’s jails have, with some exceptions, remained under public control. But some municipalities have contracted out for specific jail services, including health care.

As attorneys were still hashing out Jones v. Dyer, Alameda County contracted with Prison Health Services in 1988.

“The concern about private health care is that these institutions are basically saying we can do this cheaper, which usually means we can do this at a less quality level,” said Barry. “This issue was highlighted fairly shortly after the settlement was written, and we did have to remind the county a number of times that though they’d privatized, it doesn’t take away their duty to provide constitutionally sufficient medical care.”

Prison Health Services repeatedly violated the settlement by not providing women with prescribed methadone.

“For months and months after they did not get their act together. It was very disruptive and very difficult” to get the company to comply, said Barry.

In 2011, Prison Health Services merged with its largest competitor, Correctional Medical Services, to become the largest company of its kind in the country. Corizon boasts operations in the jails and prisons of at least 29 states, including in three other California counties. The company bills itself as a cost-cutting measure for cash-strapped municipalities that have seen their prison populations skyrocket.

“This has been a very long and a very successful partnership,” said Ahern, the county sheriff, on the occasion of the county’s renewal of Corizon’s contract last February. “Corizon has provided excellent service to our inmate population while saving the County millions of dollars over the length of the contract.”

“Even My Own Bodily Fluids Were Not My Own”

One after another, women held at Alameda County jails told me similar tales of coercion and confusion, regardless of their alleged crime or their personal medical history. (The women all asked to remain anonymous.)

“They made me take one even though I’m infertile, told them so, and even though that could have easily been verified with one phone call. They had a woman cop watch me pee, I think because I had indicated I didn’t want to take a pregnancy test,” one woman told me in a written message.

“They told me it was because ‘Glen Dyer can’t hold women, so all women being held at Glen Dyer need to take a pregnancy test,’ which didn’t make any sense,” wrote another.

“It struck me for the first time when I was forced to pee in the cup, that I really could be coerced to do things that I didn’t want to do, and that it didn’t take much either. I was pretty furious that even my own bodily fluids were not my own,” a third woman wrote in her prison diary, which she shared with me.

When they arrive at the jail, prisoners have a very brief consult with a health-care worker who asks a few basic medical questions. Then they are given the pregnancy test—before they are technically booked into the jail, but are in sheriffs’ custody.

While Alameda County sheriffs claim these tests are meant to protect women’s health, during this limbo period in holding—which can last for more than two days—it is jail policy that detainees are not given access to doctors, nurses, or any other medical care, including their prescribed medications for conditions as serious as diabetes, multiple sclerosis, and HIV.

Alameda County and Corizon both declined to answer questions about their specific reproductive health-care policies and pregnancy test practices due to the ACLU’s pending lawsuit.

“Women are provided with a wide range of services, including contraception, as well as obstetrical care if they are pregnant while incarcerated,” Corizon spokesperson Susan Morganstern wrote in an email. “Corizon’s policies are consistent with the American Congress of Obstetricians and Gynecologists, and the entire program is closely monitored by a board-certified obstetrician/gynecologist.”

Though sheriffs previously said that mandatory pregnancy testing was Corizon’s policy, they have changed their story following the ACLU’s suit.

“They are saying different things in different contexts,” said the ACLU’s Gill. “They’ve variously said they’re required to do it or that their health-care contract requires it, which may be the case but is irrelevant.”

Since the suit was filed, sheriffs have repeatedly stated that the policy was a result of a consent decree, though they’ve declined to provide details.

“In the past we’ve gotten sued for not doing pregnancy tests, so it’s one of those,” Alameda County Sergeant Ray Kelly said, sighing.

Of Alameda County’s two jails, only the suburban Santa Rita “mega-jail” is approved to incarcerate female prisoners of any kind, including misdemeanor arrestees who are only held for a few hours.

“Glen Dyer Detention Facility [in Oakland] does not have the facility or space to dedicate to women’s reproductive health,” said Alameda County Captain Colby Staysa. “The decision to not allow female inmates at Glen Dyer Jail included many factors and was not based solely on reproductive health.”

If the policy originated with the county, it clearly violates the Jones v. Dyer settlement agreement, along with prisoners’ constitutional rights. If it originated with Corizon, it’s even more peculiar.

“There’s a strange notion that if these agencies go with privatization, that lessens the culpability of the government entity in situations where there are unconstitutional violations,” said Barry.

“It’s the sheriffs’ contract, and they are responsible for the healthcare of women in their jails. It’s not like the health-care provider could come in and do whatever they want,” said Gill.

It’s not clear why Corizon would facilitate costly, unwanted medical procedures on unwilling women, but the company has good reason to try to protect itself from potential liabilities. In its short history, the company has fought and settled several hundred lawsuits, with allegations ranging from neglect that resulted in a broken finger, to abuse that resulted in wrongful death.

But when I asked Sergeant Ray Kelly about the county’s contract with Corizon, he was confident: “Inmates get the same level of care that you or I would, probably better in some cases.”

The ACLU’s case is set to go to trial this fall in state court. The suit seeks to maintain pregnancy testing in the jails, but on a voluntary, not mandatory, basis, with a clear opportunity for women to opt out if they choose. The suit also seeks to have a court declare that the mandatory pregnancy testing clearly violates the Fourth Amendment, which protects against unreasonable searches.

“The fix to this is very simple: You don’t force a pregnancy test on every women who’s arrested,” said Gill.

But as long as pregnant women are incarcerated, Alameda County and other jails will attempt to strike a balance between delivering minimally acceptable care while protecting themselves from possible liability.

“Basically what we would like to see is not really any pregnant women in Santa Rita or any other jail,” said Carol Strickman, staff attorney at Legal Services for Prisoners with Children. “I don’t think jails and prisons are very good at providing adequate medical care, and it’s a vulnerable time for people. The bottom line is resources.”

But there’s one quick and simple way that Alameda County could cut its health-care budget right now: Stop forcing women to pee in those cups.