Analysis Law and Policy

The Dark, Dismal Future Of Public Health Care In Texas: Health Commissioner Claims High Rates of Uninsured Are a Myth

Andrea Grimes

After just four months on the job, Texas' new top public health bureaucrat has said he doesn't believe in Texas' high uninsurance numbers, blames good weather for Texans' ill health, and has hired an adviser who hates children's Medicaid. Welcome to the future of public health care in Texas.

The new executive commissioner of Texas’ Health and Human Services Department—the social services behemoth that’s currently in the process of building a whole new Texas Women’s Health Program (WHP) so it can exclude Planned Parenthood from providing contraceptives and cancer screenings to low-income Texans—has some interesting views on the condition of public health care in his state. And by “interesting,” I mean shocking. I mean shockingly ignorant. Astounding, even.

Dr. Kyle Janek is an anesthesiologist by training, but for the last 18 years has served as a Republican in the Texas Legislature and as a lobbyist for various medical organizations. Governor Rick Perry appointed him as executive commissioner of the Texas HHSC on September 1st. You might expect that in 18 years of being plugged into Texas politics and state health policy, he’d have a decent grasp on the issues facing Texans.

You’d be wrong. Because Kyle Janek doesn’t believe—despite credible, widely accepted evidence to the contrary—that one of Texas’ most pressing health problems, its high number of uninsured adults, is real. He doesn’t believe that more than a quarter of Texans are uninsured, as estimated by the U.S. Census Bureau. He told a Texas Tribune reporter in early October that he believed that number to be “inflated,” and then reiterated his point in an extended interview with Tribune editor Evan Smith on October 31st. (Through his press representatives, he refused an interview with Rewire.) Here’s his most recent take via the Tribune:

“It’s not that I don’t believe those numbers. I don’t believe the reasoning for those numbers.”

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Janek’s problem: he said the Census Bureau only takes a “snapshot” by asking people if they’re uninsured, and doesn’t ask them if they had insurance in the past or if they think they have a job lined up with insurance in the future. Janek must not be aware that for nearly 25 years, the Census Bureau’s “snapshot” has shown practically the same thing: since 1987, Texas repeatedly has one of the highest, or the very highest, number of uninsured adults in the country. That rate has not been below 1987’s 23 percent; it peaked at 26.8 percent in 2009 and is currently estimated at 26.2 percent.

That’s a remarkably consistent snapshot of something that Janek seems to believe changes for millions of people by the day. Janek says he isn’t sure why Texas “is different” when it comes to health care, but he told the Tribune it could be because the weather here is nice.

“Do we have so many people that are temporarily uninsured? Or is it the general climate of better weather and glorious place to live? Folks come here, and that attracts more folks with health care needs or disabilities?” he wondered during the interview. Surely our high uninsured numbers couldn’t be due to the fact that Texas jobs generally don’t provide health insurance, that Medicaid in the state is limited, that insurance rates are unregulated or that Texas has a large immigrant population, as the Washington Post reported last year. No, it’s probably just the purty weather.

I called Dr. John Holcomb, a pulmonologist who chairs the Texas Medical Association’s committee on Medicaid, to find out what he makes of Janek’s stance. (Spoiler alert: the TMA has said that “Texas is the uninsured capital of the United States.”) Holcomb told me that Janek’s comments are “a perfect example of how Dr. Janek is not ready for prime time.”

Holcomb told me that while Janek is a “very good speaker” and “very articulate,” when it comes to uninsured rates in Texas, “everyone knows exactly what those numbers are.” They aren’t inflated. They’re real. They’re accepted by public health professionals all over the state, including Dr. Janet Realini, the president of unplanned pregnancy prevention group Healthy Futures of Texas. Realini has been a vocal supporter of maintaining the Medicaid Women’s Health Program and a critic of the state’s and the HHSC’s cuts and changes to money-saving family planning programs. 

“We have more uninsured, a higher precentage in Texas, than any other state,” Realini told Rewire. She called Janek’s job “pretty tough,” and said she’s “glad there’s a physician in that position,” but says she’s mainly focused on Janek’s performance with regard to reproductive health care and the Texas Women’s Health Program. The WHP has so far been the most highly publicized of Janek’s challenges in his short few months in office, and has occasionally put him at odds with the medical community, which tends to favor the continued inclusion of Planned Parenthood in the WHP.

“I still see a great concern that we won’t have enough providers throughout the state,” said Realini of the new Texas WHP without Planned Parenthood; it’s a concern she shares with a number of researchers and public health experts in Texas. To its credit, the HHSC under Janek relaxed rules regarding the WHP’s definition of abortion “promotion” after an outcry from doctors who were afraid they’d be barred from even discussing the procedure with their WHP patients.

It was a brief moment of clarity for Janek, who has said that he believes Texas’ public hospital system, and private hospitals that are reimbursed for providing indigent care, are decent solutions to Texas’ (non-existent?) uninsured problem. In fact, they may have already solved the problem (which may or may not be a real problem, according to Janek). He told the Texas Tribune: “There is another system that we tend to forget, and that is the system of safety net hospitals around the state.”

Who constitutes the “we” that the memory-challenged Janek is referring to is unclear: Taxpayers, who fund public hospitals through increasing property taxes, and insured people who see their premiums go up to cover emergency room care, haven’t “forgotten” about the higher costs they’re taking on. Uninsured people who have nowhere else to go for treatment haven’t “forgotten” about public hospitals. Nobody has “forgotten” about an overburdened, expensive  system that usually catches people when they’re at their sickest. But Janek wants us to believe that Texas’ county hospital system—every county in the state is required to spend eight percent on its general revenue on indigent care—is sufficient?

By that reasoning, the TMA’s Dr. Holcomb told me, “That means every county in the state is already taken care of.” Of course, Texans’ ill health and high uninsured rate belie that.

Interestingly enough, Janek does have a solution to this non-existent problem that he doesn’t believe in, and that is to widen the “safety net,” not by accepting a federal Medicaid expansion or the Affordable Care Act, (which the Kaiser Foundation has found would help cash-strapped Texas cut the rate of uninsured in half in a very short amount of time for a minimal investment) but by launching more medical schools.

“One of the things i’d like to see us do is shore up those medical schools,” Janek told the Texas Tribune. He said he tried to convince legislators in years past, when he served as a state representative and then senator, that medical schools were the way to go, but that he was “unsuccessful at getting [his] message across.”

Texas currently has nine medical schools in largely high-population suburban or urban areas: College Station, Waco, El Paso, Fort Worth, Dallas, San Antonio, Galveston, Houston and Lubbock. These schools, and ones that Janek hopes will be founded in the future with federal funds the state may or may not be able to secure through Medicaid block grants or waivers, could be “a network that is just terrific,” according to Janek, who envisions treating the schools as managed care providers. 

“That is not just a safety net. They actually do become an insurer,” said Janek.

For someone who says he argued on behalf of more medical schools for years, Janek takes a mighty rosy view of how easy it is to found them in Texas. Take, for example, my very deep blue city of Austin, a bastion of tax-loving hippie-dippie liberals. In November’s election, we were presented with Prop 1, a five-cent medical school-funding property tax increase. It was a hard-fought victory, but the measure passed. Health care-loving people—I’m one of them—rejoiced. And barely two days after the election, the measure was embroiled in a lawsuit—one that was swiftly thrown out, but nonetheless: even in academic-focused Austin, where you’d expect the founding of a new medical school to be more of a cakewalk than anywhere else, it was a long and dirty fight. At the earliest, that medical school will enroll its inaugural class in 2016—in Austin, a city with a vibrant public service community, a county-funded reproductive health care program, and many other low-income-focused health care resources.

Whereas Texas’ border area in the Rio Grande Valley, one of the neediest areas of the state when it comes to low-income health care needs, has been angling for a medical school since the 1940’s. Sixty years of lobbying, negotiating and fighting, and the brandest, newest, shiniest medical school in Texas goes to … Austin, with a $30 million per year special budget. As a consolation prize, last spring, the University of Texas System Board of Regents “reaffirmed their commitment to transitioning South Texas’ regional health centers into a freestanding medical school, but without additional spending.” 

An Austin medical school takes a property tax increase and a dedicated multi-million dollar budget, but the Rio Grande Valley is somehow, someday going to get a medical school “without additional spending.” South Texas probably is next in line for a school, but when, or where, or for how much money is unclear at this point.

“Dr. Janek’s idea didn’t have any fiscal note associated with it,” Dr. Holcomb at the TMA told Rewire. “I’m astounded that Dr. Janek would come up with that idea without the dollars to go with it.”

Dr. Holcomb told Rewire that his organization has asked Janek’s office for details on the fiscal realities of the medical school proposition, but has so far received nothing in response.

Why does Janek think that Texas legislators, county commissioners and other politicos are suddenly ready to funnel millions, probably billions, of dollars into medical schools? 

Perhaps because he’s hired a conservative think-tanker to help make that happen. Her name is Mary Katherine Stout, and for $150,000 per year, the former Perry staffer, Wal-Mart defender and far-right Texas Public Policy Foundation economics “expert” will act as a “special advisor,” “involved in a number of policy and planning issues,” according to HHSC spokesperson Stephanie Goodman. Goodman told Rewire that Stout will be “looking at ways [Texas HHSC] can work with medical schools to support their efforts to make sure Texas has enough health professionals.”

In the past, Stout has particularly focused her efforts on criticizing Medicaid and especially CHIP, the popular children’s Medicaid program, which she has said is rife with luxury car-driving freeloaders and should be closed to people who are verily rolling in cash and furs, like “those making as much as $40,000 annually for a family of four.” Stout’s coldness is unusual even for Texas right-wingers, and her cruel preoccupation with making sure as few Texas children as possible receive needed aid borders on the bizarre. To that end, this was her 2007 proposal for fighting “The Left” in the National Review:

Perhaps we should fight their strategy with our own campaign to tell stories of success, of people working hard and making good decisions for their family, of people who made something out of nothing, or who turned something into more. Yes, send me your stories of success, of personal responsibility, and of government’s depredations on a family trying to make ends meet.

These are the words of a “special advisor” on Texas public health care policy, who’ll be whispering in the ear of a man who believes the state has “inflated” uninsured numbers because hey, poor people can always go walk in and get some open heart surgery at a public hospital or amorphous medical school of dubious funding origin. 

For now, it’s hard to say how Janek’s term as executive commissioner will go—after all, he’s only been on the job four months. But he’s had nearly 20 years in politics to form reasonable, fact-based opinions about the state of public health care in Texas, and if  the best he can do is wonder about the weather, the forecast for this state is stormy indeed.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Law and Policy

Voting Rights Advocates Notch Another Win, This Time in Texas

Imani Gandy

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state's photo ID requirement would be allowed to vote in the November's election.

The ultra-conservative Fifth Circuit Court of Appeals, in a surprising victory for voting rights advocates, ruled that Texas’s voter ID law disproportionately burdened Black and Hispanic voters in violation of the federal Voting Rights Act (VRA) of 1965.

The decision means Texas can’t enforce the law in November’s presidential election.

Wednesday’s ruling was the latest in a convoluted legal challenge to the Texas law, which conservative lawmakers passed in 2011 and is among the most stringent voter ID laws in the nation. Voting rights advocates challenged the measure almost immediately, and the law remained blocked until the Roberts Court’s 2013 ruling in Shelby County v. Holder revived it.

The Court in Shelby struck down a key provision of the VRA, Section 4, which is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia under Section 5 of the VRA before making any changes to their election laws. States with a history of racially discriminatory voting requirements like Texas were covered by the Section 4 pre-clearance requirement before the Shelby decision.

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Within hours of the Court’s ruling in Shelby, Texas officials announced that they would begin enforcing SB 14, the restrictive voter ID law.

In response, a group of Texas voters sued Texas under a different portion of the civil rights law, arguing SB 14 violates Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race. Unlike Section 5 of the VRA, which requires state officials prove a voting rights law has no discriminatory intent or effect, under Section 2, the burden of proving racial discriminatory intent or effect is placed on voters to prove the restriction discriminated against their voting rights.

Both the district court and a three-judge panel of the Fifth Circuit agreed and found that SB 14 had a discriminatory affect in violation of Section 2 of the VRA. Texas then requested that the Fifth Circuit rehear the case en banc, with the full slate of judges on the Fifth Circuit.

The full Fifth Circuit issued that decision Wednesday, handing Texas conservatives a decisive loss.

“The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote for the majority.

Texas claimed that it had modeled its law after Indiana’s law, which was upheld in another challenge, Crawford v. Marion County Election Board. The Fifth Circuit, however, rejected Texas’s argument, finding obvious differences between the two laws that affected its decision that Texas’s law had a discriminatory impact on people of color.

“While cloaking themselves in the mantle of following Indiana’s voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law,” Haynes wrote.

One such ameliorative provision was an indigency exception, which the GOP-dominated Texas house stripped from the law. That exception would have freed indigent people from any obligation of paying fees associated with obtaining a qualified photo ID.

Although the Fifth Circuit found that the law violates the Voting Rights Act, the Fifth Circuit did not fashion a remedy for this violation and instead, remanded the case back to the lower court, instructing it that the “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.”

In addition, the appeals court reversed the lower court ruling that Texas had intended to discriminate against racial minorities. The court found evidence to support such a claim, but ultimately found that the district court’s overall findings were insufficient, and sent the case back to the district court to reconsider the evidence.

Nevertheless, voting rights advocates hailed the decision as a victory.

“We have repeatedly proven—using hard facts—that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement, according to the Texas Tribune. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

Texas Republicans, including former governor and presidential candidate Rick Perry, rushed the law through the GOP-majority legislature in 2011, arguing that it was necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.

Politifact found in March of this year that since 2002, there had been 85 election fraud prosecutions, and not all of them resulted in convictions. To put that in perspective, from 2000 to 2014, some 72 million ballots were cast in Texas, not counting municipal and local elections.

Justin Levitt, a professor at Loyola Law School in Los Angeles, argued in 2015 that most of the Texas prosecutions would not have been prevented by the voter ID law, since the prosecutions were not for in-person voter fraud, but rather for marking someone else’s absentee ballots without their consent, fake registrations, or voting while ineligible.

“There are vanishingly few instances of voter fraud—incidents flat-out, not just prosecutions—that could be stopped by applying a rule requiring ID at the polls,” Levitt said, according to Politifact.

Opponents of SB 14 cited the near absence of proven in-person voter fraud, arguing that the law was intended to dilute the voting strength of the state’s increasing population of people of color, many of whom do not have photo identification and who would find it difficult to obtain it, as the opinion noted.

Laws requiring photo identification disparately impact people of color, students, and low-income voters, all groups who tend to vote for Democrats rather than Republicans.

Nevertheless, Texas conservatives continue to insist that the law was appropriately tailored to address voter fraud. “Voter fraud is real, and it undermines the integrity of the process,” said Gov. Greg Abbott (R) in a statement on Wednesday, according to the Texas Tribune.

Texas may appeal to the Supreme Court and ask the high court to intervene, although given that the Roberts Court remains short one judge, a 4-4 split is possible, which would leave in place the Fifth Circuit’s ruling.

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state’s photo ID requirement would nevertheless be allowed to vote in the upcoming election in November.