201: Obamacare “Repeal”

Chris Spangle, Greg Lenz, Hanna Weber, and Brian Nichols discuss the repeal of Obamacare and the possible spying on Trump by the deep state.

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Health Care Reform

● President Donald Trump and House Freedom Caucus members failed to strike a deal on the GOP Obamacare replacement Thursday, endangering the prospects of passage and all but assuring any immediate vote on the measure would fail.

Hours later, House leaders canceled a planned Thursday night vote on the legislation. There was no immediate word when a vote might occur. The House Republican Conference is planning to meet at 7 p.m. about how to proceed.

Negotiations between Trump and the arch-conservatives opponents of the bill reached at least a temporary standstill after Freedom Caucus members were told recent concessions to the far-right represented a final offer. The group rejected that, wanting more.

Trump’s inability to clinch an agreement means that Speaker Paul Ryan does not likely have the votes needed to pass the measure. The Wisconsin Republican can afford to lose only 22 votes on the floor. The House Freedom Caucus, however, has three dozen members, who have vowed to block the bill unless they get what they want. Roughly a dozen centrist Republicans also have come out against the bill.

● A number of Freedom Caucus members had suggested Trump’s latest concession — repealing Obamacare’s mandate that insurance plans provide a minimum level of “essential” benefits — wasn’t enough. The group wants a complete repeal of all Affordable Care Act regulations — including popular provisions Trump promised he would maintain.

The conservatives’ target list encompasses a prohibition against discriminating against people with pre-existing conditions and a requirement that adults up to age 26 can remain on their parents’ health insurance.

● Now, Freedom Caucus members are threatening to trip up not John Boehner or Ryan, but a Republican commander-in-chief who remains highly popular in their districts.

Many House Republicans are furious with the Freedom Caucus, saying the group keeps moving the goal posts and that it really wants to sink the health care bill altogether.

● The Freedom Caucus risks overplaying its hand if it continues to hold out support for the bill. Trump has made clear he wants to get health care passed and move on. He made clear that Wednesday’s offer was final. If Trump loses his patience with caucus members, they could find themselves in his crosshairs.

● In summary, the legislation’s tax cuts will be very attractive to wealthy Americans and health insurers and providers, who would get a trillion dollars in tax breaks. It could cause consternation for Medicaid recipients and state Medicaid programs, which would see federal funding for Medicaid steadily diminish, potentially thinning out coverage. The legislation could be bad news for recipients of current tax credits who are older, sicker, and poorer, and who live in areas where care is expensive. They may be able to afford low actuarial value coverage with the tax credits the bills would provide them, but they are unlikely then to be able to afford the cost sharing that coverage will impose.

Higher-income younger people, on the other hand, would find coverage much more affordable than it is now under the legislation—the tax credits might fully cover their premiums and leave extra for their health savings accounts. Some insurers could find the state reinsurance money and continuous coverage requirement enough of an incentive to stay in the market, but others may not.

Finally, one cannot know without a CBO report how this all works out. But it is hard to see how the bills pay for themselves, and they could result in significant losses in coverage.

● What The Two Bills Do, And What They Don’t The two proposed bills do not repeal the ACA. They leave in place the ACA’s titles affecting Medicare, quality of care, program integrity, biosimilars, workforce reform, the Indian Health Service—indeed virtually all of the ACA except for its insurance affordability provisions, individual and employer mandates, taxes, and Medicaid reforms. More specifically, the legislation does not repeal the ACA’s insurance reforms, such as the ACA’s requirements that health plans

○ cover preexisting conditions;
○ guarantee availability and renewability of coverage;
○ cover adult children up to age 26; and
○ cap out-of-pocket expenditures,
○ and the ACA’s prohibitions against
○ health status underwriting;
○ lifetime and annual limits; and
○ discrimination on the basis of race, nationality, disability, age, or sex.

● Unlike the leaked version, the final bills do not eliminate the essential health benefits provisions (except with respect to Medicaid plans). They do repeal the ACA’s actuarial value requirements and replace the ACA’s three to one age ratio limit with a five-to-one ratio.

● Medicaid: Per-Capita Caps And Other Changes Much of the E&C bill is devoted to changes in the Medicaid program. Indeed, the bill is not so much an ACA repeal bill as it is an attempt to change dramatically the Medicaid program. Most importantly, it transitions federal Medicaid funding to a per-capita cap basis by 2020, transforming the nature of the Medicaid program. The legislation’s Medicaid provisions also
○ contract state authority to make presumptive eligibility determinations,
○ limit in a complicated way the ACA’s enhanced funding for the Medicaid expansion population, ○ eliminate the ACA’s disproportionate share hospital cuts by 2020 (earlier for non-expansion states),
○ provide $10 billion in safety net funding for non-expansion states over five years,
○ provide incentives for states to re-determine eligibility for Medicaid more often, and
○ address several Medicaid eligibility issues. The bill’s Medicaid provisions will be addressed in more detail here in the near future.

● First it repeals the ACA’s prevention and public health fund after 2018 and rescinds all remaining unobligated funds as of that date. It appropriates an additional $422 million for community health centers for 2017. It prohibits federal funding for Planned Parenthood for one year beginning with the enactment of the law.

● The E&C bill repeals the ACA’s cost-sharing reduction provisions after 2019. These provisions currently reduce out-of-pocket limits and increase the actuarial value of coverage for individuals with incomes below 250 percent of the federal poverty level. The repeal of these provisions would result in dramatically higher deductibles and other cost-sharing for these low-income individuals.

● The bill summary pointedly notes the House’s position in House v. Price (formerly House v. Burwell) that current reimbursements to health insurers for cost-sharing reductions are not permitted because Congress has not appropriated funding

● The E&C bill creates a Patient and State Stability Fund available to the states from 2018 through 2026. States can use funds provided under this program for a number of purposes including:
○ providing financial assistance to high-risk individuals;
○ providing incentive to “appropriate entities” to provide reinsurance to stabilize individual market insurance premiums;
○ reducing the cost of insurance for individuals with high rates of utilization of health services;
○ promoting participation and health insurance options in the individual and small group markets;
○ promoting preventive, dental, vision care, and mental health and substance use disorder services;
○ paying providers directly for the provision of such services; and providing assistance to individuals to reduce out-of-pocket costs.

● Replacing the individual mandate: The W&M committee bill repeals the ACA’s individual responsibility requirement, and the E&C bill enacts in its place a continuous coverage requirement. To avoid a 30 percent premium surcharge, individuals must prove that they did not have a gap in creditable coverage of at least 63 continuous days during the 12 months preceding coverage; individuals aging out of dependent coverage must prove that they enrolled during the first open enrollment period after which dependent coverage ceased. The penalty does not vary by health status but would be greater for older people since premiums may vary with age. The penalty lasts for the remainder of the plan year for special enrollments during 2018, and for the 12-month period beginning with the first day of the plan year for 2019 and succeeding years.

● Removing Penalties Connected With The Individual And Employer Responsibility Provisions: In the meantime, the penalty for the individual responsibility and employer responsibility provisions are eliminated retroactively for years beginning with 2016. This will further confuse the question of whether the mandate is being enforced for 2016 during the current tax filing season and further undermine the stability of the individual insurance market going forward. The mandates themselves are not being eliminated, presumably because of the Byrd Rule, which limits reconciliation provisions in the Senate to provisions that affect government revenues and outlays (although other provisions of the bills, such as the age rating and AV changes or continuous coverage requirements, might also seem to violate the Byrd rule). Significantly, the legislation does not eliminate the ACA’s employer and insurer reporting requirements, which have arguably been more of a burden to employers than the employer mandate itself.

● Repealing Actuarial Value Requirements: Finally, as mentioned earlier, the E&C bill ends the ACA’s actuarial value and metal level requirements after December 31, 2019 and allows states to permit age ratios of 5 to 1 for plan years beginning on or after January 1, 2018. The repeal of the AV levels would allow plans to be sold with AVs of less than 60 percent, although the maximum out-of-pocket limit in the ACA is retained so insurers would not be able to sell plans less generous than the current catastrophic plans. They would also be able to sell plans with AVs of more than 90 percent, and anything in between. This could muddle what is already a difficult process for plan shoppers and further complicate the ACA’s risk adjustment program.

● Repealing Revenue Provisions: The W&M bill repeals a host of ACA tax provisions including:
○ The $500,000 limit on business expense deductibility for compensation to insurance executives;
○ The tanning tax;
○ The branded prescription drug tax;
○ The health insurance tax;
○ The Medicare tax imposed on unearned income on taxpayers earning more than $200,000 ($250,000 for joint filers);
○ The “Cadillac” plan tax (which reappears in 2025, apparently to satisfy Senate prohibitions on reconciliation provisions that increase out-year deficits);
○ The prohibition against paying for over-the-counter medications with tax subsidized funds from health savings accounts (HSAs), Archer MSAs, or flexible spending or health reimbursement arrangements;
○ The ACA’s increase in the penalty for the use of HSA and Archer MSA funds for non-medical purposes (reducing the penalty from 20 to 10 percent for HSAs and 20 to 15 percent for MSAs);
○ The $2500 limit on contributions to flexible spending accounts;
○ The medical device excise tax;
○ The requirement that employers reduce their deduction for expenses allowable for retiree drug costs without reducing the deduction by the amount of retiree drug subsidy;
○ The increase in the level of medical expenses that must be incurred to claim a tax deduction, reducing the level back from 10 percent to 7.5 percent;
○ The repeal of the ACA’s Medicare .9 percent tax surcharge on taxpayers with incomes exceeding $200,000 ($250,000 for joint filers).

● No Tax On Higher-Cost Employer Plans

Trump Investigation

● House Intel Chairman Nunes spoke to reporters when he left the briefing at The White House and had some more stunning things to say:

● And the punchline: there are “multiple FISA warrants outstanding against Trump” Nunes also told reporters: here are “multiple FISA warrants out there” involving Trump.

● The FBI is not cooperating with the House of Representatives’ investigation into the NSA’s surveillance of the Trump campaign during the 2016 election, the chairman of the U.S. House Permanent Select Committee, Devin Nunes said in a press conference on Wednesday afternoon.

● Nunes said that he had briefed the president about his concerns over the “incidental” collection of data, adding that the president “needs to know” that these intel reports exist, and adding ominously that “some of what I’ve seen seems to be inappropriate.” Nunes also said that Trump, others in the transition team were put into the intelligence report and asked if Trump should be in these “normal” reports.

● But what was perhaps most troubling in Nunes presser is that in the aftermath of Monday’s Congressional hearing with James Comey in which the FBI director said on the record there had been no surveillance of Trump, is the House Intel Commission chair’s statement that the FBI is not cooperating with the investigation. “We don’t actually know yet officially what happened to General Flynn,” Nunes said of how communications from Gen. Flynn’s calls were leaked to the press. “We just know that his name leaked out but we don’t know how it was picked up yet. That was one of the things that we asked for in the March 15th letter, was for the NSA, CIA, and FBI to get us all the unmasking that was done.” “And I’ll tell you, NSA is being cooperative,” Nunes continued, “but so far the FBI has not told us whether or not they’re going to respond to our March 15th letter, which is now a couple of weeks old.” Nunes also reported that as of now, he “cannot rule out” President Obama ordering the surveillance. Finally, and contrary to earlier media reports, Nunes clarified that the surveillance was not related to the FBI’s investigation into possible collusion with Russia. This surveillance, he emphasized to reporters, does not “have anything to do with Russia.”

● Attorney Larry Klayman representing NSA CIA Whitsleblower

Dennis Montgomery: “Former NSA and CIA contractor Dennis Montgomery, holds the keys to disproving the false claims of those representatives and senators on the House and Senate intelligence committees, reportedly as well as FBI Director James Comey, that there is no evidence that the president and his men were wiretapped.

Montgomery left the NSA and CIA with 47 hard drives and over 600 million pages of information, much of which is classified, and sought to come forward legally as a whistleblower to appropriate government entities, including congressional intelligence committees, to expose that the spy agencies were engaged for years in systematic illegal surveillance on prominent Americans, including the chief justice of the Supreme Court, other justices, 156 judges, prominent businessmen such as Donald Trump, and even yours truly. Working side by side with Obama’s former Director of National Intelligence (DIA), James Clapper, and Obama’s former Director of the CIA, John Brennan, Montgomery witnessed “up close and personal” this “Orwellian Big Brother” intrusion on privacy, likely for potential coercion, blackmail or other nefarious purposes.

But when Montgomery came forward as a whistleblower to congressional intelligence committees and various other congressmen and senators, including Senator Charles Grassley, Chairman of the Senate Judiciary Committee, who, like Comey, once had a reputation for integrity, he was “blown off;” no one wanted to even hear what he had to say. The reason, I suspect, is that Montgomery’s allegations were either too hot to handle, or the congressional intelligence and judiciary committees already knew that this unconstitutional surveillance was being undertaken. Moreover, given the power of the NSA, CIA, and DNI, for congressional committee heads to take action to legitimately and seriously investigate and if necessary recommend prosecution of officials like Clapper and Brennan could, given the way Washington works, result in the spy agencies disclosing and leaking (as occurred recently with General Michael Flynn), the details of their mass surveillance, ruining the careers if not personal lives of any politician who would take them on.

After Montgomery was turned away as a whistleblower, he came to me at Freedom Watch. With the aid of the Honorable Royce C. Lamberth of the U.S. District Court for the District of Columbia, who I had come to respect and trust over the years of my public interest advocacy, we brought Montgomery forward to FBI Director James Comey, through his General Counsel James Baker. Under grants of immunity, which I obtained through Assistant U.S. Attorney Deborah Curtis, Montgomery produced the hard drives and later was interviewed under oath in a secure room at the FBI Field Office in the District of Columbia. There he laid out how persons like then-businessman Donald Trump were illegally spied upon by Clapper, Brennan, and the spy agencies of the Obama administration. He even claimed that these spy agencies had manipulated voting in Florida during the 2008 presidential election, which illegal tampering resulted in helping Obama to win the White House.

This interview, conducted and videoed by Special FBI Agents Walter Giardina and William Barnett, occurred almost two years ago, and nothing that I know of has happened since. It would appear that the FBI’s investigation was buried by Comey, perhaps because the FBI itself collaborates with the spy agencies to conduct illegal surveillance. In landmark court cases which I filed after the revelations of Edward Snowden, the Honorable Richard Leon, a colleague of Judge Lamberth, had ruled that this type of surveillance constituted a gross violation of the Fourth Amendment to the Constitution. (See www.freedomwatchusa.org for more information.)

A few months ago, given FBI’s seeming inaction in conducting a bona fide timely investigation of the treasure trove of information Montgomery had produced and testified to, I went to Chairman Bob Goodlatte of the House Judiciary Committee, as I had done earlier with Senator Grassley, since Montgomery had revealed that judges had been spied upon, and asked his staff to inquire of Director Comey the status of the investigation. I have heard nothing back from Goodlatte or his staff and they have not responded to recent calls and emails.

So last Thursday, I traveled to Capital Hill to personally meet with Chairman Devin Nunes (R-Ca.) of the House Intelligence Committee and, when his scheduler claimed that he was “unavailable,” forcefully pushed for a meeting with one of his committee lawyers, Allen R. Souza, and fully briefed him about Montgomery and the FBI’s apparent cover-up. I told this staff intel lawyer to inform Chairman Nunes of the facts behind this apparent cover-up before the committee holds its hearing on the alleged Trump wiretaps and questions Comey this Monday, March 20, in open session. My expressed purpose: to have Chairman Nunes of the House Intelligence Committee ask Comey, under oath, why he and his FBI have seemingly not moved forward with the Montgomery investigation.

During my meeting with House Intelligence Committee counsel Allen R. Sousa I politely warned him that if Chairman Nunes, who himself had that same day undercut President Trump by also claiming that there is no evidence of surveillance by the Obama administration, I would go public with what would appear to be the House Intelligence Committee’s complicity in keeping the truth from the American people and allowing the FBI to continue its apparent cover-up of the Montgomery “investigation.” And, that is where it stands today. The big question: will House Intelligence Committee Chairman Nunes do his job and hold FBI Director Comey’s feet to the fire about the Montgomery investigation?”

● The latest leaks from WikiLeaks’ Vault 7 is titled “Dark Matter” and claims that the CIA has been bugging “factory fresh” iPhones since at least 2008 through suppliers. The full documents are expected to be released after a 10 a.m. EDT “press briefing” that WikiLeaks promoted on its Twitter.

● Today, March 23rd 2017, WikiLeaks releases Vault 7 “Dark Matter”, which contains documentation for several CIA projects that infect Apple Mac firmware (meaning the infection persists even if the operating system is re-installed) developed by the CIA’s Embedded Development Branch (EDB). These documents explain the techniques used by CIA to gain ‘persistence’ on Apple Mac devices, including Macs and iPhones and demonstrate their use of EFI/UEFI and firmware malware. Among others, these documents reveal the “Sonic Screwdriver” project which, as explained by the CIA, is a “mechanism for executing code on peripheral devices while a Mac laptop or desktop is booting” allowing an attacker to boot its attack software for example from a USB stick “even when a firmware password is enabled”. The CIA’s “Sonic Screwdriver” infector is stored on the modified firmware of an Apple Thunderbolt-to-Ethernet adapter. “DarkSeaSkies” is “an implant that persists in the EFI firmware of an Apple MacBook Air computer” and consists of “DarkMatter”, “SeaPea” and “NightSkies”, respectively EFI, kernel-space and user-space implants. Documents on the “Triton” MacOSX malware, its infector “Dark Mallet” and its EFI-persistent version “DerStarke” are also included in this release. While the DerStarke1.4 manual released today dates to 2013, other Vault 7 documents show that as of 2016 the CIA continues to rely on and update these systems and is working on the production of DerStarke2.0. Also included in this release is the manual for the CIA’s “NightSkies 1.2” a “beacon/loader/implant tool” for the Apple iPhone. Noteworthy is that NightSkies had reached 1.2 by 2008, and is expressly designed to be physically installed onto factory fresh iPhones. i.e the CIA has been infecting the iPhone supply chain of its targets since at least 2008. While CIA assets are sometimes used to physically infect systems in the custody of a target it is likely that many CIA physical access attacks have infected the targeted organization’s supply chain including by interdicting mail orders and other shipments (opening, infecting, and resending) leaving the United States or otherwise. UK Terror Act

● Masood, aged 52 (Dec 25, 1964), was born in Kent and detectives believe he was most recently living in the West Midlands. Masood was also known by a number of aliases. Masood was not the subject of any current investigations and there was no prior intelligence about his intent to mount a terrorist attack. However, as the Telegraph reports, he was known to police and has a range of previous convictions for assaults, including GBH, possession of offensive weapons and public order offences. His first conviction was in November 1983 for criminal damage and his last conviction was in December 2003 for possession of a knife. He has not been convicted for any terrorism offences. More details from the Police statement: Masood was not the subject of any current investigations and there was no prior intelligence about his intent to mount a terrorist attack. However, he was known to police and has a range of previous convictions for assaults, including GBH, possession of offensive weapons and public order offences. His first conviction was in November 1983 for criminal damage and his last conviction was in December 2003 for possession of a knife. He has not been convicted for any terrorism offences .

● A video has emerged of Westminster Bridge on Wednesday, March 22 showing the moment a car was driven into pedestrians earlier in the day in the worst attack in London since 2005. Five people were killed and about 40 injured after a car plowed into pedestrians and a suspected Islamist-inspired attacker stabbed a policeman close to Britain’s parliament. The dead, in what police called a “marauding terrorist attack,” included the assailant and the policeman he stabbed. The other three victims were among those hit by the car as it sped across Westminster Bridge before crashing into railings just outside parliament. It was the deadliest attack in London since four British Islamists killed 52 commuters and themselves in suicide bombings on the city’s transport system in July 2005, in London’s worst peacetime attack.

● It has become a familiar pattern: days, if not hours, after a terrorist attack takes place somewhere in the world, the Islamic State promptly takes responsibility for said attack, and the London car attack was no different, because moments ago the Islamic State, through its Aaamaq news agency, claimed responsibility for the attack that killed 4, and said that the London attacker was a “soldier of the Islamic State” and adds that the “attacker responded to call to attack countries of the anti-ISIS coalition.”

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