Episode 04: Scorched Earth Budget

President Trumps bait-and-switch. Plus, a GOP assault on class action lawsuits, and the future of Medicaid. Subscribe to Off-Kilter on iTunes.

President Trump released his first budget, which proposes dramatic cuts to nutrition, housing, job training, legal services, and more. Meanwhile, Republicans have declared war on a critical tool for enforcing legal rights and protections: the class action lawsuit. Sharon Dietrich, a longtime legal aid lawyer and class action litigator, joins to unpack what these proposals would mean for access to justice. Next up, the latest shoe to drop in the GOP’s efforts to repeal the Affordable Care Act was a letter quietly sent to governors that does not bode well for the future of Medicaid. But first, Harry Stein, the Center for American Progress’s beloved budget guru, joins Rebecca and Jeremy to walk through the winners and losers of Trump’s budget.

This week’s guests:

Harry Stein, Center for American Progress
Jane Perkins, National Health Law Program
Sharon Dietrich, Community Legal Services

For more on this week’s topics…

A deep dive into the GOP legislation taking on class actions.
The implications of the Trump Administration’s plans for Medicaid (hint: they’re devastating).
How President Trump’s budget hurts his own voters the most.

This program was released on March 16, 2017.

Transcript:

REBECCA VALLAS (HOST): Welcome to Off-Kilter, I’m Rebecca Vallas. This week, President Trump released his first budget, which calls for deep cuts or even elimination of a whole range of programs that serve low and moderate income Americans. One of the programs that would zero out entirely is the Legal Services Corporation. What that and other Republican efforts to curtail access to justice would mean for low income communities. Meanwhile, the next shoe to drop in the GOP war on Medicaid was guidance that the Trump administration quietly sent to governors this week. But first, Harry Stein of the Center for American Progress, our budget guru makes his ‘In Case You Missed It’ debut to walk me and Jeremey through the so called ‘skinny budget’ released this week. Harry, thank you so much for joining the show.

HARRY STEIN: Thank you, good to be on.

VALLAS: You’re all smiles! Why are you so smiley?

STEIN: It’s Friday!

[LAUGHTER]

VALLAS: Thanks for giving away when we’re taping.

STEIN: I literally have been asking, I couldn’t remember what day of the week it’s been all week. It’s been one of those kinds of weeks.

VALLAS: Well the answer weeks like this is it’s ‘Blursday’, every day. That’s what I’ve taken to saying now, it saves me embarrassment. But Harry, I’m going to take a guess as to why you’re all smiles. And I think it might be because how ridiculous Donald Trump’s first budget is, that he just put out this week. Is that why you’re all smiles?

STEIN: It’s, yeah. This is pretty nuts. Usually you see these budgets from a new administration and they’re at least actually budgets. They’re new, so they’re not necessarily quite so detailed but there’s at least something that says what’s your plan for the tax code, what’s your plan for Social Security and Medicare. They say nothing on these things and it’s just you know, a few things on discretionary programs and I mean really frightening stuff. People have been calling it a skinny budget, it’s more of a starvation budget both because it’s really, really skinny and also because it tries to starve people.

VALLAS: Quite literally. And it actually, we should start there. It makes huge cuts to the U.S. Department of Agriculture and to a range of nutrition programs. Perhaps the one getting the most attention this week is Meals on Wheels.

STEIN: Right. Meals on Wheels gets funding and there is private money that funds Meals on Wheels but a lot of people don’t realize Meals on Wheels gets a lot of federal money. And this is not just a program, of course it’s about food, it’s also for a lot of people that receive Meals on Wheels, this is like, if they’re homebound a really important way to just check on people and make sure that people are doing alright.

VALLAS: And companionship.

STEIN: And companionship. And you know, what we’re hearing out of the White House is there’s no evidence that these programs are effective. Well, two things. First of all, they’re wrong. There is great studies that these programs are effective across a whole range of health and wellbeing and economic outcomes. But second, I’m not entirely sure how the White House defines food as effective. There’s hungry people and they get fed and they wouldn’t necessarily get fed otherwise. So I don’t know how Mick Mulvaney defines success at the dinner table, but when I eat and I was hungry before I consider that a success.

JEREMY SLEVIN: He was also asked, this is Jeremy, I’m here too by the way.

VALLAS: Hi Jeremy.

[LAUGHTER]

VALLAS: Feeling the need to make your presence known as usual.

SLEVIN: He was also asked about after school programs for kids. And he says, “Oh, I’ve looked into that and there is no evidence that that improves their test scores.” It’s not just about test scores. A, it does improve their test scores, it’s totally wrong, and also that’s not the point. Like, getting people meals and getting people after school programs is an end in itself.

STEIN: Can you imagine being Mick Mulvaney’s kid? And, I don’t know how he defines; again, do you not get lunch or something? Does he run testing with this like some days you get lunch and some days you don’t and if your test scores don’t improve —

SLEVIN: So your SAT score isn’t high enough no dinner for you. Like what kind of draconian idea of a budget is that?

VALLAS: I actually sort of feel like this is shown us a lot about not just Mick Mulvaney but also Sean Spicer, by the way. Who in a briefing also said similar things to that. Specifically about Meals on Wheels not having any evidence that it helps people. But I think what this has uncovered is apparently everybody in the Trump administration, they actually donate food. I think what they’re doing is they’re eating Soylent, right? [LAUGHTER] Now we’ve found the target population; it’s not just Silicon Valley anymore, it’s the Trump administration. [LAUGHTER]

STEIN: I mean, it’s getting weird. It’s getting weird.

SLEVIN: One last on the Meals on Wheels. So the program, their whole thing is oh, this is part of a block grant, we’re not really cutting Meals on Wheels. The states can fund Meals on Wheels but this block grant doesn’t work. I looked up the block grant. So they’re getting rid of all community development block grants. Eliminating it entirely.

VALLAS: Which does a lot more that just Meals on Wheels.

SLEVIN: Exactly. It funds housing assistance, it funds a whole host of anti-poverty programs. I looked it up, the Housing [and] Urban Development department said how many jobs it creates. It’s something like 17,000 jobs every year because this is funding so many different services. So it’s not effective it’s not; A, people are getting fed. That’s an end in itself. B, it’s creating jobs. How do you define effective?

VALLAS: I also want to throw in one other nutrition program that’s mostly flying under the radar despite huge cuts because Meals on Wheels is getting so much attention because it’s so well-known and that is a program that provides nutrition assistance to women, infants and children, it’s often called WIC because of who it helps. We are literally talking about a program that provides infant formula, infant formula! I would really love to hear Sean Spicer and Mick Mulvaney tell me that it’s not effective to make sure that infants have formula.

SLEVIN: Well, you know, is it getting them back on their feet and into a productive job. That’s the question. If they’re not working, they’re just untapped dormant assets.

STEIN: Those babies need to lift themselves up by their bootstraps.

VALLAS: By their bootie-straps, yes. [LAUGHTER] Which is a great segment into looking at some of the other cuts in this budget. So another program that maybe doesn’t get a ton of attention but I would really love to highlight is something called LIHEAP, the Low-Income Home Energy Assistance Program. And that’s kind of a mouth full but it really does is it helps low-income people afford heating oil and to pay their heating costs in the winter. I mean, that’s the short version. So is it too much, Harry, to say that Trump’s budget is literally leaving struggling families out in the cold?

STEIN: Out in the cold, or potentially out in the heat. When it’s summer and people need air conditioning, and we see this, you know, all over the country at times where there’s heat waves. I mean this is legitimately people died when there is a heatwave and they don’t have air conditioning.

VALLAS: Particularly seniors.

STEIN: Yeah. And you know this is something also, it’s important across the country but it’s particularly important regionally in the northeast and the midwest. And particularly in the midwest, I mean a lot of these are people that or communities that may have voted for Donald Trump and a lot of them didn’t too. But this is really walking away from a lot of the people who thought that Donald Trump was going to be different.

VALLAS: Well, we should talk a little bit about that because that’s actually something that a lot of folks have looked into since the budget was released. And the consensus seems to be that the populations who are going to be hit the hardest by Trump’s cuts are rural and small town counties. Actually, the counties that went overwhelmingly for Trump. And as you just pointed out, these are folks who were not voting for taxes cuts for the wealthy and for corporations. They were begging, please help improve my economic circumstances, bring back my job or save my job like you promised. But those are the communities that are going to be hardest hit. Trump even goes so far as to eliminate a program, really an entity called the Appalachian Regional Commission whose entire job is economic development in that region.

SLEVIN: It’s not just the Appalachian Regional Commission, which of course was a community that supported him. A rural community with high levels of poverty. If you look at the Legal Services Corporation which you know intimately.

VALLAS: And which we’ll be talking about later in the episode.

SLEVIN: So, for example they fund representation for low-income people, whether it’s domestic violence cases or housing cases. That’s really important in rural areas where there is not as many lawyers that you can turn to. A lot of these programs are even more important in areas where there’s not as many private sector services.

VALLAS: And Trump eliminates the Legal Services Corporation altogether. Eliminating all federal funding for the help that people need to get lawyers.

STEIN: You know, I saw that apparently the way that the White House budget office put this together was they said, well we listened to all of Trump’s speeches and we put the budget together based on that. You know, I don’t know, that’s an interesting way to put together a budget but also, I think a lot of people heard a very different set of Trump speeches than what apparently what the White House budget office heard and what apparently Trump heard himself saying. You know people heard Trump saying that he was going to invest in infrastructure. Well this budget makes huge cuts to infrastructure programs. People thought they heard Trump saying that I care about child care. Well this budget probably makes huge cuts to child care programs. People heard Trump saying everybody’s going to have health insurance. Well, just we also see this week or maybe it was last week the Congressional Budget Office comes out. Their health care bill takes health insurance away from 24 million people. And Trump’s apparently fine with that. So I don’t know what speeches Trump thought he was giving and what people at the budget office thought they were listening to. But I think a lot of those voters were listening to very different speeches from the president.

SLEVIN: I was wondering why there was increased funding for punching protesters in the face. [LAUGHTER] I was like that’s a strange line item.

VALLAS: That’s one of the rare increases we saw.

[LAUGHTER]

SLEVIN: The rare increases, yeah. 54 billion for the pentagon and punching people.

STEIN: Law and order.

VALLAS: So I also want to get into another particularly egregious set of cuts which is a huge, huge 20% cut to the National Institutes of Health, NIH. And what they really is, summed up, is a big middle finger to cancer research, medical research, a lot of which actually is job creating, I might add, just like infrastructure. But which is, what message does that send?

SLEVIN: Job creating and life saving.

VALLAS: Well this is where I was going. What message does that send to the family who has a mother with cancer, right? And particularly after bipartisan support for something called the CURES Act, which is all about trying to spur medical innovation and to speed along medical research.

SLEVIN: And I think it’s just part of a broader attack on science and intellectuals and research overall. It’s saying that we don’t need your knowledge and information. And another example of that is them saying, they were asked, why are you defunding the EPA by huge amounts and basically eliminating funding for climate change? And they said, well Trump said in his speeches that’s not something we think we should be prioritizing.

STEIN: Right, I think just very little regard for this stuff. And it’s amazing, you know, over the last several years we’ve had these really extreme budget cuts; there’s been a lot of austerity in this part of the budget that Trump is cutting, broadly known as the non-defense discretionary budget. But to translate that, that means things like medical research, infrastructure, education, low income programs, things like that, a lot of public investment. There’s been a lot of cuts in that area over the last few years, it’s been a big concern here. And one of the few places where Congress, despite very low overall allocations has consistently said, no we are going to keep providing more resources because this is important is NIH. And by the way remember, because it’s limited funding that means worse cuts elsewhere. But congress has been willing to stand up for NIH. This is a huge cut and it’s going to be interesting to see you had members of congress who used to care about this stuff. But do they still care or are they just going to follow Trump?

VALLAS: And you’ve already started to see some Republican members of congress say that one piece of this proposed budget, the NIH cuts, are something they can’t stand for. So maybe a wedge issue to watch because of how unconscionable and inhumane it is on top of the Republican healthcare plan that apparently isn’t too unconscionable or inhumane for most of them. But another piece I think we need to focus on back to your point, Harry, about which speeches were people listening to. I think I listened to more of Trump’s speeches than I would like to admit. And certainly more than I’m happy happened, right, in my life. But a recurring theme was his pledging to fight for left behind communities. His first tweet when he actually learned he had won the presidency which frankly, I don’t he expected to win, but hey, he’s here now, was he said he was going to dedicate his presidency to the forgotten man and the forgotten woman. And it’s just really hard to sort of, whitewash that and then to look at a budget like this that literally puts a target on the backs of the very communities that he promised to help.

And I want to get a particular agency and a particular area of spending which is the Department of Labor and then job training. Because not just a recurring theme but I think the core and maybe only policy that Trump mentioned throughout the campaign was his promise to save jobs and bring back jobs. And yet he cuts a whole slew of job training programs and even proposes to close Job Corps centers. Harry what are we looking at here?

STEIN: You know, I haven’t heard anything from the administration, maybe I’ve missed it but I haven’t heard anything from the administration about how this is doing anything to create jobs. I don’t know what their theory is but they’re taking away job training, they’re taking away infrastructure, medical research, community development programs, things that are directly for communities left behind, the Appalachian Regional Commission, Community Development Block Grants. And by the way Community Development Block Grants, if you’re someone that says, “yeah, I’m all for reinvestment but those guys in Washington don’t know what they’re doing.” Have I got a program for you.

CDBG basically just sends money to states and localities for locally driven decisions. It’s very wide open. It’s called a block grant, we’ve talked about this in other contexts where it’s probably not a good idea to just have that kind of a fixed allocation. But this is a totally, almost completely flexible allocation that lets states and localities, a lot of times in left behind areas figure out what’s the best way to move forward. And they’re zeroing that out, so for all that we hear, you know, when we’re talking about health care; “well, we just block grant Medicaid, block grants are the solution to this,” well, when they get actual block grants they just turn around and zero them out. There’s not a theory here, it’s just we don’t like any of this stuff. We’re not interested in helping people. We just want to shrink government and give the wealthy tax cuts.

VALLAS: It’s a really, and I want to come back to the tax cuts to the wealthy because I think it’s important not just to talk about losers but who the winners are here, right? If we’re asking questions about what this budget means in terms of priorities. But I also want to unpack one of those points. Which is I find it so important that everyone understand what’s really sort of a sneaky sleight of hand here, right? You’ve got Trump now joining a pattern we’ve seen among congressional republicans led by Paul Ryan in proposing to convert everything into a block grant in the name of flexibility and state and local control. And then at the exact same time, point to existing block grants and saying, “Well look, there’s no evidence that this helps everybody, it’s just a slush fund, let’s eliminate it.” Because by the time you’ve block granted it, you’ve starved it, you’ve made it less effective and you’ve actually made it into a program that fewer people know what it does and the Community Development Block Grant is a great example.

STEIN: And you also take away responsibility from yourself. When you’ve got a program like SNAP for instance, like food stamps, where that program works directly to support nutrition assistance. When you make a cut it’s very clear somebody who was getting nutrition assistance isn’t getting it anymore. It’s different when you cut Community Development Block Grants. It depends on what the grantees are doing, what the states and localities, how they respond. Some of them might be able to find the funds elsewhere, some of them might just decide to zero out the things that they were doing, but you’re basically saying, “we’re fine with making cuts, and the buck stops somewhere else.” They can decide what to actually do about that.

VALLAS: There’s a tremendous amount of opacity. And a lot less accountability. So Jeremy, who are the winners in this budget?

SLEVIN: So I think if there are winner they are A, defense contractors, the giant plus up in funding for the Department of Defense. Much of it will go to probably off-site contractors. There’s been a slew of corruption scandals at the Pentagon already. And as you eluded to before, I think the wealthiest people in this country. Because while the tax cuts may not be explicit in this budget, they are implicit. This is the opening bid in a long term effort to shift where our country prioritizes resources from the middle class and low income folks, to the people who have had the most success and gotten most of the wealth in the past 30 years. This is paving the way for a multi-trillion dollar tax cut that is going to benefit giant corporations and the wealthiest. And Harry, this is something you’ve been researching and you always make this point. How these things are intrinsically linked. In fact you can’t have one without the other.

VALLAS: And Harry, important I think Jeremy’s point about who these are implicit. But of course, this comes on the heels of the Republican health care proposal which itself is a trojan horse for tax cuts for the wealthy.

STEIN: That’s right. I mean, the basic theory behind that bill is make it harder for people to buy insurance, take insurance away from 24 million people to finance a tax cut for the wealthy. You know I think what Trump; it’s true of Trump but I think it’s been true of sometime, is this is not a debate about large government versus small government. Trump’s skinny budget doesn’t make government any larger or smaller. Pluses up defense $54 billion, reduces domestic and international programs by the same amount. And we see that on health care. This isn’t about again, you know making government smaller, it’s about giving people tax — using fiscal power to give people tax cuts instead of health insurance. And that’s I think the big question. It’s not is government going to be larger or smaller. What Trump clarifies is who is government going to work for. Does government exist to funnel resources to the wealthy? To help protect the wealth of people who are already super rich and give them even more wealth? Does it exist to funnel more wealth to defense contractors without regard for how can we find more efficiencies in the defense budget as it stands now? You know if you’re somebody who likes people to do jobs for you and then you don’t want to pay them, this is a great budget for you. 21% cut to the Department of Labor means less enforcement of wage theft. Of course if you’re somebody who’s being cheated by your boss, bad for you but great for your boss to more easily cheat you. This isn’t about big or small government. This is just about reorienting a government so it works more for people like Donald Trump and his cabinet and the people that donate money to Republican campaigns.

VALLAS: So no longer do we have to ask the question of will Trump keep his promises, he has made abundantly clear who he’s fighting for and it’s not the forgotten man and the forgotten woman. Harry Stein, the budget guru as I like to call you at the Center for American Progress. Jeremy Slevin, the “Slevs”. Thank you so much for joining to unpack —

SLEVIN: That’s my title, by the way.

VALLAS: It is your actual title, it’s on your business cards, I know because I ordered them. And that does it for this week’s “In Case You Missed It.” Don’t go away, next up, what those legal services cuts actually mean, how they will play out in communities across this country and the Republican war on class actions. Stay tuned.

[MUSIC]

VALLAS: You’re listening to Off Kilter, I’m Rebecca Vallas. Trump’s budget would zero out a whole range of entire agencies that administer programs for low and moderate income Americans, including the Legal Services Corporation, which helps people facing eviction, foreclosure, domestic violence and more get legal representation that they otherwise wouldn’t be able to afford. Meanwhile, Republicans in Congress are quietly waging war on access to justice in another way. By cracking down on class action lawsuits. With me to unpack what these LSC cuts and class action erosions could mean for low and middle income folks in this country is Sharon Dietrich, she’s the litigation director at Community Legal Services in Philadelphia. Also, lovingly known as my former boss and big sis. Sis, how you doing?

SHARON DIETRICH: I’m doing well Rebecca, thank you for having me on the show.

VALLAS: I should say for folks who are newer listeners to the show, you’re not actually my biological sister but you may as well be. Because you taught me almost everything I know.

DIETRICH: True that.

VALLAS: And you’re also pithy, like no one I know. So Sharon, just to get right into it, so you are a legal services lawyer. That’s what you do, it’s what you’ve done for decades. A lot of people aren’t familiar with the Legal Services Corporation. What is LSC and what is civil legal aid?

DIETRICH: So, a lot of people may think that for low and middle income people, getting a lawyer is mostly about things like personal injury. And while that is an important need for a lawyer, if you have a personal injury or an accident, what we do in civil legal aid is very different. We basically help people who have legal problems related to basics of life. So for instance, if you don’t have any income because you’re being kept from having access to a job or you’re trying to keep your job, maybe you need an expungement of your record, you can’t get unemployment benefits, you can’t get disability benefits.

If you need health benefits because you’re having a health crisis and you need to qualify for Medicaid or Medicare and for some reason those benefits are being withheld from you, you need necessary medications. If you have a disabled or elderly relative who needs care, who is being illegally discharged from a nursing home. If you’re in housing and you’ve being wrongfully evicted or you’re being foreclosed on or if you’re trying desperately to preserve your family such as a domestic violence situation, a custody case or the child welfare system is involved in your family. Those are the sorts of things that we deal with in legal aid. And so they really get to the heart of very basic and emergency needs that low income people have.

VALLAS: So the Legal Services Corporation is the source in this country and in Washington of federal funding to do all the things you were just describing. Now you’re actually not an LSC funded program for somewhat complicated reasons. Because there are programs in this country that don’t receive federal funding. But for the most part, in most communities across this country, if you can’t get access to a lawyer through an LSC program and you can’t afford a lawyer on your own, people end up needing to go without. I’m curious if it’s fair to assume that this is going to hit rural areas particularly hard.

DIETRICH: Oh, absolutely. So as you noted Rebecca, I work in Philadelphia, and at least in a big city like Philadelphia there are other free resources. Not nearly enough to meet the need. But there are some. There are law schools, there are pro-bono lawyers, which means people who take cases for free even though they’re not legal aid lawyers. There are sources. But in rural areas, there tend not to be. And the Legal Services Corporation funded programs which exist in every community in this country, they’re the only source of legal help for the type of problems that I mentioned.

VALLAS: Now, the Legal Services Corporation already before Trump has even put out his budget, before he had even put out his budget had a fairly low amount of money it was receiving from Congress. So much so that people are already having to go without help even though they are able to find these legal services programs, get through those doors and ask for help. How bad is it before these cuts even go into effect?

DIETRICH: Words cannot describe how bad it is. But maybe I can give you some statistics landlord tenant court in Philadelphia that will at least help illustrate the woeful inadequacy a little bit. So, there was a study done here of our landlord tenant court last year. And what we found was that 81 percent of landlords were represented by lawyers, while only about 8 percent of tenants were represented. And of that the 100 percent of cases, only 1.45 percent were represented by a legal aid attorney. Now what the studies have also shown is that if you are not represented as a tenant in landlord tenant court, you usually lose. Almost always lose. National studies show that if you are represented, you are far less likely to be evicted. And when you put yourself in the place of somebody who is facing eviction, it’s very clear what the stakes are. You could become homeless. You could have to move in with your overburdened relatives. You could have to lose all of your stuff because there is nowhere to put it. So there’s not enough legal aid to help in that system and many others right now. So eliminating what little exists would really mean that the cases that we tend to take, the most severe cases with the highest stakes, they would have to go without a lawyer. And in most cases, unfortunately lose because of that.

VALLAS: And I think it’s probably fair to say that Trump is not a big fan of preventing homelessness. In fact, this budget also would eliminate the U.S. interagency council on homelessness, along with zeroing out and massively cutting a whole slew of affordable housing programs that help people access and pay for, for shelter and have a roof over their heads. But he does seem to be a fan of jobs. He certainly likes to talk a lot about saving jobs and bringing back jobs and even in his first joint speech before congress, ballyhooed for minutes about what he complained was a too low labor force participation rate. Now you’re an employment lawyer and you’ve been an employment lawyer for a long time. I’m curious, your thoughts about the consequences for cutting access to employment lawyers like yourself when it comes to people who want to work.

DIETRICH: It’s counterproductive. Because again, it means that people who really are trying and want to put their best foot forward and just need a little legal assistance to do that are not going to have access to that. So I think maybe, the representation we do on expungement across the country. There are growing numbers of legal aid lawyers who are doing expungements and they’re doing most of the expungements that are represented around the country of expungements of criminal records. If you don’t have a lawyer to do that very technical proceeding, which is not that complicated for lawyers but is awfully complicated for non-lawyers just in terms of the information that you need to put in a document that you file. Without that, it may mean that employers are not going to hire you, and as you and I both know, there are vast numbers of people in this country who have criminal records. So eliminating the LSC funded lawyers who do this work really stands in the way of people getting back into the labor force.

VALLAS: One in three Americans, to put a number to it. So, I want to segway a little bit into the second part of our conversation, focusing more on class actions and what Republicans would like to do to them. Spoiler, it’s not to increase access. But before really talking about that piece of legislation that Republicans are currently seeking to ram through congress, I want to back up and ask you as someone who is a litigator and who brings class action cases on behalf of low income people and marginalized and often discriminated against populations. What is a class action lawsuit, and how is it a tool used by poverty lawyers like yourself?

DIETRICH: So a class action is a lawsuit in which you have one or a couple of people who represent everybody else who has the same legal problem and tries to get a result that will help everyone, not only themselves. So, some examples of situations where you might have that would include consumers who are harmed by some standard practice of a company, employees who all have been turned down, or would-be employees, job applicants for a particular practice. People whose civil rights are violated. Situations where the government has not followed the law. And lawyers like me are trying to accomplish two things in those cases often. First of all, we’re trying to get money for the people whose rights were violated and deserve compensation. But even more importantly, we’re usually trying to get in legal aid at least, our primary goal is to get practice changes. So that where the government is not following the law, they agree in the future to follow the law. That is very hard to do when you file for a single person or even a couple of people but if you file for a class, that is much more likely to be the outcome of a lawsuit.

VALLAS: Can you maybe give us an example of a case that you’ve brought that a class action was the right way to try to bring systemic relief like you described?

DIETRICH: Absolutely. So, just cases I’ve brought, I’ve often sued background screening companies who do a poor job of reporting people’s criminal backgrounds accurately. So, for instance, many of the background screening companies report cases that have been expunged, even though they no longer exist in the public record. So, we’ve sued those companies both to get a little bit of compensation at least, and to get them to fix it going forward. Again, so people can get jobs is our primary goal there. Another example is that I once sued the Philadelphia police department, years ago, because they had a so-called psychological examination that they gave to applicants for the police department and this examination really predicted virtually nothing of any importance, it did not predict whether or not someone was psychologically fit, and it did have a racial disparate impact on African-American applicants. So, we settled that case for a couple hundred applicants to the police force getting jobs, and some of those people today are very high ranking members of the Philadelphia police department because they were obviously very strong candidates to be police officers. So, other types of cases that we’ve filed include things like wage cases where a whole bunch of people have not been paid their wages, we have sued the welfare department where they collect child support but don’t return it, necessarily, to the families they collected it for. We had a very well known case entitling disabled children to SSI benefits years ago that went to the United States Supreme Court. So that’s a couple of examples of real life class actions that my program has been involved in.

VALLAS: Now, Republicans have introduced legislation that they’re calling, in true Republican messaging form, “The Fairness in Class Action Litigation Act of 2017.” It sounds like it has roses and puppies and cake probably embedded in the legislative language with a name like that. And they claim that what it would do is to crack down on what they call lawyer driven litigation. Litigation that they alledge is all about helping lawyers get rich as opposed to advancing their plaintiffs interests. Is that a fair criticism, and if that’s not what this bill is actually about, what do you think the real agenda is?

DIETRICH: So, I don’t want to say that an opponent of class actions couldn’t find a few cases to put out there to say, “Look, the result here was not that good. And the lawyers really profited.” You know, there are some cases in which that is the case. But the changes that are being proposed are not going to specifically keep those outcomes from happening. They’re basically going to nickel and dime the legal avenue of bringing a class action so that people can’t bring them. People like me can’t bring them, who are, you know, I don’t get a dime personally out of a class action lawsuit. It all goes to my clients and to my program if there’s a little bit of an attorney fee that comes out of it. But these technical changes that they’ve put into the class action bill to make it harder for lawyers to get paid, to make sure that everybody’s case is exactly the same, you know, where they can’t be part of the class, it sounds maybe harmless enough but that’s not at all the impact it’s going to have. The idea here is that they’re trying to keep class actions from being brought. And Rebecca, what I find really ironic here is that in most of the world, we try to make things more efficient all the time. How can you do a whole bunch of things once? But here, what is basically being done is that they want people to sue one at a time because they don’t want people to get their rights enforced. They want them, they want fewer than all the people, they want a small percentage of the people whose rights have been violated, maybe, to get an outcome that is appropriate. So, that is why this is such a bad idea, this particular piece of legislation.

VALLAS: And we should go into a little bit of detail about how it actually makes it hard for people to bring class action cases, for lawyers like you to bring class action cases. One of the pieces of this legislation, this fairness, alleged fairness in class action, I think we should rename it. The ‘unfairness in class action act’, but one of the things it does is to make it harder to bring people together as a class. Something that lawyers like you have to actually prove, that you have to prove certain things about the people who are part of the class. That they have suffered the same type and scope of injury for example. That’s one of the pieces of this legislation. And another is that the bill would also peg attorney’s fees in certain types of class action cases to a reasonable percentage of the value of the relief, something that could be incredibly hard for courts to do when we’re talking not about cases that are about money, but cases that are about changing the behavior of bad actors like companies that don’t have accessible buildings for people in wheelchairs or the like. But I’m curious to dig in a little bit to that first part about same type or scope of injury. Why that’s an important part of class action process and what making that burden higher would mean.

DIETRICH: Yeah, we see defense lawyers in class actions already trying that strategy. They’re just trying to give the strategy more ‘oomph’ in this bill, basically. What they want to say as a strategy is every class member has to look exactly alike. They have the same experience, exactly the same experience, they have to have exactly the same outcome, and if they don’t then they can’t band together to bring a class action. And that was not the idea behind class actions when they were first conceived of. The idea was that if there is one policy that is basically making things illegal for a whole bunch of people, it doesn’t matter if they aren’t all exactly the same. So, you know, if there is an access barrier and it’s different for people in wheelchair than it is for people who maybe are sight impaired, you know, as long as it’s having the same impact they should be able to join together in the class action. But these rules are trying to make it impossible so the lawyers throw up their hands and don’t file the class action to start with. Or if they do file the class action, the judge will throw it out of court.

VALLAS: Do you see this, in the last minute or so that I have with you, do you see this as part of the same agenda that includes eliminating legal services funding?

DIETRICH: Oh, absolutely. The idea is to minimize the ability of lawyers who are trying to right wrongs from being able to access the courts. So, I think it’s certainly true that the elimination of LSC funding would save money. But there’s also been a long term LSC defunding agenda to get rid of people who help poor people in the courts. And that’s been going on since certainly since President Reagan.

VALLAS: Make America great again, say it with me Sharon. My sarcasm is I’m sure audible and possibly even visible through the radio waves. Sharon Dietrich is the litigation director at Community Legal Services in Philadelphia. Sharon, thanks so much for joining Off Kilter.

DIETRICH: Thank you for having me.

VALLAS: Next up, the Republican war on Medicaid continues. Stay tuned.

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VALLAS: You’re listening to Off Kilter, I’m Rebecca Vallas. With Republican efforts to repeal the Affordable Care Act continuing to move through congress, the Congressional Budget Office just this week released their official estimates on the bill’s winners and losers. The verdict? 24 million Americans would lose health insurance by 2026. Meanwhile, flying largely under the radar, is a letter that Trump’s head of the Centers on Medicare and Medicaid services, known as CMS, sent to governors just this week about the Medicaid program. To unpack what it means for the future of Medicaid, and the millions of individuals and families who rely on Medicaid for health insurance and more, I’m joining by Jane Perkins, she’s the legal director of National Health Law Program, known as NHELP. Jane, thanks so much for joining Off Kilter.

JANE PERKINS: You’re quite welcome.

VALLAS: So Jane, I want to cut right to the chase, what was in that letter? Give us a rundown.

PERKINS: I’d be happy to. I think your observation that it’s flying under the radar is right on target. It doesn’t even have a date on it so you know that something’s kind of quietly going through when you won’t even say when you’re doing it. This is a letter that, as you pointed out, CMS, Centers for Medicare and Medicaid Services sent to the governors. And it’s basically telling the governors what the administration’s road map for Medicaid is, regardless of what happens with the American Health Care Act. I have trouble articulating that name of that bill.

VALLAS: In part because it’s the opposite of what it actually does, right.

PERKINS: Much of what’s in it is not a surprise, because it’s things that some Republican governors have been saying for years. But what it is seeking to do is to give states a great deal more flexibility than they already have, and they already have a great deal of flexibility in how they operate their Medicaid programs. And it would allow states to get permission to make these changes to their Medicaid programs quickly. And it would allow them to make changes that are dramatic. There are things that have not been allowed in the entire history of the Medicaid program, and Medicaid has been around since 1965. Things like work requirements, things like premiums that if you don’t pay, you’re locked out of the program. And that’s kind of a difficult ask for a low-income person who qualifies for Medicaid by definition because they don’t have enough money to meet the necessities of life. Food, clothing, shelter and now you’re asking them to pay a premium for health care.

So, those are just some of the things in the letter. We can talk maybe a little bit more about them as we go through here today but the bottom line is that the administration wants to allow states more flexibility to do things with their program. I would also say that when you read the letter, it has nice language in it about innovation and achieving positive outcomes, but let’s not forget that congress is sitting in another building in Washington, DC, and has in front of it a piece of legislation now that the Center on Budget and Policy Priorities has estimated would require states to cut about $370 billion dollars, I think I have that right. Could be 270. But we’re talking billions here, people. From their Medicaid programs over the next ten years. So, while this is couched in words like ‘positive health outcomes’ and ‘flexibility and innovation’, the writing’s on the wall that what this would be opening the door to do would be to cut eligibility, to cut services and to cut provider payment rates.

VALLAS: And let’s dig a little bit into that. So you’ve used the word flexibility a few times, and it’s a word that Speaker of the House Paul Ryan likes to use a lot. It’s a favorite word among conservatives. And it’s often paired with state and local, ‘state and local flexibility.’ As if this is the best thing since sliced bread and apple pie. But what it really is code for, if I’m understanding you correctly, is flexibility to cut people off of Medicaid in their states in ways that under previous administrations, even the most conservative Republican governors, were told they weren’t allowed to do under the federal Medicaid requirements. Am I getting that right?

PERKINS: That’s right, and just a couple of observations about that. I actually am a, maybe it’s my southern roots, I’m a believer in the notion that good things can come from the local level. And there can be efficiencies that are created at the state and local level. But what we’re talking about here is health care. And there is something that doesn’t quite ring true when you’re talking about states meeting the needs of their population in different ways with health care because we have national standards of care. We don’t have community standards of care anymore. We know the kinds of immunizations that children need. We know the kinds of services that individuals with behavioral health care need. We know the kinds of care that people with HIV/AIDS need. That people with hepatitis C need. This isn’t the kind of things where you have variation, you should not have variation or need variation in treatment or flexibility among services because we understand at a really almost worldwide level what our standards of care are in health care.

The other thing I would say about this is there’s, I think in addition to the points that you made, these concepts of federalism creep into this. That this is a state’s rights issue. I don’t think that’s correct here at all. Well, maybe saying at all is a little bit of an overstatement. But I don’t think that’s correct here because when you think about federalism and state’s rights, the idea under the 10th amendment to the constitution is that what has not being expressly delegated to or by the federal government is left to the states. And that’s as it should be. But with Medicaid, congress has passed a comprehensive, detailed piece of legislation that has some mandatory requirements in it. And so the duty of the secretary is not to use a federalism states’ rights framework, but rather the duty of the secretary is to implement the statute as congress has enacted it. So the notion of this flexibility would need to be a fairly narrow one. Because in many parts of Medicaid, congress has already set forth how it should work. Just to give one example from this letter.

One of the things that the federal government is telling states that they’ll now be able to do is to expand options to impose co-payments on the use of emergency rooms. And it’s getting at the idea of discouraging people from using emergency rooms for non-emergency care. Co-payments is the most heavily, one of the most heavily studied aspects of Medicaid. There have been experiments on co-payments over the years. The research, both in terms of Medicaid and private insurance has heavily looked at co-payments and the conclusion is always the same. It’s always the same, and it’s redundant. When you impose co-payments on low-income people, they will forgo both necessary and unnecessary care. And that makes sense. It’s because they can’t afford to co-payments. So congress, in the Medicaid act right now, as it sits today, has addressed the question of imposing co-payments on emergency room visits. And it says to states, “you have the option to set a co-payment for non-emergency use of the emergency room, but there have to be protections in place.” There have to be actual alternatives in the community available to the person that they can use, and you have to, and they have to know about them and be able to use them. So it’s a comprehensive option that states already have the flexibility to use, so why would you need additional flexibility?

VALLAS: And Jane, you mentioned work requirements before and I want that not to get lost as well because I think it, as you’ve laid it out, it’s readily understandable that raising costs on low-income people to access care is going to make it harder for them to access care. But another piece of this that is buried in this so-called flexibility to states is the opportunity, the option to require people to actually work in exchange for their health care. And tell me a little bit about how that’s something that CMS can do and can permit without legislation and how we think that’s going to play out here.

PERKINS: Well, I don’t think that it can, and I think congress recognizes that too. Today, I think today a bill was introduced in congress to give states the option to set a work requirement for Medicaid. And whether that is good policy or bad policy, that would be a decision for congress to make, not an administrative agency. When an administrative agency, when HHS, the Department of Health and Human Services would take an action to impose a work requirement on Medicaid, it would be legislating, rather than executing or implementing the law and that is a separation of powers problem. It doesn’t really have the authority to do that. The purpose of Medicaid, as stated in the Medicaid act, is to enable low-income people who can’t afford the costs of their care to obtain services and to obtain medical assistance and to obtain rehabilitative and other services that enable them to attain or retain independence in self care. That’s the purpose of Medicaid. Medicaid’s purpose isn’t to work, or to promote work. Another way to look at it would be one purpose of Medicaid, as stated, if you look at what congress has said the objective of the program is, is to get services to people so that they are healthy and they can work. Saying that you have to work to get your health care is really getting it backwards. I would also contrast that to a program like the Temporary Assistance to Needy Families, the welfare program where the stated purpose of that program by congress is to promote work. So of course you would expect to see work requirements in that program.

So, as written in Medicaid today, the idea that work requirements are consistent with Medicaid’s objectives is, I just don’t think it works legally for the federal Medicaid agency. It’s also too, an argument, or a position that they’re taking that’s coming at an interesting time. When we now have more and more evidence from what Medicaid expansion, that is providing Medicaid to additional people in this instance, childless, non-disabled adults with incomes below 133 or so percent of the federal poverty level. That was the Medicaid expansion contained in the Affordable Care Act, which 32 states and the District of Columbia took up. And evidence and studies are coming out now and in those states that have expanded Medicaid, we can, there’s been job increases in those states, state revenue, job increases both in and outside of the health related fields. In the, there has been increases in state revenues. Premiums for private insured people have actually moderated in states that have expanded Medicaid. And so it proves the point that you need to have health coverage to be healthy so that you can get out and work. You don’t use health coverage, or you don’t use a work requirement as a barrier to obtaining health care. There’s also just something I think to ask ourselves as a country whether we are the type of country that says to a person, to one of our fellow citizen, you can’t get this medically necessary care unless you meet these work requirements.

VALLAS: And something that Republicans claim time and again, they’ll exempt people with disabilities from, but we’ve seen how that plays out, particularly within nutrition assistance programs, where they made those same promises and then those end up being the very people who end up excluded. Jane, in the last minute that I have with you, what are advocates options for trying to stop these policies from coming to their states and their communities? You’re a litigator, is it going to be litigation?

PERKINS: I think there will be some litigation, we are certainly prepared for that, and preparing for that. I would say as well that, again, going back to the Affordable Care Act, the Affordable Care Act included some amendments in it that are very prescient, given everything that’s going on now. And they require increased public participation and transparency on the parts of states in these, I guess we’ll call them flexibility efforts. And so people should become familiar with those requirements. They are, they can be very user friendly. We’re going to be posting something on our website, it’s www.healthlaw.org, within the next week or so that kind of, is a how-to on this notion of what do you need to get in front of you. Where do you get what you need to get in front of you to monitor and advocate on these flexibility issues. And what in turn, is required in states and the federal government in terms of getting information to you. Keeping you informed of what’s going on and hearing from you about what’s going on. And so I think short of litigation there is an extremely important role for the public to be heard. We can see how important voices are right now. And it’s really having an effect to make your voice heard. And luckily we have a formal requirement here that our voices be heard. So we just need to use it.

VALLAS: Jane Perkins is the legal director of the National Health Law Program, better known as NHELP. Jane, thanks so much for taking the time.

PERKINS: You’re welcome.

VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas. The show is produced each week by Eliza Schultz. Find us on Facebook and Twitter @OffKilterShow. And you can find us on the airwaves on the Progressive Voices network and the We Act Radio network, or anytime as a podcast on iTunes. See you next week.