On vaping, gun violence, and health insurance, the big talk flows, but action, not so much

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Patrick Malone & Associates P.C. | DC Injury Lawyers

shooting-300x201When it comes to key health concerns of the American public, President Trump and his administration have offered evidence anew that whatever they say may not last to the next political moment, that inaction is its own powerful kind of action, and that what officials say they’re doing may be exactly the opposite.

This is not intended as partisan commentary. It reflects the turn of a few news cycles and how Trump and his officials have dealt with:

  • The outbreak of serious lung illnesses and deaths tied to vaping
  • Relentless and lethal incidents of mass gun violence, especially those occurring at schools
  • Efforts to safeguard the health and financial security of millions with health insurance

It may be a challenge for many Americans to keep up with these crucial concerns, and many others, especially as Washington, D.C., gridlocks itself with partisan strife, an onrushing presidential campaign, and hearings on only the fourth impeachment action against a president. Still, the health dimensions of these issues are significant, and it is worth, even in abbreviated fashion, trying to fathom whether politicians and regulators are getting close to doing their jobs for the voters who put them in office and fund their efforts.

The president and administration’s wobbles on vaping

In September, Trump and administration officials expressed concern and even anger over the flourishing industry surrounding e-cigarettes and vaping. Cases then were beginning to rise with  patients who used “smokeless” products — devices that heat and vaporize liquids carrying high strengths of substances like nicotine or tetrahydrocannabinol aka THC, the intoxicating component of marijuana — and then needed hospitalization for lung damage, or worse, had died.

The president insisted administration action would be swift and decisive, including plans to ban sales of e-cigarettes and vaping supplies to those younger than 21. Trump and his top health officials said they would further attack vaping as a health menace for the young by banning flavored liquids that experts said helped to entice e-cigarette users.

But as the weeks have passed, it also became clear that Big Tobacco lobbyists and lawmakers with ties to the tobacco industry (which has taken stakes in vaping firms) exerted significant pressure on the White House. Media reports circulated that the president was wobbling, especially as Trump fretted about how a vaping crackdown might cost him votes in the 2020 election. Stephen Hahn, a cancer doctor with no political experience and the president’s nominee to head the federal Food and Drug Administration, declined in a recent congressional hearing to discuss tough vaping actions, saying such decisions would be made by his bosses.

Then the president, in a “listening” session with vaping industry leaders and public health officials, confirmed that the administration was reconsidering strong action on e-cigarettes, back-tracking hardest on the notion of flavoring bans. Trump said he was concerned how vaping crackdowns might encourage bootleg products and illicit use.

Of course, Juul, the San Francisco-based firm that holds the biggest share of the vaping market, already had said it voluntarily would pull its mint vaping liquid flavor but not its popular menthol.

The company may be throwing as many appeasements to regulators as possible, however, because states — including California, New York, and Massachusetts — either took Juul to court accusing it of improperly targeting young users or were imposing tough new regulations on how the firm could sell and market its products.

The Los Angeles Times, poring through a giant, legally required release of Juul files, said it could affirm what other media organizations had reported — the company saw its devices skyrocket in popularity and profitability in large part due to its experts tapping into studies and product developments by Big Tobacco predecessors, notably in firms’ plans to use chemicals (nicotine salts) that permitted the e-cigarette to deliver a wallop of nicotine (amounts equal to smoking a pack of cigarettes).

Juul promoted its product with zeal in ways — like social media — that hit the youth market with huge effect, making the company’s device a top youth trend. E-cigarettes and vaping also exploded in popularity with perfect timing: It occurred just as former FDA Commissioner Scott Gottlieb had postponed a crackdown on the devices and practice — actions hard fought and planned in the Obama Administration — because he called for more study about the role of addictive nicotine. The theory he wanted officials to ponder was this: Could ways be found to unhook smokers from nicotine, including by promoting e-cigarettes, to reduce the proven harms of combustible tobacco in causing cancers, as well as heart and lung diseases?

The FDA now has abandoned its nicotine focus, especially with burning cigarettes, the agency just announced. Anti-smoking and health groups have criticized that move.

More than 2,000 cases of significant lung damage and just under 50 deaths have been tied to vaping, the federal Centers for Disease Control and Prevention says. Officials suspect that a major culprit may be tainting of vaping liquids, including with Vitamin E. That substance is used to cut illicit supplies. But officials note that when warmed and breathed in, it may have a similar effect to inhaling oil and damaging delicate lung tissues.

The American Medical Association has taken a tough new stand on e-cigarettes and vaping.

With the president wavering, will the GOP-controlled U.S. Senate be inclined to allow any action from the Democratic House to advance?

As gun violence toll keeps climbing, the president baffles friends and foes

In August, after mass shootings in Ohio and Texas claimed multiple victims — 31 killed in incidents in Dayton and El Paso — the president chided reporters and insisted that the administration soon would roll out a package of gun control measures, likely including heightened background checks.

Trump, news articles at the time reported, already was baffling allies and opponents of his government by declining to be specific about his positions on ways to reduce a harm that claims almost 40,000 lives each year.

The president has suggested to critics that they should focus their animus more on Senate Majority Leader Mitch McConnell, who has declined to take up House-passed legislation that seeks to deal with gun violence.

But as months have passed, the administration has not offered its promised package. Instead, Trump took a single call from the head of the National Rifle Association, which reportedly included discussion of how any action on guns might affect the president’s 2020 campaigning. The administration talk of gun measures has receded.

Federal inaction on mass gun violence, however, becomes a sore topic as shootings won’t stop. In recent days, as the news site Vox reported:

“[A] shooter at Saugus High School in Santa Clarita, Calif., killed two people and injured three others … a shooter at a party in Fresno, California, killed four and wounded six more … a shooting outside a Walmart in Duncan, Okla., … killed three people — including … the gunman.”

Reliable data on gun violence isn’t easy to come by, largely due to Congress’s ludicrous decision years ago to bar federal agencies from doing scientific research on gun violence. But Washington Post tallies show that the shooting in Saugus, Calif., would be at least the 18th at a school this year. The newspaper also reported that, shamefully, almost a quarter of a million young people have experienced gun violence at their schools since the Columbine High School nightmare in Colorado set this awful course of deaths and injuries to the young.

Vox said the three incidents add to a distressing 2019 tally:

“According to the Gun Violence Archive, there have been more than 370 mass shootings in the U.S. so far in 2019, with mass shooting defined as any incident in which four or more people, not including the shooter, were shot but not necessarily killed. That’s an average of about eight mass shootings a week.”

The Saugus shooting occurred in a blink — 16 seconds in all — and it went on even as far away U.S. Senate Democrats, led by Chris Murphy of Connecticut, attempted to get unanimous consent for a House-passed measure calling for universal background checks for gun ownership. Cindy Hyde-Smith, a Republican from Mississippi, blocked this gambit, saying the bill needed fuller consideration, including so she wouldn’t face challenges if she lent her son or grandson a rifle, she said.

Hyde-Smith has gotten ripped by critics for that remark, and arguments for Second Amendment rights, while popular in many places — including in Saugus, a community so peaceful it is a favored home for many in Los Angeles law enforcement — the grim reality of gun violence is making such arguments rough.

Experts are raising growing concerns, for example, that “active shooter drills” and armed personnel on campuses may be traumatizing young people, without necessarily helping to safeguard them.

This has become a philosophical flash point for some, however, with critics saying mass shooting protections are no worse than nuclear duck-and-cover drills that, OK, boomers, seemed to withstand just fine.

No less an authority, though, than the federal Centers for Disease Control and Prevention has warned recently that “adverse childhood experiences” — such as “experiencing violence, abuse, or neglect [or] witnessing violence in the home [or] having a family member attempt or die by suicide [or] growing up in a household with substance misuse, mental health problems, or instability due to parental separation or incarceration of a parent, sibling or other member of the household” — can cause sustained harm to young people. As the agency reported:

“These exposures can disrupt healthy brain development, affect social development, compromise immune systems, and can lead to substance misuse and other unhealthy coping behaviors. The evidence confirms that these exposures increase the risks of injury, sexually transmitted infections, including HIV, mental health problems, maternal and child health problems, teen pregnancy, involvement in sex trafficking, a wide range of chronic diseases and the leading causes of death such as cancer, diabetes, heart disease, and suicide. ACEs can also negatively impact education, employment, and earnings potential. The total economic and social costs to families, communities, and society is in the hundreds of billions of dollars each year.”

The CDC has called for urgent action, including for the federal government to step in and offer more economic assistance to ensure families stay together and work well, and for public health officials to increase mental health support for the young and families.

Warning signals abound as to why more effort must be put forward to work with the young: Suicide rates among those ages 15 to 19 are hitting record highs, and self-injuries, especially “cutting,” has become so common “so quickly that scientists and therapists are struggling to catch up,” the New York Times reported, adding, “About 1 in 5 adolescents report having harmed themselves to soothe emotional pain at least once, according to a review of three dozen surveys in nearly a dozen countries, including the United States, Canada and Britain. Habitual self-harm, over time, is a predictor for higher suicide risk in many individuals, studies suggest.”

There’s consensus that much more needs to be done to battle the suicide crisis, including cases in which guns are involved. And if you are in crisis or know someone who may be, please call the National Suicide Prevention Lifeline at 800-273-TALK (8255) or text HOME to 741741. Both work 24/7. More resources are available at SpeakingOfSuicide.com/resources

By the way, the civil justice system may play a new and surprise role in efforts to curb gun violence. That’s because the U.S. Supreme Court recently declined to intervene in a case in which Connecticut family members are suing the maker of the gun used to kill 26 people, including 20 children, at Sandy Hook Elementary School in Connecticut in December 2012.

Gun makers generally have enjoyed broad legal protections against lawsuits over their products’ uses and abuses. But the high court waved on this Sandy Hook claim, allowing it to proceed under a narrow exemption for improper or illegal sale or marketing of a product by a gun maker.

Where’s the elusive Trump health care plan?

After the president and congressional Republicans — who had tried unsuccessfully to do so for almost a decade — failed to repeal the Affordable Care Act in Trump’s first year in office, he has promised regularly to provide his alternative. He spoke throughout the summer and into the fall about an imminent roll-out of a “phenomenal” new health care plan.

It has not surfaced, and, administration officials have scurried, instead, to figure what may happen if a Republican assault on the ACA, carried out by state attorneys general and endorsed by the administration and its Justice Department, prevails in the appellate courts. A decision could be handed down any day now, leading potentially to a U.S. Supreme Court case that might be decided on the eve of the 2020 vote.

Trump officials may be like the dog who chased and finally caught the car. What happens if tens of millions of working poor and middle-class Americans lose their health coverage, obtained through ACA exchanges? And will private employers keep offering the Obamacare-required protections — including on preexisting conditions, keeping children younger than 26 on their parents’ policies, and preventing insurers from capping lifetime benefits — if the appellate court tosses the ACA?

In the meantime, the administration is nary lifting a finger to assist the public with potential ACA sign-up, for example, by spending to promote Obamacare exchanges. Consumer advocates have watched as enrollment, at least for now, lags.

And critics are warning consumers that sites online may be sending them to “helpful” insurance brokers. The problem? Consumer advocates caution that the brokers may be eager to push “skimpy” or “slim” plans promoted by Trump and the GOP. Those policies offer lower monthly premiums, but they also may be non-compliant with the ACA, meaning they lack key protections, as mentioned. Further, a clamor is growing that the administration has resurrected deceptive insurance, which may seem cheaper but offers little or no help when buyers get sick or injured.

The administration also has worked with conservative states — either to discourage the Medicaid expansion that is a key component of Obamacare or to impose draconian requirements on recipients. The Medicaid expansion has provided millions of patients, chronically or mentally ill, with new coverage, as well giving millions more of the poor and working poor their first health insurance.

Trump officials, and GOP states, have fought the expansion, arguing that recipients needed to work or show they were trying, so they would not become dependent on what opponents decry as government handouts. Courts have been skeptical, and independent studies have shown that the work rules and other obstacles to Medicaid coverage don’t help — they harm recipients and cost more to carry out than they save by reducing enrollment.

Meantime, critics also have caught Seema Verma, the administration’s Medicaid and Medicare chief, in what they see as wasteful and hypocritical spending. Even as she and other officials have demanded that the poor demonstrate humility and self-sufficiency if they are to receive government benefits, Verma spent millions of dollars on GOP communications consultants. They were paid to boost her public profile, planning how to pitch her to glossy publications for favorable articles, and complaining to news outlets if Verma was depicted in a bad light.

Politico, which broke the story of Verma’s public relations outsourcing effort, quoted experts as saying that it is unheard of for a public official in her position to do so, and to spend as much as she has with partisan contractors. She has defended the expense, saying that the agency needed communications help until she got fully up to speed and had completed filling out her staff.

In my practice, I see the harms that patients suffer while seeking medical services, and their struggles to access and afford safe, efficient, and excellent medical care. This has become an ordeal due to the skyrocketing cost, complexity and uncertainty of medical treatments and prescription medications, too many of which turn out to be dangerous drugs.

Voters may need to keep a close eye on how politicians keep their word about as crucial a concern as health care. Getting anything done in these days of partisan gridlock in Washington, D.C., isn’t easy. At the same time, the public will tolerate empty words and unfulfilled promises only for so long. They may accept that leaders learn and change their minds. But political flip-floppers who don’t get things done for constituents eventually wobble themselves out of office. Silence, or temporizing, by saying that work is under way while good faith efforts actually are, can be better accepted by the electorate that flowery falsehoods.

The 2020 elections may be the most significant in recent memory, and we all have lots of work to ensure we make them and our democracy function and well.

Photo credit: Teary teen reunited with parent in nearby public park after LA-area shooting /@Chava Sanchez/LAist

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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