November 25, 2017

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Leadership Dispute At Consumer Financial Protection Bureau Stirs A Legal Battle

The federal consumer watchdog acency has two acting directors — one appointed by President Trump, one appointed by outgoing Director Richard Cordray. Both say they have the law on their side. NPR’s Michel Martin speaks with former Rep. Barney Frank, whose namesake law, the Dodd-Frank Act, created the agency.

MICHEL MARTIN, HOST:

We’re going to start the program hearing about a remarkable political standoff in a year that has seen many unprecedented moments. It’s a fight over who will lead an agency called the Consumer Financial Protection Bureau. That’s the agency created in the aftermath of the financial crisis to protect consumers in their dealings with financial institutions – everything from credit cards to mortgages to student loans.

On Friday, the outgoing director, Richard Cordray, stepped down and appointed his chief of staff, Leandra English, to run the agency temporarily. Later Friday evening, President Trump announced that White House Budget Director Mick Mulvaney would be taking over the job as acting director. The selection of Mr. Mulvaney to run the agency has alarmed consumer advocates because he has made no secret of his hostility toward the CFPB.

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MICK MULVANEY: It’s a wonderful example of how a bureaucracy will function if it has no accountability to anybody. It turns up being a joke. And that’s what the CFPB really has been in a sick, sad kind of way.

MARTIN: And President Trump tweeted today, quote, “The Consumer Financial Protection Bureau or CFPB has been a total disaster as run by the previous administration’s pick,” unquote. All this sets up a showdown for Monday when both Mulvaney and English are expected to show up for work. Now, the administration has defended the president’s decision, telling reporters that the White House has the power to fill top agency vacancies under the so-called Federal Vacancies Reform Act.

So for more perspective, we called one of the architects of the law which created the CFPB, the Dodd-Frank Act, to find out what lawmakers had in mind. We reached Barney Frank, former Democratic congressman from Massachusetts. And we reached him in New York. Congressman, thanks so much for joining us.

BARNEY FRANK: You’re welcome.

MARTIN: So as we said, the White House says that they have the authority here. What is your perspective on this?

FRANK: Namely, that if we wanted the Vacancy Act to govern, we would not have done anything about it. Knowing that the Vacancy Act was the law, we very specifically came up with a different way of acting, and it was not an accident. The Consumer Financial Protection Bureau is given a great deal of autonomy. You heard Mr. Mulvaney complaining about it. He calls it a lack of accountability. What we think it is is a way to kind of prevent an agency from political pressures, which we know are going to be enormous on an agency that is challenging some of the most important financial interests in the country.

The director of the Consumer Financial Bureau is different than every other in many ways. He’s appointed or she’s appointed for a five-year term and cannot be removed by the president. So what you have here is a conscious decision to give the Consumer Financial Protection Bureau more independence from the kind of political pressures that will come because, remember, the Consumer Financial Protection Bureau – what it does is to protect people against kind of aggression from private interests. And we thought it was appropriate that, in that case, they be protected from being cut off at the knees politically.

MARTIN: So I understand that you don’t have a copy of the statute in front of you. But…

FRANK: No, I forgot my copy. I usually travel with one…

MARTIN: I’m sure you do.

FRANK: …But I left it at home.

MARTIN: But it is my understanding the statute creating it specifically says that the agency’s deputy director serves as acting director until a new director has been nominated. Does that conform with your memory of it?

FRANK: Yes. The statute gives the director a five-year term, and the president can’t fire him. Well, it would undermine that whole concept if anything happened to the director during that five-year term, the president got to say who replaced him. We wanted that five-year period, so we said, yes, the director gets a five-year term. And the director who designates the deputy director, in effect, can continue his or her regime after a vacancy for the rest of the five years.

MARTIN: Well, what do you think is at stake here, though? Because if everybody agrees that President Trump will get to name the successor anyway – I mean, the interim named by Mr. Cordray, who’s leaving the agency, would only serve until a successor is confirmed. The Republicans are in the majority, so it assumes that whoever the president picks will be confirmed by them. So what do you think is the importance of this fight?

FRANK: First, it is to preserve the independent principle because it may come up at some other time. If they get away with this, then maybe the next time there’s a director the president might try to fire him and say I had the right to do that.

Secondly, knowing that there is a few months, it is possible that the director could finish up some pending business. It is possible that there could be some rules set forward that would be protecting people that would be cut off right away.

MARTIN: What happens now in your view? And I am asking you for an opinion here. Does this go to the courts?

FRANK: I hope it does. The question is, how does it get there? In America, you have to have this standing to sue. Not everybody can bring a lawsuit. I can’t go to court and say, oh, judges, they’re hurting my law. Clearly, the person that we think should be the acting director could sue. She’s got a right to that. That would be the ideal way. This is a dispute about what the law means. And I would hope the administration would be willing to cooperate in getting it into court.

MARTIN: Before we let you go, I know this is a question that people ask all the time these days, but I feel I have to ask. Have you ever seen anything like this? Did you ever envision anything like this when you set up the agency – this kind of a standoff?

FRANK: First of all, I haven’t seen anything like it. But we clearly envisioned it. Look, again, this is not an accident. The Consumer Financial Protection Bureau is given a great deal of independence from any administration power, including, by the way, one that I might like. This is an agency whose job it is to go out and fight with the largest most powerful financial interests in America on behalf of citizens. And so, yeah, we very much envisioned an administration hostile to the notion of consumer protection trying to kill the agency.

MARTIN: That was former Massachusetts Congressman Barney Frank. He’s the co-author of the Dodd-Frank Act which created the Consumer Financial Protection Bureau. He was kind enough to join us from New York. Congressman Frank, thanks so much for speaking with us.

FRANK: Sure.

Copyright © 2017 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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Saturday Sports: The Future Of The NFL

Scott Simon talks with Howard Bryant of ESPN about questions of how long the NFL can continue to dominate professional sports.

SCOTT SIMON, HOST:

And now it’s time for sports.

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SIMON: But as the time for NFL football passed, numbers are often down. Controversies are up. We’re joined now by Howard Bryant of espn.com and ESPN The Magazine. Howard, good morning. And I understand it’s the birthday of Joe DiMaggio, Pope John XXIII, Ben Stein and Howard Bryant.

HOWARD BRYANT: And Bucky Dent and Donovan McNabb. Thank you, Scott.

SIMON: Oh, my gosh. OK. Bucky Dent, who has a…

BRYANT: All the 11/25s out there. It’s a pretty good day.

SIMON: Yeah, Bucky Dent, who’s got a – quite an exciting middle name in Boston, yes.

BRYANT: That’s right.

SIMON: Well, happy birthday, my friend.

BRYANT: Thank you.

SIMON: Football – concussions, brain damage, protests, grumpy owners, racist mascots. Is pro football deflating in value before our eyes?

BRYANT: Well, it’s fascinating, Scott, when you think about it because this is the one sport – we saw it with basketball in the late 1970s, where people thought that the drug scandals in basketball were hurting it, that the game was too black, that people didn’t care that you can’t – you only care about a basketball game in the last five minutes. And the sport was failing.

We remember it during the steroid era in baseball, where the game was really struggling, where we were talking about drugs instead of superstars. Everything about Mark McGwire and Sammy Sosa and Alex Rodriguez and Roger Clemens was always about drugs instead of their greatness. But we never talked about it with football. We never discussed football being a problem sport, even though football had plenty of problems, because the money kept rolling in.

SIMON: Yeah.

BRYANT: And now the money’s not quite rolling in as much as it did. You’ve got CTE, which is the brain trauma issues that have always been there for the last several years, especially in more and more prominence. And I think you also have the diminishing returns of football. Roger Goodell, the commissioner, said he wants $25 billion in revenue for the NFL by 2027, and it’s at $13 billion now. So what do they do?

We used to have football on Sundays and Mondays and then Saturdays after Thanksgiving. Now you play Sunday, Monday, Thursday, Saturdays and now Sunday nights. So I think people may have had enough of football. It’s not that staple for a couple days that it used to be.

SIMON: Yeah.

BRYANT: And then, of course, there’s the protests, as well. Let’s think about this in terms of the players fighting injustice. But you also have the – you have the fans. You have a lot of fans that say that they don’t like what they’re seeing on the field from the players. And it finally is making football a more complicated sport than it has been. I think that football – like baseball with some of the World Series that we’ve had in the past few years – finally, football needs the game to save it. It really does need a great postseason to get people to maybe think better about the sport because it is struggling right now.

SIMON: Yeah. I did not watch the games on Thursday. I got to tell you I have a hard time watching because of the brain damage issue. Simple as that.

BRYANT: Well, it’s hard, Scott. I mean, it’s very hard. I remember watching a Patriots game a couple of years ago, and Stevan Ridley – the running back – came – you know, came down, got a ball off tackle, and just got hammered. And he fumbled the ball, and you could tell he was unconscious right when he got hit. And I started watching it. And I’m thinking, I do this for a living, and this is really, really hard to watch. And how long before you start to recognize as a fan that you’ve got a piece of this?

SIMON: Yeah.

BRYANT: You’ve got a part of this. You’ve got to decide. And so far, for many years, fans have made that decision – that they’re willing to watch these players knock themselves unconscious and justify it because they make so much money. But you do have a piece of this when you watch, and it is very, very difficult to watch these days.

SIMON: Well, Howard Bryant of ESPN, thanks so much for being with us. And happy birthday again, my friend.

BRYANT: Thank you. And happy holidays.

(SOUNDBITE OF LETTUCE’S “PHYLLIS”)

Copyright © 2017 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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On The Syrian Border, Alternative Arabic Music Brews

Members of the band Hawa Dafi at Why? cafe in Majdal Shams.

Daniel Estrin/NPR

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Daniel Estrin/NPR

Late one Thursday night, the hippest cafe-bar in the village of Majdal Shams pulses with strobe lights. The dance floor is packed. Beloved hometown band Hawa Dafi — Arabic for “warm breeze” — is playing a live concert.

Early the next morning, another soundtrack rocks the village.

“We actually woke up to the sound of bombings and fighting,” says guitarist Busher Abu Saleh. He is groggy, nursing a coffee with some bandmates at the Why? cafe, where they performed the night before. “We were up late last night. They woke us up at six in the morning.”

The cafe-bar is a safe place for a coffee, but just a few minutes’ drive away is the Israeli border fence with Syria. Many in Majdal Shams have relatives who live just beyond the fence in a Syrian regime-controlled village that’s frequently under attack by rebel fighters.

The village of Majdal Shams.

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Daniel Estrin/NPR

The village’s location on the geopolitical map has always been precarious, even a bit surreal. But it has also created the perfect conditions to incubate an unlikely experimental Arabic music scene. Village musicians— a few professional ensembles and some garage bands — set Arabic lyrics to a variety of styles, from jazz and blues to heavy metal and ska.

For the young generation in Majdal Shams, music has provided an escape from a frustrating set of circumstances — not just the echoes of the Syrian civil war raging next door.

Israel captured Majdal Shams from Syria in 1967. Hugging the slope of a tall mountain, the village is stuck in a corner alongside the borders of both Lebanon and Syria.

Israel is in a state of war with those countries and today, villagers are prohibited from visiting. For years, villagers would gather at what’s known as the Shouting Hill and, with a megaphone, they’d hold conversations with their relatives across the valley in Syria.

The villagers are Arabs, mostly of the Druze religious minority. But many young people there, the musicians included, aren’t really into religion.

On paper, the people of Majdal Shams are not citizens of any country. They consider themselves Syrian, and most have refused Israeli residency papers. Their travel documents lists their nationality as “undefined.”

“This kind of speaks to me,” Abu Saleh says. “I’d rather be a citizen of the world than of imaginary borders.”

That undefined identity has inspired musicians from the village to look beyond their borders, to borrow from different music genres and to blend them into Arabic music that’s, well, hard to define.

TootArd.

Thomas von der Heiden/Courtesy of the artist

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Thomas von der Heiden/Courtesy of the artist

Laissez Passer is the latest album by village band TootArd, Arabic for “strawberry.” The band blends Tuareg music of North Africa with saxophone and oud, a traditional Middle Eastern stringed instrument. The album’s title track opens with a reggae feel and lyrics like, “I do not exist on an ID card.”

Abu Saleh’s band, Hawa Dafi, was formed in 2012, toward the start of the Syrian war. It borrows from gypsy music to riff on same theme — as in the song “Majhool,” Arabic for “undefined,” from its 2015 album Our Story.

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Hawa Dafi also rails against organized religion in its song “Enta Meen,” and sings about the hopefulness of the beginning of the Arab Spring in “Shams Elhoreye,” meaning “the sun of freedom.” Abu Saleh says war doesn’t stop their music.

“My mother is from Lebanon and they had a 15-year-long civil war. And music was made back then, and people were getting married, and falling in love and out of love, and life went on,” Abu Saleh explains. “Eventually it will be over.”

Down the road from where the guitarist sipped his coffee, residents rally and sing next to the border fence, in support of their Syrian families besieged on the other side. On the same street overlooking the border, villagers are celebrating a wedding.

In this village, war is a part of life, and life is a part of war.

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The Insurance Company Paid For Opioids, But Not Cold Therapy

Lauren Kafka rented a machine that delivered cold water and compression to manage pain after rotator cuff surgery. Her insurance company said it wasn’t medically necessary and refused to pay for it.

Courtesy of Alexander C. Kafka

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Courtesy of Alexander C. Kafka

As a lifelong racket-sports fanatic, I’ve dealt with shoulder pain for decades, treating it with bags of frozen peas, physical therapy, cortisone shots and even experimental treatments like platelet-rich plasma. Eventually, however, the soreness prevented me from handling daily-living tasks like pulling a bottle of olive oil off the top shelf of my kitchen or reaching to the back seat of my car to grab my purse. Even low-impact activities such as swimming freestyle hurt a lot. Sleeping also got tougher. After MRI showed two full-thickness rotator-cuff tears, I finally called a surgeon.

My tennis-team pals who had survived the operation gave me valuable advice: sewing Velcro down the front of half a dozen T-shirts to avoid having to put them over my head; borrowing an electric recliner chair in which to sleep for the first six weeks; buying pump bottles of shampoo and conditioner that I could dispense with my left hand; and removing safety caps from medications. To manage the pain after surgery, they also suggested renting an ice machine.

I’ve had bad side effects from anti-inflammatory painkillers and my goal was to take as few opioids as possible, so the ice machine sounded appealing. Two physical therapists recommended models with a mechanical pump that circulates chilled water. They said to be sure to use one that also provides compression, which reduces stiffness, swelling and pain in the joint.

My surgeon, Dr. David Lutton at Washington Circle Orthopaedic Associates in Washington, D.C., agreed that an ice machine was a great idea, saying via email that cool-therapy devices help manage postoperative discomfort “while minimizing the physical and cognitive side effects of pain medications such as narcotics.”

Unfortunately, my doctor’s surgical coordinator told me I’d have to pay to rent one on my own because my insurance wouldn’t cover it. The best price I could find was $250 for a three-week rental of a Game Ready machine from Orthosport, a distributor in Virginia. This price sounded high, but I was relieved that the surgery and physical therapy would be covered, and my fears about excessive post-operative pain outweighed my economic concerns. Despite the pessimistic warnings about coverage, I asked Orthosport to submit the bill to Cigna.

During the first few weeks after surgery, I tried to take opioid painkillers only sparingly, relying mostly on the ice machine. I sometimes left it on throughout the night while I tried to sleep in my sling in a borrowed recliner, and it frequently relieved the discomfort enough that I could sleep for four to five consecutive hours.

After three weeks, I decided that it was worth paying an additional $250 out of pocket to keep the machine for another three weeks. Unlike the type of physical therapy I was used to for sports injuries — the kind that immediately reduces pain — the therapy regimen after rotator-cuff surgery is absolutely excruciating for several weeks, sometimes months.

The ice machine helped me taper my drug use from oxycodone to tramadol, a less powerful painkiller, and now I’m using primarily acetaminophen. More than six weeks after surgery, I’m still relying on the Game Ready machine and dread the day when I’ll have to give it up.

A couple of weeks into my recovery period, Cigna denied my claim. I appealed by explaining that the ice machine was medically necessary because I am unable to take anti-inflammatories, and the unit was providing a safe and effective alternative to opioids, which had given me several adverse side effects when I’d used them in the past. It was also much easier to work without having to hold, strap or tape ice packs on the front, back and side of my shoulder. Cigna denied my appeal and told me that the ice machine was a “personal convenience item” and therefore a noncovered expense.

I was determined to find out why an insurer wouldn’t pay for the ice machine my doctor prescribed when it had covered the oxycodone. This drug and other painkillers have fueled the opioid epidemic, which according to the National Center for Health Statistics killed more than 64,000 people in the U.S. in 2016. I also was curious to find out why insurance companies weren’t convinced about the effectiveness of ice machines, so in between shoulder exercises and tutoring, I switched gears and went into reporter mode.

“Physician or patient anecdotes of good results are the least compelling evidence to payers,” Dana Macher, vice president of reimbursement and market access at Avalere Health, a health care consulting firm, told me in an email. “Bottom line is that it is all about the evidence. The gold standard is multiple randomized controlled clinical trials. Devices rarely have this information due to the fact that they do not (many cannot) invest the sums of money required. Lower-quality data or no published data is likely to result in non-coverage.”

Then I contacted the people at Game Ready, who cited five studies that show benefits for knee- and hip-surgery patients provided by this system compared with passive ice therapy. These benefits include reduced consumption of narcotics; improvement of measurable physical therapy milestones; reduced pain and swelling; increased postoperative function; and improved patient satisfaction with the recovery process. I sent my insurance company links to the abstracts for these studies.

Cigna replied. “Our coverage policies for medications, medical procedures and medical devices are based on an extensive examination of peer-reviewed clinical studies, journal articles and guidelines from professional medical societies,” wrote Dr. Julie Kessel, head of Cigna’s Coverage Policy Unit, via email. “Currently, the clinical evidence for the Game Ready device does not support its coverage, as its benefits over applying ice to the injured area have not yet been established. However, our coverage policies are typically reviewed annually and can be updated based on new clinical evidence.”

Tomasina Barton, senior vice president of marketing at Game Ready, says she doesn’t know whether private insurance companies have seen her company’s clinical studies or use them in relation to their coverage policies.

“Holistically, we would want an insurance company to look at the overall quality and cost of care,” she says. “Hospitals and providers are looking at where the patient does best, and patients are recovering better at home.”

Insurance didn’t cover the cost of the Game Ready ice machine, but it did cover the cost of opioid painkillers.

Courtesy of Alexander C. Kafka

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Courtesy of Alexander C. Kafka

Insurance coverage for home-care ice machines varies by state and individual policy, according to Barton, but private insurers typically refuse to cover them.

Despite the failure of my appeal to Cigna, several health care professionals told me that appeals are important catalysts for change in the insurance industry even if they don’t produce immediate results.

“The system does rely on people appealing to some degree,” says Dan Mendelson, president of Avalere Health. “Insurance companies will re-review the evidence where there are a lot of appeals, but devices and procedures can be considered experimental for decades, and without peer-reviewed literature, insurance companies won’t cover them.”

Although the use of cryotherapy devices is still considered experimental by many insurance companies, doctors in other specialties besides orthopedics agree that methods to manage pain without opioids should be a top priority.

“The medical community, insurance companies, and patients should all be doing everything in our power to limit our reliance on opioids,” says Dr. Marian Sherman, an anesthesiologist at George Washington University Hospital who has a special interest in opioid-sparing strategies for postoperative pain control. “This means capitalizing on all available pain-reducing modalities. Icing machines have been demonstrated to work, and when used appropriately, the side-effect profile is zero. We can’t say this about a single medication.”

Here’s my conclusion: If insurance companies want to play a part in the solution to the opioid crisis, they are going to need to start thinking outside the traditional boxes. The manufacturers of these cryotherapy devices need to provide insurance companies with more convincing peer-reviewed data of their benefits, including the devices’ role in getting patients out of rehab and back to work sooner, which will cut costs in the long run. Patients need to let their doctors and insurance companies know that they want insurance coverage for safe alternatives to narcotics — even if it means going through the time-consuming appeal process.

“The more information we can get out to the public, the more demand there will be for the ice machines,” Lutton wrote in his email to me. “Ultimately, that’s the only way that the insurance companies will end up paying for them.”


Lauren Kafka is a freelance writer, editor and English tutor and founder of Kafka Consulting in Bethesda, Md. She hopes to be back on the tennis court next summer. She’s on Twitter: @LaurenKafka

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