EPA’s ‘Endangerment Finding’ is endangered

Posted on November 1, 2017 by matt ohern
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EPA’s Endangerment Finding required that the agency determine whether or not emissions of greenhouse gases (from new motor vehicles) cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.
This finding serves as the foundation for the enormous number of burdensome regulations EPA imposed on the auto fuel economy to the Clean Power Plan (CPP). EPA has used this finding and the Clean Air Act (CAA) to implement its war on coal and other fossil fuel.
Replacing fossil fuels?
A petition was filed in January 2017, which requested EPA to reconsider the data which contributed to findings that greenhouse gases needed to be regulated under the CAA. The petitioners are a group of household electricity consumers. This EPA plan seeks “…to replace current electricity generation sources primarily based on fossil fuels like coal and natural gas with so-called ‘renewables,’ principally wind turbines and solar panels.”
The petition states wind turbines and solar panels only provide power intermittently. In fact, it claims electricity costs will increase fivefold or more if the nation relies on turbines and solar panels.
We all rely on round-the-clock electricity supply. We know the wind does not blow all the time and it is dark half the time.
The petition claims that solar and wind sources provide less than 10% of the nation’s electricity. It cites California as a leader in generating power from intermittent sources. The California Energy Commission in 2015 published data showing California receiving 6% of its electricity from solar and 8.2% from wind. As a result, California’s average household electricity rate was 15.62 cents per kWh. The U.S. average per kWh is 10.31 cents.
The German example
Germany provides another excellent example of switching to wind and solar. It’s generation of electricity from wind and solar is approximately 30%. Germany’s household electricity rate in 2015 is 28.7 (34 cents U.S.) euro cents per kWh. The petition asserts the soaring price of Germany’s electricity is squarely placed on attempting to replace fossil fuels with intermittent renewables.
Common sense tells us there are days of light wind and heavy clouds in Germany. When those conditions occurred, the entire fleet of Germany’s fossil fuel plants had to be ready to go.  The petition asserts, based on an experts’ report, that for “Every 10 new units worth of wind power installation has to be backed up with some 8 units worth of fossil fuel generation. This is because fossil fuel plants have to power up suddenly to meet the deficiencies of intermittent renewables…To avoid blackouts the government has to subsidize uneconomic gas and coal power plants.”
According to the petition, Germany spent up to 20 billion euros ($23.5 billion U.S.) in one year to subsidize its intermittent power projects.
Another example cited was a demonstration project in South Korea where citizens attempted to rely on wind and solar for electricity. For 97 households, the cost for wind and solar power plus batteries amounted to $125,000 per household. In addition to these costs, the South Korean families still had to have fossil fuel backup capacity.
The petition destroys EPA’s Endangerment Finding. EPA used three lines of evidence to support its Endangerment decision. The first line of evidence came from the basic physical understanding of concentrations of gases such as carbon dioxide. The second line of evidence came from looking at historical estimates of past climate changes and compared that to global surface temperature during the past several decades. The third line of evidence was arrived from computer based-climate models. The first line of evidence or the Tropical Hot Spot (THS) theory that occurs in the tropics is bogus. There are data cited in the petition to invalidate the THS finding by EPA.
The petition claims that new research shows that the Tropical Hot Spot assertion is invalid. In fact, it says “These models, relying on an invalidated physical theory, all predict the Hot Spot. Proper analysis for more than 50 years of balloon and 37 years of satellite temperature data generated by five independent entities conclusively shows that the Hot Spot does not exist.”
Assuming this is true, EPA’s Endangerment Finding should be withdrawn.
(This article first ran in Farm Futures on October 23, 2017)
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Is Your “Cadillac” Health Care Plan Really Just A Yugo In Disguise?

Posted on November 1, 2017 by matt ohern
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As the Affordable Care Act came into effect, many discussions took place as to whether certain health plans would be considered “Cadillac” plans, subjecting their sponsors to an excise tax because of too generous benefits. However, due to “subrogation” provisions, which enable a plan to gobble-up any personal injury award a plan participant obtains from the party who caused the injury, when you lift up the hood, some of these Virginia plans turn out not to be Cadillacs at all, but more like Yugos in disguise.

Subrogation

“Subrogation” is a legal principle that means that someone, usually an insurance company “stands in the shoes” of another. If an insurance company has paid an insured on account of a loss, the subrogated insurer is entitled to sue the party that caused the loss, in the insured’s name. It also means that if the insured has already received payment from the party that caused the loss, the insurance company is entitled to take that payment away from the insured to the extent of any payments the company has made.
Specifically, in the case of health care plans it means that a subrogated plan can not only sue the third-party that caused the injury to a plan participant, but, more importantly, it can take away from an injured participant any money he/she receives from the party that caused the injury, to the extent of any payments the plan has made.
At first glance, this may seem to some like a reasonable outcome. Upon analysis, however, it becomes apparent that the effect of subrogation is to deny an injured health plan participant fair compensation for his/her injuries. In the case of an employer-sponsored health plan it is an egregious example of employer overreach that leaves injured employees uncompensated for their injuries.
When an injured person receives a monetary award on behalf of the party that caused the injury, either as a result of a law suit or by payment from the wrongdoer’s insurer, it is compensation for the injury, pain, suffering, permanent damage to health, any damage to property, and the inevitably incidental expenses that result from an injury. One element always considered is the amount of the injured party’s medical bills, even if all the medical bills were paid by the injured party’s health plan. The reason is that medical bills serve as a necessary proxy for how badly the person was hurt.  No one can say exactly how much a broken pelvis is worth, but the medical bills incurred for treatment give you a pretty good idea of the extent of the injury. Therefore, when a health plan recovers the amount it paid for treatment from an injured participant, it is really depriving that participant of the fair compensation he/she should receive for the injury.

How It Works

Take this case: A health plan participant is hit by a drunk driver, is seriously injured, incurs a long hospitalization and a painful recovery. Although the participant will be able to return to work, there is some permanent damage. The plan pays $100,000 towards the participant’s medical costs. The drunk driver has no financial assets, but his insurance company pays the $100,000 policy limit. That equals the amount the participant’s health plan paid for treatment. The participant has his medical bills paid, but is left with absolutely nothing as compensation for his injuries. Nothing for pain and suffering, time lost in the hospital and recuperating at home, ongoing health problems, perhaps not even anything for damaged property. Nothing. Does anyone think that’s fair?
But wait, it gets much worse. It is very common for plans with subrogation provisions to deny the participant any credit for sums the participant spent to obtain the recovery. They also often provide that no account is to be taken of whether or not any part of the recovery was for on-going health problems requiring continuing care. Consider, in the example above, that in order for the participant to secure the $100,000 payment from the drunk driver, he had to engage a personal injury lawyer on a 30% contingency. So now, the participant has received the $100,000 settlement, all of which can be claimed by his health plan through subrogation, and, also owes his lawyer, who successfully obtained the settlement, $30,000 for the representation. The injured participant in a health plan with subrogation not only gets nothing for the injury, he/she can end up in serious debt for having successfully pursued a claim against the party that caused the injury. Does anyone think that’s fair?

Virginia’s Anti-Subrogation Law

That result is, of course, appalling.  We have known that in Virginia since at least 1973, when Virginia enacted Virginia Code Section 38.2-3405, which prohibits “any insurance contract providing hospital, medical, surgical and similar benefits” and any “health services plan”  “providing for payment of benefits to or on behalf of persons residing in or employed in this Commonwealth” from  containing “any provision providing for subrogation.” This makes Virginia an anti-subrogation state. The problem, really the tragedy, is that, over the ensuing years, so many exceptions have arisen that they have almost devoured the rule.

ERISA

The first group to lose the protection of Virginia’s anti-subrogation law were employees covered by plans governed by “ERISA,” the Employees Retirement Income Security Act. While intended to protect pensions and other employee benefits, ERISA contains a “preemption” provision overriding state laws with respect to employee benefit plans falling under its coverage. But it leaves state insurance laws unaffected. The result is that a health benefit plan provided through an insurance policy still cannot contain subrogation provisions in Virginia. On the other hand, if the employer has an ERISA compliant “self-funded” health care plan, the employer may include the noxious subrogation provisions.

Federal Employees

The next group deprived of the benefits of Virginia’s anti-subrogation law are federal workers living or working in Virginia. The Federal Employees Health Benefits Act of 1959 authorizes the Office of Personnel Management (“OPM”) to contract with private carriers for federal employees’ health insurance. That Act also provides that the terms of any contract OPM enters into supersede and preempt any state law that relates to health insurance or plans. It is the practice of OPM to require subrogation in all its contracts with private health insurers covering federal workers, so they too lose the benefit of the anti-subrogation law.

Virginia Local Government Employees

The third group who are denied protection under Virginia’s anti-subrogation law is a surprising one. It is employees of Virginia political subdivisions such as counties and authorities created by state law, which have self-funded plans. While the law remains at least somewhat unsettled in this regard, in 2001 the General. Assembly added a new definition of insurance to the Virginia Code, which does not include self-insured health plans sponsored by political subdivisions. In addition, such plans do not fall within the definition of a “health service plan” under another state law, Virginia Code § 38.2-100 (2017). Finally, some political subdivisions operate under separate statutory grants of authority authorizing them to create their own health plans.  All of these provisions may be relied upon by Virginia political subdivisions with self-funded plans to deny their employees the benefits of the anti-subrogation law.

Why Require Subrogation?

Three basic arguments are advanced to justify subrogation, allowing health insurance plans to seize their participants’ personal injury recoveries. None can withstand analysis. The first of these is that subrogation is necessary to avoid a so-called “double recovery” by the injured participant.  In reality, there is no such thing. The payment an injured party receives from the third-party who caused the injury is compensation for his/her injuries. Any payment the health plan made went ultimately to hospitals, doctors and other providers for medical care. The participant has received no double payment that should be recovered by the plan.
Next, it is argued that third-parties who injure a plan participant should be required to reimburse the plan for the excess costs resulting from that injury.  There would be some validity to this argument if the plan were getting its reimbursement directly from the third-party that caused the injury and the participant had decided not to pursue his/her own  claim. That, however, is not the usual case. Most often, a plan is seeking its reimbursement from the injured participant who received a third-party payment as compensation for his/her injuries.
It can also be argued that there is no more reason for a plan to be entitled to reimbursement for an expense occasioned by the acts of a third-party than for an expense occasioned by the acts of the participant himself. Indeed, perhaps the contrary should be true. If a plan is entitled to be reimbursed for expenses incurred because of an injury to a participant in, say, a traffic accident, shouldn’t it equally be entitled to reimbursement for expenses incurred on behalf of a participant who is careless while climbing on a ladder or working with knives in the kitchen. If plans don’t seek reimbursement for expenses for treating participants who suffer heart attacks or diabetes related to being overweight or inactive, why should they be allowed to obtain reimbursement from a participant hit by a car while crossing the street? Plans seek recovery for their expenses from injured participants who have received a third-party recovery based on opportunism, simply because there is some money there.

Subrogation Is A Health Plan Windfall

In fact, recoveries obtained by plans through subrogation are not really reimbursements for their expenses, they constitute a windfall for the plan. When plans set their rates of contributions to be made from employers and employees they do so based on their claim experience. How much do they reasonably expect to pay out for illnesses and injuries in a particular year adjusted for anticipated inflation, administrative costs and any other expenses that can be reasonably estimated. In other words, the likelihood that a plan will incur expenses for participants’ injuries are already “baked into the cake” when the contribution rates are set.  At the risk of mixing culinary metaphors, any recovery, through subrogation, of the highly contingent third-party payment an injured participant may receive is pure gravy.

False Economy

The final and perhaps most voluble assertion on behalf of subrogation is that it is necessary as a cost control measure. Even if you accept that it is appropriate to control health care cost by depriving injured plan participants of fair compensation, this doesn’t hold much water. While I have not had access to comparative cost data for plans with and without subrogation in preparing this article, the long persistence in the marketplace of plans without subrogation suggests that subrogation is not an imperative to control rapidly escalating health care costs.
While many self-funded plans require subrogation, plans underwritten by commercial insurers in Virginia and subject to the anti-subrogation law do not.  Among public employers, some Virginia counties with self-funded plans require subrogation, but others do not. Arlington County requires subrogation, but Prince William County does not, nor does the Commonwealth with respect to its own civil service. Among utilities, Fairfax Water required subrogation until September 28, when its governing board voted seven to two to rescind those provisions. Next door, Loudon Water and the Prince William Service Authority do not require subrogation.  The plan for the Alexandria public schools requires subrogation, while the Fairfax County public schools plan does not appear to require subrogation, although it does provide for the usual coordination of benefits with other health insurance.
Over the long run subrogation is very unlikely to make an effective contribution to health care cost control. Indeed, the highly contingent possibility of recovery from a third party responsible for a participant’s injury is a very thin reed upon which to base any part of a plan’s financing.  Moreover, subrogation is a self-defeating strategy. As participants become aware that recovering damages from a third party is a highly contingent, time consuming, vexatious process that involves assembling documents and other paper work, likely hiring a lawyer, sitting for depositions, and, after all that, their recovery will be taken by their plan, they will simply stop seeking third-party recoveries. That leaves the plan in the business of pursuing recoveries against third-parties itself, without cooperation from the injured person.
Personal injury lawyers know about subrogation of course, and are unlikely to take on cases in which the proceeds can be claimed by a health plan.   Because of the disincentive that subrogation brings to pursuing personal injury claims, the real beneficiaries are not plans or their participants, but tortfeasors who injure plan participants.

What to Do

If you are one of the few who is fortunate enough to have high demand skills that give you a choice of employment options, you might well wish to carefully review your benefits, although without a contract they can be changed. You may decide to take a package that provides health care offered through a commercial insurer subject to the anti-subrogation law, rather than the wooden nickel of a self-funded plan with a subrogation provision.
If you are a Virginia local government employee you may wish to be in persistent contact with your state representatives and ask them to clarify the law so that the anti-subrogation public policy expressed in our statute is applied to all local government plans.
If you are a federal employee you may wish to be in persistent contact with your members of Congress and insist that they stop OPM from requiring subrogation provisions in health care insurance contracts covering employees in states with anti-subrogation laws.
Or you can do nothing. In that case you may just find that following an injury when you are most vulnerable, what you thought was a Cadillac health care plan is really just a Yugo in disguise.

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Tax Cut Opponents Are Simply Wrong

Posted on October 18, 2017 by matt ohern
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Most liberal-left activists simply cannot support tax cuts. They can’t help it. It is in their DNA. They firmly believe that money spent by government is always better than money spent by taxpayers. They don’t understand that more money in the taxpayers’ pocket means more money spent on shoes, movie tickets, dinners out and new clothes. The economy improves when this happens and that means more money to the government without tax increases.
Ed Gillespie’s 10% across-the-board tax cut plan, the first in the past 45 years in our state, is opposed by liberal-left leaders because they believe government never has enough money.
What they don’t tell you is that the Gillespie Tax Plan will be paid for from the projected budget increases agreed to by Governor McAuliffe and the General Assembly. If those projections aren’t realized, then the proposed tax cut doesn’t take place. Pure and simple.
The Gillespie Tax Plan does not reduce current state spending. Indeed, Governor McAuliffe and the General Assembly have projected increases of $3.4 billion over the next five years. And the Gillespie Tax Plan takes only $1.3 billion or 40% of that increase, leaving more than $2 billion in new monies for basic services: schools, police, etc.
The Virginia Education Association attacked the Gillespie Tax Plan stating that it will deny public education $400 million when fully implemented. That just isn’t the case. The tax cuts will be paid from McAuliffe-approved projected budget increases. Even after the tax cut is factored into these budget increases there will be an additional $2 billion to spend and the General Assembly and the Governor will determine where that goes. Public Education spending will surely increase.
The Washington Post claims Gillespie’s plan is the same as the recent ill-fated Kansas tax cut that created financial trouble. This is not true. Unlike Kansas, Gillespie’s plan has trip-wires requiring tax cuts to be financed from the budget increases projected by the McAuliffe Administration. And when The Post does mention these trip-wires it alleges they are hidden from voters. Yet, they’re right on page one of the Gillespie Tax Plan. And Gillespie talks about this in his campaign speeches. It’s not hidden from anyone.
The liberal-left Commonwealth Institute believes higher taxes are the answer to most problems facing our state. It criticizes the 10% tax cut proposal as part of its inbred opposition to tax cuts. It says that across-the-board tax cuts produce less money for lower income people than for higher income people and so it’s unfair. But giving the citizens a 10% tax cut regardless of where they stand on the income scale, means every family will pay 10% less in taxes and every family will have that 10% in additional cash from its tax bill to spend as it wants. So of course, those with lesser incomes and who pay less taxes will have less total cash from the tax cut, but every family will be 10% better off.
The Commonwealth Institute criticizes the tax cut plan because it will give projected state income increases back to the people rather than increasing government programs. It thinks this is the government’s money and not the taxpayer’s money. As with other liberal opponents to tax cuts, it believes denying all future increases in government expenditures is a cut in government programs which, of course, it is not. No program will be reduced because of Gillespie’s proposed tax cut. To say otherwise is simply not accurate.
And the anti-tax-cut-at-all-times opposition sneer at Gillespie’s basic number for the average household income. However, a little simple research confirms his numbers on which he built his tax cut plan. The U.S. Bureau of Economic Analysis says Virginia’s disposable income was $380,075,013,000 in 2015, and the U.S. Census Bureau reported Virginia had 3,062,783 households in 2015. Simple division produces an average household income of $124,095 in 2015. Grow that by only 1.36% per year to 2021, and you get $134,578 – Gillespie’s basic household number used in his Tax Plan.
If the opponents of tax reform want to argue, they should take it up with the Feds.
When run through the tax model designed by the Thomas Jefferson Institute and the economists at the Beacon Hill Institute in Boston, the Gillespie Tax Plan is projected to create over 50,000 new jobs and more than $300 million in new business investments.
Gillespie’s proposed 10% tax cut plan makes good sense, is based on sound numbers, and will create a stronger economy and that is good for everyone. Every taxpaying family, and every small businesses that pays these same personal rates, will pay 10% less in state taxes. That’s a good deal.
(This column first ran in the Roanoke Times on October 11, 2017)
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Scrap the SOL's and Move On

Posted on October 18, 2017 by matt ohern
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( This article is responded to by John Butcher in the next column.)
Maybe it’s time for Virginia to scrap the Standards of Learning (SOL) tests.
The SOLs arose in the mid-1990s as a way to provide feedback to the community on how well local schools were performing. It was a worthy experiment. Despite massive increases in spending in preceding years, the quality of education in United States was widely seen as deficient. Backers hoped that transparency would provide teachers, principals, school boards, parents and citizens data they could use to work toward the betterment of their schools.
As with so many reforms enacted with the best intentions, this initiative has gone terribly awry. There is little evidence that SOLs improve anything. Indeed, insofar as the standardized exams encourage teachers to “teach to the test” — more on that in a bit — they may do actual harm.
In short order after their enactment, the SOLs morphed into a means to hold schools “accountable” for poor performance. Schools with low levels of academic achievement were highlighted in local media reports and shamed for failing their students. Newspapers published SOL data for schools within their circulation zones, and parents used the data to guide home purchasing decisions. As parents voted with their feet, affluent households displaced poor households in “good” school districts, and poor households gravitated by default to the “bad” schools. In sum, the tests arguably had the unintended effect of aggravating residential inequality and making it harder for poor schools to improve.
Comparing schools with one another was problematic anyway because educational achievement is strongly correlated with socioeconomic status, the mix of affluent and poor children varied widely by school, and average scores reflected socioeconomic status as much as the quality of the teachers and staff. The Virginia Department of Education (VDOE) possessed the data to adjust scores for socioeconomic status so as to not unfairly penalize low-income schools but, for reasons that remain obscure to me, the department stopped publishing it.
Meanwhile, many teachers, principals and school boards learned how to game the system to dress up scores and avoid the shaming. John Butcher, author of Cranky’s Blog, and I have chronicled numerous scandals around the state — the relaxed test standards, the teacher coaching, the classification of sub-performing students as disabled, and sometimes the outright cheating. Newspaper accounts tend to treat these phenomena as isolated instances that happen to occur in their back yard, but they are in fact commonplace.
Perhaps the most insidious gaming of the system involves teaching to the test. As has been explained to me, the SOLs do not test students’ comprehensive knowledge in a particular subject. Rather, they sample knowledge in sub-topics and assume that if a test-taker gets the answers right for those sub-topics, they will demonstrate the same mastery across the board. Over the years, teachers have learned, to pick an example, that the math SOL will address regular polygons but not irregular polygons, so they spend more time teaching regular polygons and perhaps even skip the irregular polygons. Thus, insofar as teachers teach to the test, meaning that they emphasize certain topics over others, SOLs actually may encourage educational malpractice.
As the emphasis has shifted to holding schools accountable for poor performance, VDOE began using SOL scores to declare schools accredited or unaccredited. (There are various flavors of being unaccredited, depending upon whether schools are deemed to be making progress.) While the state can declare a school “unaccredited,” under the state constitution, schools answer to their school boards. The state does negotiate “Memoranda of Understanding” with chronic laggards but, as Butcher has documented, MOUs consist of educratic mumbo jumbo and are useless in turning schools around. At the end of the day, and not for any lack of trying, accountability remains elusive.
Virginia has doggedly tried to make SOLs work for more than twenty years now. We have enough experience under our belts, I would argue, to draw some broad conclusions. SOLs are deficient as a means of measuring students’ academic achievement; if anything, the teaching-to-the-test phenomenon hurts students. SOLs are useless as a means for improving schools’ academic performance or holding administrators accountable for results; teachers and principals are endlessly creative at gaming the system. And, by influencing people of means to buy houses near “good” schools, SOLs arguably have become an unwitting driver of socioeconomic and racial segregation.
I’m not saying that things will miraculously improve if Virginia did away with the SOLs. They exist for a reason. But we must acknowledge that tweaking and nudging a broken system won’t work either. I don’t have any great suggestions for what we put in place of SOLs. I can say that reform should be bottom-up, not top-down, and it should encourage creativity and experimentation. Failed experiments should be shut down, and successes should be replicated. We cannot afford more business as usual.
(This article first ran in Bacon’s Rebellion on October 10, 2017)
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Reform the SOLs, Don’t Kill Them

Posted on October 18, 2017 by matt ohern
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(This column responds to Jim Bacon’s article above.)
Honorable Sir!
Your Jeremiad on the Standards of Learning testing makes five basic points and concludes that it’s time to “scrap the SOLs and move on.” I’d like to mostly agree with your five points and suggest some different conclusions.
SOL Results Have Guided Home Purchase Decisions, With the Effect of Harming Low-Performing Schools
That is almost certainly true.
There is a plethora of Web sites dedicated to reporting score results – even one from the Department of Education. And surely one reason there are few school-age children in my Richmond neighborhood and many in your Henrico enclave is the quality of the schools.
Would you then have parents rely upon word-of-mouth rather than actual data in selecting a place to raise the family?  Would you conceal the performance of this appalling middle school from the parents who are paying the taxes to support its gross failure to educate their children?
It’s not the job of parents to harm their kids by sending them to an awful school in order to improve the school. It’s the job of the school board and the Board of Education to fix the awful schools. And it is far past time to hold the school, the school board, and the education board accountable if they don’t deal with problems such as the example in the link above.
To do that we must have a quality measurement. As one of your commenters pointed out, the education establishment loves to measure inputs: money, facilities, credentials. But those things don’t measure productivity. For sure the SOL is imperfect but it’s the only productivity measure we have at hand. We should be thinking of ways to deal with the imperfections, not relapsing to a system where the only quality measures do not in fact measure quality.
The SOL Penalizes Poverty
It’s clear that children from economically disadvantaged households underperform their more affluent peers on the SOL tests. It’s also clear that some school systems with large ED populations perform better (or worse, e.g., Richmond) than others.
Thus, the bare SOL pass rate is not a fair measure of school quality.
Should we then abandon measurement of educational quality or should we look to improve the measure?
If fact, we have a better measure that is essentially unaffected by economic disadvantage, the Student Growth Percentile. The State tells us:
A student growth percentile expresses how much progress a student has made relative to the progress of students whose achievement was similar on previous assessments.
A student growth percentile complements a student’s SOL scaled score and gives his or her teacher, parents and principal a more complete picture of achievement and progress. A high growth percentile is an indicator of effective instruction, regardless of a student’s scaled score.
And a low SGP tells us that the kid didn’t learn much in comparison to the other students who started in the same place. See this for a discussion of the way the SGP illuminated the awful productivity of some of Richmond’s teachers.
Yet our Board of “Education” has abandoned the SGP.  See this (scroll down to Part F) for a discussion of their bogus reasons.
Bottom line: We know the SOL is unfair to less affluent kids. We know how to correct for that effect but our Board of “Education” doesn’t want to use the tool that does that.  Is that a problem with the SOL or a problem with the Board?
Cheating
There is a long and ugly history of Virginia schools cheating to improve SOL scores. See this for a particularly cynical example. Go here and search for “cheat” to be inundated with data on the subject.
But is this a problem with the SOL testing or with the schools and the Board of Education?
If we take it that it’s crucial to have a measure of educational output, then we’ll have to be prepared to deal with attempts to skew the data. The (unacceptable) alternative is to forget about measuring teaching quality and to let far too many children be harmed by inadequate teaching.
Teaching to the Test
You, and others, condemn the SOL because it encourages teaching to the test. In fact that is not a problem; it is part of the reason for having the SOL.
Consider the alternative: If every school and, in some measure, every teacher gets to decide what shall be taught and what shall be on the exam, there can be no uniform measure of educational quality and no accountability (there’s that word again!).
Indeed, the Department of Education literature is ripe with discussion of “aligning the curriculum” to the Standards of Learning.  Thus, if we have appropriate standards, we get schools that teach the appropriate material.
In terms of your example: If we think irregular polygons are important, we can put them in the standards and in the test; that will assure that the schools will try to teach irregular polygons.
In short, teaching to the test is not a bug; it is a feature.
Accountability remains elusive.
I like to talk about the argyle sock effect: If you go into an organization and find the employees wearing argyle socks, you know that the boss wears argyle socks.  First corollary: You know it’s a good grocery store if you see the manager handling checkout or corralling carts.
The first step for improving education is evaluating how well the teachers teach.  Yet the current system does not work and the Board of “Education” has abandoned its tool, the SGP, that can work.  Indeed, their standards for evaluation are a crock.
The Board of Education is wearing white socks with its dress shoes.
Accountability starts at the top: If the Governor were serious about improving the schools, he would fire the current members of the Board of Education and replace them with people who understand accountability.
The Governor has not done so.  The Governor is wearing white socks with his dress shoes.
Conclusion
As I said at the start, you have correctly identified major flaws in the current system for measuring student achievement. But I think your solution would take us back to the Bad Old Days when there was no objective measure that could allow us to hold public school teachers accountable for the job they do with our children.
That said, thanks for shining some Bacon’s Rebellion light on this important subject.
(This article first ran in Bacon’s Rebellion on October 12, 2017)
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