Gorsuch Could Correct Regulatory Overreach

Posted on February 15, 2017 by matt ohern
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Most people have never heard the term “Chevron deference” and, if they have never practiced administrative law, could not be blamed.  But, in the weeks ahead we are going to hear a great deal about it.  Here’s why.
“Chevron deference” refers to a rule the Supreme Court of the United States established in the case Chevron U.S. A. v. National Resources Defense Council, Inc., 467 US 837 (1984), for the federal courts dealing with law suits against federal administrative agencies.  The “Chevron deference” rule puts the burden on the farmer, entrepreneur, or small business owner to prove the federal agency is wrong about its regulations rather than putting the burden on the agency to prove the regulations are necessary in the first place.
The reader couldn’t be blamed for asking what difference could that possibly make in a person’s day-to-day life or business.  Supreme Court nominee Judge Neil Gorsuch has explained what it means and why it is a horrible idea for family farmers, entrepreneurs, and small business owners.  Judge Gorsuch, currently serving on the U.S. 10th Circuit Court of Appeals, has been a leading voice in the judiciary calling for a change to the rule which kills jobs and has allowed federal busybodies to bully farmers and job creators. In other words, Judge Gorsuch sides with the farmers and job creators against the job-killing regulators and says courts should not automatically side with regulatory agencies.  Judge Gorsuch has questioned the constitutionality of the rule which concentrates executive, legislative, and judicial powers in the hands of executive agencies in violation of the Constitution’s separation of powers.
Judge Gorsuch would be a strong voice on the U.S. Supreme Court for the kind of clear thinking and constitutional fidelity previously supplied by the late Justice Scalia.  The Judge was appointed to the U.S. Court of Appeals in 2006 by President George W. Bush after having served as an attorney in the U.S. Department of Justice, law clerk to two U. S. Supreme Court Justices, worked in the private sector, and, having now served as an appellate judge for over a decade, authored numerous opinions for the U.S. Court of Appeals.  Judge Gorsuch is renowned for his clear and concise writing and according to his colleagues and law clerks he is also known for his good sense of humor.
The Senate has the opportunity to restore common sense to the bench and put a justice in place who will not automatically defer to unelected bureaucrats in government agencies when they want to regulate every pond on Virginia farms as a wetland and put our famers and entrepreneurs out of business.  Judge Gorsuch faced no opposition when he was confirmed by voice vote by the Senate for the Circuit Court of Appeals.  His strong academic background, degrees from Columbia, Harvard Law, and Oxford, indicates a keen mind and his record of clear common sense opinions demonstrate his mastery of the law and fidelity to the Constitution.
Minority Leader Charles Schumer (D-NY), Senator Diane Feinstein (D-CA) the Ranking Democrat on the Senate Judiciary Committee, which will hold confirmation hearings, and former Judiciary Committee Chairman Patrick Leahy (D-VT) were all in the in the Senate when Gorsuch was last confirmed. No doubt, they will ask the Judge about his position on “Chevron deference” but it would be odd, indeed, for them to claim now that such an experienced jurist was anything other than fit for the Supreme Court.  The American people will be watching closely and will not be amused by partisan shenanigans.
Judge Gorsuch deserves a fair hearing and if the Senate finds him fit, as it should, a swift confirmation.  As so many on the left have said, the Supreme Court needs nine.
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Military Families Deserve Choices

Posted on February 15, 2017 by matt ohern
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Military dependent children move 6-9 times during their K-12 years, according to the Military Child Education Coalition (MCEC). Although there is much uncertainty in every move, Military families typically begin the relocation process with two questions: 1) Where will we live? 2) Where will our children attend school?
When transitioning to Virginia, military families learn quickly that unlike most states, these two questions are condensed into one. The address a family selects determines the public school students will attend. Too often, this address also determines the quality of the public school a student may attend and the opportunities a child has for advanced academic programs.
A move to Virginia, home to the highest number of military dependent children in the nation, is a cause for stress for many families with school age children. Military families relocating near some of our largest installations learn quickly that the quality of public schools is at best, uneven.
Fifty-one percent of the schools in Virginia that were denied accreditation for the 2016-2017 school year, are located in Hampton Roads. The Hampton Roads area hosts one of our nation’s highest concentrations of military families and is home to the largest Naval Base in the United States.
Military families have few good options. They may choose base housing and accept the uneven quality of the public schools. They may elect for longer commutes to live in communities with accredited public education options. They may homeschool or invest in private education. They may choose to voluntarily separate from their service member either temporarily or for the length of the orders (geographic bachelorhood).
Or they may elect to leave military service or start that process by indicating that they are less willing to move to certain locations.

“If one denies orders, it’s a career suicide”, according to Brandy Sharpe, a military spouse and parent. “We purchased a house over our housing allowance rate, in a higher performing school district with better opportunities for children, and have Ramen noodles as a staple meal.  These are the facts of our choices. I feel that many do not understand the sacrifices we make.”

Virginia has a choice. The Commonwealth may elect to retain the status quo or improve access to public school choice options for military families.   Legislation now working its way to Governor McAuliffe would create new opportunities for quality public charter schools in areas where one or more schools have failed to be accredited for multiple years.  This would be of immense benefit to children whose parents have been assigned to the Hampton Roads area, as well as Fort Lee.
All children deserve the choice of attending a high quality public school. There are over 6,700 charter schools in the United Stated educating nearly three million students. At least eight are located on military installations and also open for the children of civilians.
Public charter schools would also offer an opportunity for families to have the option of attending a school not determined by their address. For a military family, this has the added benefit of enrolling students in school while in temporary housing and keeping their child in the same school regardless of the school zone they choose for permanent housing. During the already stressful transition process, students would not be forced to move to several different schools during their first year of relocation as their parents work to secure affordable housing or elect to live on base.
Charter schools are highly accountable based on student achievement and in most states, military families have the choice of a charter school.
Requiring military families to enroll their children in schools that fail to meet minimum expectations for accreditation in Virginia has been done long enough.
Charter schools are not a magic bullet. They are a choice. The families of military dependent children and all families deserve at least a choice when their address assigns their children to a school that fails to meet the minimum standards.
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Making the Case for Medicare Advantage

Posted on February 15, 2017 by matt ohern
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By Kristen Grow
Government watchers know there are two parts to federal policy. First, there is the law passed by Congress. Second, there is how agencies implement the law. For Medicare Advantage, congressional support remains robust – but the program’s future lies squarely with the Centers for Medicare and Medicaid Services (CMS).
CMS reviews and sets rates, which is an important milestone for beneficiaries. Adjustments directly affect coverage. Health plans must have sufficient funding to remain in the market and provide the comprehensive benefits seniors and disabled individuals—including 204,000 Virginia residents—rely on.
This year’s process will take on greater-than-usual importance. With new faces occupying key posts, senior CMS officials must be made aware of the program’s many benefits so they understand why 90 percent of enrollees are happy with their Medicare Advantage plans.
Choice plays a big part in satisfaction levels. Medicare Advantage enrollees shop for a health plan that best meets their needs. Whether a beneficiary wants to avoid monthly premiums, opt for a plan a current doctor accepts, or match the pharmaceutical formulary to their treatment, a suitable product is likely available in the Medicare Advantage market.
Beneficiaries also want value. While all Medicare Advantage health plans are required to match traditional Medicare’s benefits, Medicare Advantage consistently incorporates much more. Enrollees gain access to comprehensive coverage at a very affordable cost, often just a $5 co-pay for most services.
That includes a wide array of preventive care. Plans assist enrollees in taking control of their health with health screenings, disease management programs, nurse help lines, and in many cases, free senior-friendly fitness memberships to help maintain strength, cardiovascular health, and range of motion.
The array of services combined with the financial protections—including a cap on annual out-of-pocket expenses—help explain the high enrollment in Medicare Advantage across a diverse population of beneficiaries. In fact, approximately 45 percent of Hispanic and 30 percent of African-American beneficiaries choose Medicare Advantage, as do 37 percent of beneficiaries with incomes less than $20,000.
The true significance of Medicare Advantage, however, can be found in better health. The American Journal of Managed Care found Medicare Advantage’s hospital readmission rate to be 13 percent to 20 percent lower than traditional Medicare. And Medicare Advantage enrollees make more appropriate use of services, according to Health Affairs. They also enjoy lower incidences of emergency services, fewer hip replacements, and higher rates of coronary bypass surgery in accordance with national guidelines.
These statistics indicate enrollees are receiving better care. They’re staying more nimble, so they avoid falling. Post-hospital care is preventing complications. And disease management and appropriate medical interventions are reducing crisis events.
Better health is good for patients – and the federal budget. This fact has earned Medicare Advantage broad support from lawmakers in both parties. Elected officials are once again stepping forward. Already a bipartisan groups of 65 U.S. Senators, including Virginia’s Mark Warner, sent a letter to CMS in support of Medicare Advantage. For the 18 million Americans who choose the program – that is a welcomed start.
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“Why Would We Not Want to Do More?”

Posted on February 1, 2017 by matt ohern
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Attracted by their “Free Breakfast for Children” and community health clinic program, Lois Bias joined the Black Panthers in college.
Today, having long abandoned the Panthers after they turned violent, she continues to advance the mission of helping people out of poverty, but focuses her attention on educating children in the school she built, Precious Blessing Academy.
For Lois Bias – now a pastor — educating a child means more than just the ABCs. And the task is immeasurably harder because of the circumstances from which the children come.
“So many of our students are in a fragile state,” she said in testimony before a Virginia House Finance Subcommittee. “They are often without mothers or fathers and are sometimes raised by grandmothers and grandfathers. They live on streets that are dangerous, in an environment that challenges them with drugs, sex, and inappropriate behavior.”
“These children come to us needing more than just an education in academics. They need an education in how to grow up and take part in civil society. They need protection that extends beyond the school day. They need involved and engaged adults in their lives to help guide them to adulthood. They need teachers who view what they do as a mission, … not just a job.”
Nearly all of her 73 students came to her from Richmond, Petersburg and Chesterfield Public Schools, parents seeking a better opportunity for their children.
“These children do not thrive in the public school system,” Bias notes. “Not because they are public schools but because they are a system, and systems don’t lend themselves to the kind of involvement these children desperately need. They need to be surrounded not just with educators, but with a family environment big systems can’t give.”
For Bias, Virginia’s Education Improvement Scholarship Tax Credit (EISTC) has enabled her to help a few more children than she has in the past: This year 6 children are receiving scholarships through the EISTC.
But she has more children who could be helped, and not enough scholarships to help them.
That problem – one duplicated at 139 schools around the state — would be resolved if Delegate Jimmie Massie’s proposal to expand the EISTC was approved. Currently, an individual or corporation donating to a foundation offering scholarships to low income children to attend schools like Bias’ receive a 65 percent state tax credit. Last year, 2,419 students received scholarships.
Among the 18 states with similar credits, only two have a lower tax credit. Those with higher credits are able to help more children In Florida, for example 77,000 children receive scholarships; in Pennsylvania, the number is 50,000; in Georgia, it’s13,000. Massie’s proposal would raise the credit to 90 percent, making it competitive with those states and drawing in additional dollars to help Virginia’s children.
Pastor Bias has seen first-hand the negative effect of a lower tax credit. One of her donors has business facilities in multiple states. “In those states,” she notes, “that company gives twice as much because they can do it at no cost to the company.”
But helping children by expanding the tax credit faces severe opposition from some, fueled by an incomplete analysis. Public educator groups claim increasing the tax credit would cost “millions in tax dollars,” citing an official Fiscal Impact Statement that such an increase would result in a “$2.6 million negative revenue impact.”
But the problem with static Fiscal Impact Statements is that they are one sided. They don’t report that tax dollars “lost” from the tax credit are more than balanced by students who leave the public schools and whose education is no longer funded by the state.
A complete assessment would not only include the “cost” to the state of the tax credit, but also the “savings” to the state from students no longer being paid for in the public school system. To do otherwise is akin to adding up the costs of building computers but not including the revenue from selling them, and concluding that Apple is losing money instead of earning more than $50 billion.
In fact, last year Virginia “lost” $7.2 million because of the tax credit and its accompanying deduction. But it “saved” $11.1 million because of students it no longer had to educate – a net savings of more than $3.9 million.
These savings would increase if the tax credit was increased, because more taxpayers will use the program to help more children and therefore reducing state expenses further.
And that is what Massie’s legislation is about: A stimulus to encourage investment in Virginia’s children, rather than those in other states.
Pastor Bias puts it more succinctly: “Because of this program, our school saved the state the cost of educating six children. And we are saving six lives.
“Why would we not want to do more?”
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Cost Cuts Coming in a Post-Obamacare Health System

Posted on February 1, 2017 by matt ohern
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The University of Virginia Health System will need to dramatically cut costs to adapt to a post-Obamacare world, Dr. Richard P. Shannon, UVa’s executive vice president for health affairs, said yesterday.
As the Daily Progress reports, Shannon briefed members of the Medical Center Operating Board:

Republican plans, written to replace the Affordable Care Act, likely would favor a market-based approach that forces insurers into a price war. Though it may lower insurance costs for consumers, it would mean lower reimbursements to hospitals that could add up to hundreds of millions of dollars over several years, Shannon said.

“Take it all together and I think you can predict there will be enormous pressure on cost in the health care enterprise over the course of the next iteration of the Affordable Care Act,” he said. “The honest answer is we have to get more efficient and we have to get more productive.”

Shannon highlighted some of the tools the health system might use to drive down costs. Artificial intelligence might be used to diagnose some types of cancer. Big data can help doctors predict health problems before they arise. Telehealth can extend healthcare into outlying rural areas. Last year, UVa made 11,000 health visits; Shannon wants to increase that number to 60,000.
The UVa Health System will have to change, as market pressures wipe out hospitals that fail to adapt, he said. “You’re going to see hospitals disappear. The question is, who are the 50 percent who are going to survive?”
Bacon’s bottom line: I wouldn’t want to be a hospital in a post-Obamacare world, but as a health care consumer, I find Shannon’s analysis heartening. As a nation (and a state) we need to shift our focus from who pays for health care, invariably a win-lose proposition involving wealth transfers from one group to another, to a focus on productivity and innovation, which will drive down costs for everyone. If we want to make health care more affordable and accessible, we need to make it less expensive.
Shannon approaches the challenge from the perspective of what UVa can do to drive down costs. Virginia policy makers need to think about what the Virginia health system can do to drive down costs. And that might require thinking previously unthinkable things.
First, if emerging federal policy relies upon competition to drive down costs, state healthcare policy should do so as well. Not just competition between insurers but between all kinds of delivery platforms, from hospitals to independent, ambulatory surgery centers. If Congress passes the kind of legislation Shannon anticipates, it is imperative that Virginia repeal the Certificate of Public Need (COPN) regulations that protect hospitals from competition.
Second, we must come to peace with the prospect of some hospitals going out of business. Frankly, many rural hospitals may no longer make economic sense. In their place, we might well see more clinics, more nurse practitioners, more outpatient surgery centers, more telemedicine, and more travel to regional hospitals for complex procedures. If done properly, the result could be better and cheaper health care for rural Virginians.
Michael D. Williams, UVa’s Center for Health Policy, also told the medical center board that a big cost saver could be the sharing of medical information to avoid duplicate tests and scans. Reforms to patient-privacy laws and more effective data sharing could reduce redundancy. By necessity, some of those data-sharing reforms will come from the federal government, but Virginia should be looking at what can be done on a state level to foster the efficiencies.
Shannon has given the warning. Big change is coming. Will Virginia be prepared?
(This article first ran in Bacon’s Rebellion on January 31, 2017)
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