Category Archives: Gov’t Oversight and Accountability

Missouri Version of the Healthy Indiana Program

I’ve attached a PDF of mock legislation which would implement a Missouri version of the Healthy Indiana Program, a Medicaid reform enacted in Indiana in 2007 under former Indiana Gov. Mitch Daniels.

Like Paul Ryan’s proposed Patients’ Choice Act, the Healthy Indiana Program provided for premium assistance for previously uninsured Indians who earned up to 200 percent of the federal poverty level. Like Ryan’s bill, Mitch Daniels’ Healthy Indiana Program is just one of many conservative proposals over the past 25 years to bring market forces to the Medicaid program – and to do so at the same time that they increase effective eligibility rates for the working poor. The Medicaid transformation proposal I sponsored last session attempted to use the same market forces to bring down the costs of health care for all Missourians.

The Obama administration recently extended Indiana’s waiver to continue running HIP. Eligibility, however, will be reduced to 100 percent of the federal poverty level, and Indianans on the program between 100 and 200 percent of the federal poverty level will be informed of the opportunity to enroll in a subsidized exchange plan. (Indiana has an exchange being run by the federal government just as Missouri does.)

As with the mock bills modeled after Arkansas and the Patients Choice Act, this mock legislation is not my proposal for Medicaid transformation in Missouri – and does not have my endorsement. Instead, it is just another example of outside-the-box thinking which, if enacted, would bring market forces into Missouri’s Medicaid program.

Indiana – Healthy Indiana Plan in Mo Statute

Missouri Version of Paul Ryan’s Patients Choice Act

I’ve attached a PDF of mock legislation which would implement a Missouri version of Rep. Paul Ryan’s Patients Choice Act of 2009, which was presented as the Republican alternative to ObamaCare at the time it was being debated in Congress. The Senate champion of the measure was Oklahoma Sen. Tom Coburn.

The Patients Choice Act would have essentially increased Medicaid eligibility nationwide for families up to 200 percent of the federal poverty level. But it would have done so through tax credits and by providing these working poor families with debit cards through which they could use to buy their own private insurance. Ryan’s bill is just one of many conservative proposals over the past 25 years to bring market forces to the Medicaid program. The Medicaid proposal I sponsored last year included a similar approach – turning Medicaid recipients into participants by empowering them to choose their own health insurance plan in a truly competitive system which rewarded them for making affordable choices, and by providing each with a pre-paid debit card to use for co-pays in order to get them thinking about the costs of services just as every Missourian who pays the full freight for their health care does.

As with the mock bill modeled after Arkansas which I posted last week, this mock legislation is not my proposal for Medicaid transformation in Missouri – and does not have my endorsement. Instead, it is just another example of outside-the-box thinking which, if enacted, would bring market forces into Missouri’s Medicaid program.

Missouri Version of Paul Ryan’s Patients Choice Act

Interim Committee on Medicaid Transformation Hearing Information for September 26

September 26, 2013

House Hearing Room #1 or #3 (depending upon availability)

1:00 p.m. until testimony concludes or 5:00 p.m. at the latest

TENTATIVE SCHEDULE OF TESTIMONY

  • What’s a waiver and how can we qualify for one?
  • The Arkansas Model – Rep. Noel Torpey
  • The Iowa Option – Rep. Noel Torpey
  • The Healthy Indiana Program – Rep. Jay Barnes
  • Paul Ryan’s Patients Choice Act – Rep. Jay Barnes

Further details to follow.  

Troubling Social Promotion Policies in St. Louis Public Schools

State Auditor Tom Schweich released a report yesterday on St. Louis Public Schools. Two points worthy of quick note:

  • The district violated state law by regularly promoting students to the next grade level even if they can’t read. The P-D explains:

But what troubled Schweich the most is the district’s practice of moving children to the next grade level even though their reading skills are sub par. More than 2,000 students tested at the “below basic” level — the lowest performance category — in the 2011 and 2012 reading section of the Missouri Assessment Program. Yet just 158 and 128 students were held back those years, respectively. Holding back each child who is behind in reading, as mandated by state law, would be too costly, administrators told Schweich’s staff.

“I don’t know what the priorities are as far as finances go, but at least in our view students who can’t read should be the highest financial priority,” Schweich said in downtown St. Louis.

Rick Sullivan, president of the district’s state-imposed Special Administrative Board, said the retention issue was a tough problem to solve.

“The number of students who would be retained would be staggering,” he said. “But that’s the question people have asked for years and years.”

Social promotion might help the school’s finances in the short-run, but doesn’t help the kids – or the district – in the long-run. 

  • Schweich found the district did an inadequate job of detecting or deterring cheating on standardized tests. There’s good news here though. In 2012, I sponsored legislation to require the Department of Elementary and Secondary Education to buy software to detect and deter cheating on standardized tests statewide. That bill did not pass, but after continued discussions with DESE, the department requested funds in this year’s budget to buy the software. Because it just passed in this year’s budget, the software wasn’t available for use during the testing periods covered by Auditor Schweich’s report. However, it should be available everywhere in the state for this year’s standardized tests. 

How Did Unions Get Exempt from Ethics Requirements?

The unmatched Dave Drebes reports this morning that unions somehow exempted their members from Missouri’s ethics laws. Section 105.475.2 provides that lobbyist reporting rules “shall not apply to any member of a union who is acting in either an employment capacity or contractual capacity in association with the union, except if such person’s employment or contractual capacity is as a lobbyist for the union.”

To be clear, I don’t know of any high-frequency union lobbyists who fail to comply with the lobbying statutes anyway. Even if they’re exempt, they register anyway. But it’s more than a little ridiculous that this special interest exception exists.  

Can’t Make This Stuff Up – Lib Defends Lottery Tickets for Welfare Recipients

You can’t make this stuff up. The legislature passed a bill this year to prohibit the use of welfare for strip clubs, liquor, or gambling. Glenn Koenen of the Missouri Association for Social Welfare went on the Charlie Brennan show to argue that welfare (TANF) recipients should be allowed to use their welfare to buy lottery tickets.

Seriously? Koenen argues that since TANF doesn’t provide much money, so “they can’t be wasting their money” if they’re making less than $300 a month.” Ummm, lottery tickets are a complete waste of money. Why would any advocate for the poor want welfare recipients spending their money on scratch-offs that give them a 15-second high – and just pours their money down the drain. If a person has enough money to buy a lottery ticket, they shouldn’t be on welfare.

Koenen makes me think we didn’t go far enough. Perhaps we should pass a law requiring any person who wins the lottery while on any welfare program to re-imburse the state of Missouri for all prior benefits received – times two?

One point raised in the Brennan interview, however, might deserve a second look. The bill they’re discussing (1) has a potential “void for vagueness” problem for items outside of stip clubs, liquor, and gambling that needs to be fixed, and (2) likely needs a little better clarification on the responsibilities of store clerks.   

Peggy Noonan and Bill McClellan on Work

Two good columns today on an undercurrent of fear that the American dream is slipping away.

Noonan writes on the value of work, and its integral place in the American character. She writes that concerns over work and unemployment numbers are about more than some Gradgrindian obsession with statistics and fancy charts. Work has a spiritual component:

A job isn’t only a means to a paycheck, it’s more. “To work is the pray,” the old priests used to say. God made us as many things, including as workers. When you work you serve and take part. To work is to be integrated into the daily life of the nation. There is pride and satisfaction in doing work well, in working with others and learning a discipline or a craft or an art. To work is to grow and to find out who you are.

In return for performing your duties, whatever they are, you receive money that you can use freely and in accordance with your highest desire. A job allows you the satisfaction of supporting yourself or your family, or starting a family. Work allows you to renew your life, which is part of the renewing of civilization.

Work gives us purpose, stability, integration, shared mission. And so to be unable to work—unable to find or hold a job—is a kind of catastrophe for a human being.

The Committee on Government Oversight and Accountability talked about this when we convinced the Department of Social Services to cancel a contract it had which would have encouraged Missourians to apply for disability who might otherwise be able to work. A life without work – or a sense of mission – is not a full life.

Bill McClellan gives a particular example from St. Louis in his own column today. McClellan tells the story of Tom Nutter, a 67 year-old attorney in St. Louis, who, despite experience, education, and a willingness to work, can’t find a suitable job – and has moved into a small house just about a mile from where he grew up – where he benefitted from a stay-at-home mother because his non-college educated father was able to support a family of six kids and put them through private school.

In his typical style, McClellan just tells his story.  Noonan asks for hope – real hope this time:

What is needed now is a political leader on fire about all the possibilities, not one who tries to sound optimistic because polls show optimism is popular but someone with real passion about the idea of new businesses, new inventions, growth, productivity, breakthroughs and jobs, jobs, jobs. Someone in love with the romance of the marketplace. We’ve lost that feeling among our political leaders, who mostly walk around looking like they have headaches. But American genius is still there, in our garages. It’s been there since before Ben Franklin and the key and the kite and the bolt of lightning.

I’m with Peggy. The American people don’t have “hope” that bigger government is going to swoop in and save the day. And, to be clear, neither do they believe that government should just let the Wall Street financiers continue to wreak havoc on the economy with no restraint and no consequence. Noonan’s is a hope based on actual productivity – the building of real businesses.

There are a number of different policies to encourage this: we could start by dramatically reducing our federal corporate income tax rate – which is the highest in the entire developed world. It would continue with tax reform led by Rep. Dave Camp (R-Mich) which removes special interest tax breaks from our tax code and reduces the tax burden on small businesses. There are other, of course, but those will wait for another day…

Update on Potential Gun Bill Conflicts – Thinking Out Loud

You learn something new everyday. Regarding my earlier post comparing HB 436 and SB 75, §21.250 declares that veto overrides “shall become effective thirty days after approval by constitutional majorities in both houses of the general assembly.”

As a result, not only would a judge have to pretend we have a legislative time machine, they’d also have to ignore the plain language of §21.250 

To not un-do SB 75 then would require a “these words have no meaning” ruling discussed in the earlier post in which a judge declares that words in bills don’t count unless they’re bold, underlined, or bracketed.

As with before, I’m still open to other theories.

….

Interesting reaction. “A court’s going to bend over backward on this one to get to the intent – even with the problems identified,” says one lawyer. My response, “Yes, that very well could be right.”  

Why I’m Voting to Lower Taxes

When the General Assembly reconvenes in a few weeks for veto session, the biggest question before the body will be whether to override Governor Nixon’s veto of HB 253, the first comprehensive tax cut to pass in Missouri in nearly a century. I voted in favor of HB 253 and will do so again at veto session.

Here’s why: economic growth matters.

States with growing economies have lower unemployment rates, decreasing welfare programs, and increased state revenue. To quote President Kennedy, “A rising tide lifts all boats.” States with stagnant economies have higher unemployment rates, more welfare, and frequent budget crises – all of which can work to start a vicious cycle of increasing taxes and fees to keep up with growing needs even though the result of such hikes is to slow or halt the economic growth needed for a state to move forward.

Today, it’s easier and easier than ever for entrepreneurs and job creators to move locations.  As a result, Missouri must compete with surrounding states and other countries, like India and China, to attract investment. In an age where “the world is flat,” capital flows easily through the path of least resistance, including human capital.

So, how do we spur economic growth? Over the past decade, it’s obvious the legislature has taken the wrong approach. Instead of focusing on broad-based tax relief that lowers rates for all businesses, the focus has been on gimmicks and targeted tax breaks limited to businesses savvy enough to hire high-powered lawyers and lobbyists to petition the Department of Economic Development for special treatment. Unfortunately, this special favors approach has proven not to work for the larger economy. Often, it doesn’t even work for the savvy supplicant. (See Mamtek, as the worst example.) This approach has not worked. Over the past decade, Missouri has ranked 48th in the country in economic growth.

We need to take a different approach – one that incentivizes growth for all businesses and encourages entrepreneurial activity to grow Missouri’s economy. With HB 253, we reject the vicious cycle of tax hikes and further economic stagnation and choose a virtuous cycle of economic growth instead.

Of course, opponents of HB 253 paint a different picture. They take the vicious cycle approach and claim reducing tax rates puts education funding at risk. Governor Nixon has even taken the constitutionally dubious approach of pre-emptively withholding funding from education or other programs to scare certain representatives into voting his way. Opponents claim HB 253 will cost the state approximately $800 million. What they don’t tell you, however, is that (1) this cost estimate does not come from actual reductions in net revenues, but instead from slower increases in revenue, and (2) their analysis assumes zero economic growth from the reduction in marginal tax rates.  

Another argument of opponents is that drafting errors with HB 253 should prevent the legislature from acting on this measure.  Instead, opponents argue we should wait until next year. On this, the opponents have good points. All too often, the General Assembly acts with such haste in the last few weeks of session that drafting errors slip through the process. This isn’t a new problem – but it is one that we need to fix. In regards to HB 253, however, the legislature can and should take action now to lower the tax burden on all Missourians – and then immediately fix any drafting problems with the bill. I trust that Democrats will join us in clarifying the language in HB 253 on prescription drugs and the Marketplace Fairness Act. 

Will the Unconstitutional Gun Bill Put Conceal-Carry Back with DOR?

I’ve not shied away from explaining my constitutional objection to the so-called Second Amendment Preservation Act. The bill is plainly unconstitutional and has no chance of being upheld. A federal court of appeals recently struck a similar (but not as constitutionally offensive) statute from Montana. Robert Levy, chairman of the Cato Institute’s board of directors told the New York Times that only “a few really radical self-proclaimed constitutional authorities” think it has a chance. And there’s not a single case in two centuries of constitutional case law in which a federal appellate court has upheld a single state’s authority to (1) declare a federal statute unconstitutional on its own, and (2) criminalize the enforcement of a federal law by federal agents.

Never mind those pesky facts, however, cry the proponents of the bill. Constitutional torpedoes be-damned, full-steam ahead!

But, in looking a little closer at the bill, I think there’s at least one other problem worthy of a long second look: passing HB 436 in veto session may undo SB 75, a bill which was passed at least partly in response to revelations that the Department of Revenue shared sensitive conceal-carry permit data with federal authorities.

Senate Bill 75 transfers responsibility for conceal-carry permits from the Department of Revenue to local sheriffs. Gov. Nixon signed the bill and it took effect on August 28, just as every other signed bill does.

SB 75’s transfer of responsibility for conceal carry can be found in §571.101 and §571.107, among other places. HB 436 also modifies those sections – but in different ways. Rather than track the language of SB 75, HB 436 makes its changes from the version of those statutes as they existed in May of this year.

The Missouri constitution, statues, and case law are clear on how courts interpret changes to statutes in different bills passed at the same time. In most states, the bill which is signed last is the one that governs to the extent it is any different than the previous bill. In Missouri, however, Art. III, Sec. 29 of the state constitution declares that no law shall take effect “until ninety days after the adjournment of session.” Section 1.130 further clarifies that all laws take effect “ninety days after the adjournment of the session at which it is enacted.” In Berdella v. Pender, the Missouri Supreme Court explained that the typical “later in time rule” does not apply because under the Missouri Constitution and §1.130, bills passed in the same legislative session have “the same effective date” so that a later signed bill does not negate the earlier signed bill.

Had Gov. Nixon signed both SB 75 and HB 436, there’s no doubt that the statutes would be capable of reconciliation because they would have taken effect on the same day and changed different parts of the same statutes.

Gov. Nixon, however, did not sign both bills. Senate Bill 75 took effect on August 28 – immediately changing the statute. When the legislature re-convenes for veto session and considers HB 436, we will be voting on language for §571.101 and §571.107 that matches the old statute, not the existing statute.

Because the underlying statute has changed, there’s a real question whether HB 436, which is based from the old statute, will put conceal-carry responsibility back with the Department of Revenue. To my knowledge, it is a question for which there is no precedent in Missouri history and no direct guidance.

In order for the override of HB 436 to not hit the re-set button on conceal-carry permits, it appears a court would have to either:

1. Engage in the legal fiction that the effective date of legislation passed in a veto session is the same as the effective date as a bill passed in regular session – even if that requires a special legislation time-machine as it would in this case.

2. Rule that the language in legislation that does not change the current statute has no legal impact. In other words, a court would have to rule that some words have no meaning because the legislature is really only voting on the boldedunderlined, or [bracketed] words in a bill.

or

3. Engage in an analysis on legislative intent and rule that clearly the intent of the legislature was not to undo SB 75. The problem with this approach is that Missouri courts traditionally shun analysis of legislative intent – and there is not legislative history in Missouri as there is with the federal government. Moreover, from a conservative perspective, courts which take off on legislative intent hunts veer from their proper constitutional role. As explained by Justice Scalia:

The Constitution gives legal effect to the ‘Laws’ Congress enacts, not the objectives its Members aimed to achieve in voting for them… [I]t is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of ‘history’ that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.” Graham County Soil v. U.S.

In this case, to get at the legislative intent, a court has to take an eraser to actual words in the bill itself.

It seems to me that a reasonable and conservative position a court could take would be to rule that (1) there are no legislative time machines, and (2) words have meaning. Under this interpretation, HB 436 would effectively overturn SB 75 and return responsibility for conceal-carry permitting back to the Department of Revenue.                 

But again, we are in uncharted territory here. A court could certainly rule otherwise. And maybe there’s a case from another state that’s on point or relevant? At the very least, it’s a fascinating legal question.