Bluegrass Beacon: Make health care affordable again

Logo

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

Whether the American Health Care Act (AHCA), which narrowly passed the U.S. House of Representatives last month, offers an effective repeal and replacement of the Affordable Care Act (ACA) – affectionately known as Obamacare – is the subject of much debate as the Senate takes up another attempt to deal with the failed health care fiasco.

It’s indisputable, however, that any replacement plan failing to deal with cost – the primary malady affecting health-care policy – is an effort in futility.

A growing body of evidence suggests that not only has Obamacare done little to address the cost of health-care products and services, it’s exacerbated the problem.

Recent analysis by the U.S. Department of Health and Human Services indicates average premiums are 105 percent higher for Americans in the 39 states purchasing policies through the federal exchange in 2017 than for individuals’ plans in 2013 – before the exchange was created.

The analysis further unpacked reports that the average individual market premiums rose from $2,784 before Obamacare had kicked up to $5,712 in 2017.

“Affordable” Care Act, anyone?

All of this, it seems, would produce a wonderful opportunity for Republicans, who control Congress, the presidency and most state legislatures to use the leverage given them by voters to tattoo history with:  “Here’s how you do health-care reform,” and do it right.

Don’t get your hopes up.

Insurance-company lobbyists and welfare recipients have joined forces to weaken the resolve of many legislators who campaigned for changing a policy that never should have been implemented in the first place.

We would’ve been much better off seven years ago, instead of passing Obamacare, to adhere to the wise adage of President Calvin Coolidge: it’s “much more important to kill bad bills than to pass good ones.”

Still, killing not only Obamacare but its foundational ideas and approaches remains a priority.

More than reasonable doubt exists concerning whether the AHCA comes anywhere close to doing this – with its Obamacare-like approaches to taxes, subsidies and even mandates.

Northern Kentucky congressman Thomas Massie, one of 20 Republicans to oppose the AHCA, sassily compared the legislation to a kidney stone, charging “the House doesn’t care what happens to it, as long as they can pass it.”

Yet even when it comes to something as politically charged as whether we’re going to replace a health-care policy bearing the name of a Democratic president with a Republican-created substitute, progress can be made regarding critical policies in a bipartisan way.

There is, for example, strong support for making the cost of care transparent.

Costs have largely been hidden in our days of low co-pays, employer-provided plans dominated by third-party administrators and government programs.

“I don’t think I’ve ever had a Medicaid patient ask me how much something costs,” Dr. Cameron Schaeffer, a Lexington-based pediatric urologist and proponent of free-market policies, said on KET’s recent Kentucky Tonight program.

Neither Obamacare nor the AHCA effectively connects patients with cost, which is critical to making America’s great health care affordable again.

One viewer’s email read by Kentucky Tonight host Renee Shaw noted, “a free market only works when there is competition.”

Both Schaeffer and fellow KET panelist Dr. Barbara Casper, an internist, professor of medicine at the University of Louisville and Obamacare supporter, agreed providers should post their prices in a clear and understandable way.

Doing so would “help patients know what they’re getting into” and “would also allow for … more competition,” Casper said.

“I think we need to do everything we can to lower costs,” she added.

Whatever your political belief system, you will bear the burden or at least the consequences of higher health-care costs.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Beacon: Holding public records hostage

Amye BensenhaverBy Amye Bensenhaver, Guest Columnist

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

While employed as an instructor at the University of Kentucky’s School of Journalism, former hostage Terry Anderson recounted his five-year battle with federal agencies to obtain copies of public records under the Freedom of Information Act (FOIA) relating to the government’s efforts to secure his release from Hezbollah kidnappers during his nearly seven-year captivity.

Anderson described his bemusement when agency officials suggested he obtain signed releases from his former captors to expedite disclosure of the records he sought and protect his captors’ privacy. He shared his frustration when the records he received consisted almost entirely of newspaper articles and photos.

Although the content of the records ultimately disclosed to him was disappointing, Anderson’s protracted struggle illustrates, as the federal courts have observed, that “the value of information is partly a function of time.”

In the federal case recognizing this well-entrenched principle of records-access law, the U.S. Department of Justice postponed access to records requested under FOIA for up to 15 years.

The federal court decided that the delay was excessive, noting “Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters.”

The court acknowledged that the Freedom of Information Act “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.”

In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden – real or imagined – and suggested that the agency present its concerns to Congress.

Kentucky’s public officials regularly complain about the three-day statutory deadline for responding to a request under the Open Records Act.

Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

The Kentucky Attorney General’s office in a recently issued decision admonished Louisville Metro Government for failing to explain the reasons for a 45-day delay in producing records responsive to a series of broadly worded requests relating to a complaint of sexual harassment, hostile work environment and retaliation filed by a Louisville Zoo employee.

The attorney general found that the facts on appeal supported the delay in producing the records beyond the three-day statutory deadline based on proof that just one of the multiple requests involved more than 23,000 records.

Delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level but are no less offensive to the principle that “the value of information is partly a function of time.”

Perhaps the solution to this and other problems lies in the statutory revision of the 40-year-old law.

Any such revision must be faithful to the law’s strongly worded statement of legislative policy favoring the public’s right to know but recognize the dramatic changes in the public-records landscape since the law’s enactment in 1976.

The newly created Bluegrass Institute Center for Open Government proposes revising the commonwealth’s open records and meetings laws in a new report, “Shining the Light on Kentucky Sunshine Laws.” We identify deficiencies in the laws exposed by successive legal challenges, suggest where revision is needed and make recommendations for change.

Our goal is to preserve what is best in the open meetings and records laws but encourage lawmakers to close loopholes in the laws that are frequently exploited by state and local agencies at the expense of the public’s right to know. Doing so will ease the burden on public agencies, reduce the likelihood of legal challenges, preserve administrative and judicial resources and, above all, promote the clearly stated policy of open, transparent and accountable government.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government at www.bipps.org. She wrote nearly 2,000 legal opinions regarding open records and meetings laws during a 25-year career as a Kentucky assistant attorney general. She can be reached at abensenhaver@freedomkentucky.com.

Is there a backlash growing over Kentucky’s proposed school accountability system?

Unbridled Learning, Kentucky’s current public-school assessment and accountability system, is on the way out, and Education Commissioner Stephen Pruitt and the Kentucky Department of Education have been working on an as-yet unnamed replacement accountability system for some time. Pruitt and his team have held two sets of public hearings seeking Kentuckians’ input into the new program and he formed several advisory committees to further develop ideas for the new system.

Now, a proposed system is starting to take form. The Kentucky Board of Education took its first formal look at the proposal in June, and a follow-up discussion is expected during the board’s August meeting.

Surprisingly, amid this movement toward finalizing Kentucky’s new accountability program – which, by law, must be submitted to Washington, DC for approval by mid-September – a curious letter appeared last week, co-signed by leaders of several organizations including the Kentucky Chamber of Commerce and the Prichard Committee for Academic Excellence, who were members of one of Pruitt’s key advisory committees.

It almost seems like the letter is, to use technical lingo, a minority dissenting report.

[Read more…]

Jefferson County Public Schools denies Bluegrass Institute’s records request

COG2

Edit: Here is the actual letter sent by BIPPS to the JCPS– JCPS open records request 

It did not come as a complete surprise to the Bluegrass Institute when the Jefferson County Public Schools denied our request for written communications exchanged by officials, staff, board of education members and Superintendent Donna Hargens relating to the superintendent’s performance during the most recent evaluation cycle and her ultimate resignation, including written communications exchanged on privately owned electronic devices or stored in personal accounts.

We were aware of the obstacles we faced in attempting to access communications exchanged on private devices. The attorney general has undermined the public’s ability to access these records by twice declaring that they are not public records as defined in the open records law because they were not possessed and/or used by the agencies whose employees or members created them.

Never mind  that his own staff has, for years, recognized that “in the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”

And never mind that the statute defines “public record” as “documentation regardless of physical form or characteristics, which is prepared, owned, used, in the possession or retained by a public agency.”

Proponents of access, including the Bluegrass Institute, will continue to wage a battle to prove that the attorney general’s position is legally unsupportable. But the battle to disprove JCPS’s position for denying the remainder of our request, which is summarized above for purposes of brevity, was fought and won several years ago.

JCPS argued that because our request was not sufficiently specific, it required a search of all 25,000 email accounts across the district, implicated “in excess of”  1,000,000 records and was unreasonably burdensome.

The Kentucky Supreme Court rejected similar arguments in a 2008 opinion. Noting that an open records requester “could not blindly, yet with particularity,” request “documents . . .that he had never seen,” the Court held that if “a reasonable person could ascertain the nature and scope” of an open records request the request was adequate.

More importantly, the Court recognized that “the obvious fact that complying with an open records request will consume both time and manpower” did not satisfy the “high proof threshold” for establishing an unreasonable burden. An agency cannot  “rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request.”

Although there are factual differences between our case and the 2008 case,  the Supreme Court’s holding applies to both.

Unlike the agency in the referenced case, JCPS did not close the door to our request altogether. Instead JCPA asked that we specify dates and search terms that are likely to yield the records we seek. However, we question whether it is our duty to assist JCPS in conducting its obligatory search for the records we requested. The parameters of our request were clearly stated.

We also question whether JCPS’s records management practices compound the difficulties associated with locating, retrieving and reviewing records in order to respond to all open records requests, not just ours. What would otherwise be a manageable number of records – as older records meet their required retention and are lawfully destroyed — becomes unmanageable as records unnecessarily accumulate through the years. Its considerably easier to locate, retrieve and review 100 records than 1000 records, and, in this case, an estimated 1,000,000 records.

The burden on JCPS is likely not of our making but of its own.

In the final analysis, we question JCPS’s candor in suggesting that our request necessitates a review of 25,000 email accounts and “30 days of machine time.” JCPS is only required to “make a good faith effort to conduct a search using methods which could reasonably be expected to produce the records requested.” It is not required “to embark on an unproductive fishing expedition ‘when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.’”

Perhaps JCPS’s  time would be better spent in commencing its search for records responsive to our request rather than trotting out these hackneyed defenses.

 

Is this good??? ‘Hanover College is latest to not require SAT, ACT’

The Courier-Journal echoes a report from its sister paper, the Indianapolis Star, that another college in this country will no longer require applicants to take either the ACT or SAT college entrance tests. According to the article:

“Hanover College in Southern Indiana will join nearly 1,000 public and private accredited institutions across the nation that have opted for a ‘test optional’ or ‘test flexible’ admissions policy.”

While this will probably reduce student anxiety in a teen population that increasingly seems stressed (think suicides, for example), are there possible shortcomings in colleges dropping such testing from their admissions policies?

We at BIPPS think there are some problems, and we have information to back up our concerns.

[Read more…]

Commissioner Pruitt: What happens now that Unbridled Learning is ending?

During yesterday’s meeting of the Kentucky Legislature’s Interim Joint Committee on Education, Kentucky Commissioner of Education Stephen Pruitt made it very clear that Unbridled Learning, Kentucky’s Common Core era assessment and accountability program, has been ended by Senate Bill 1 from the 2017 Regular Legislative Session.

So, what comes next? The new assessment and accountability program won’t be online until the 2018-19 school term.

Pruitt indicated that for the coming school term, school test scores will still be reported, but schools won’t get accountability “labels” like Distinguished or Proficient. There won’t be any additions to the Priority Schools roster, either.

Hear exactly what the commissioner said in this recording.

Of particular note, the demise of Unbridled Learning marks the third time since the Kentucky Education Reform Act of 1990 was passed that attempts to create a vibrant and credible school assessment and accountability program has foundered in Kentucky.

The big question: Will the attempt under way now to come up with a fourth program work much better?

Don’t forget, while Kentucky’s educators have continually been unable to create a lasting system, thousands of our students have continued to be left behind. We don’t need more experiments – we need a real, working program.

Kentucky’s education commissioner starting to sound like us about high school graduation statistics

The Bluegrass Institute has been raising strong, evidence-based concerns about the quality of Kentucky’s standard high school diploma for well over half a decade.

Our concerns about possible inflation in Kentucky’s high school graduation rates stretch back at least to 2010 when we compared the state’s claimed graduation rates to much lower rates being reported by Education Week.

By August 2012 we were discussing how the state was passing out regular but “Hollow Diplomas” to students with learning disabilities who could not read.

By January 2015 our concerns intensified. By this time we were using much more compelling data, comparing Kentucky’s official high school graduation rates to other official state data that showed only a moderate proportion of those graduates were able to meet even one of the state’s various ways to determine readiness for either college or for a career. Also in 2015 we also began to use another method to show that students were getting diplomas although their academic preparation didn’t seem to meet official requirements. This time, we compared the proficiency rates on the state’s Algebra II End-of-Course Exams to the graduation rates. Kentucky Regulation 704 KAR 3:305 stipulates that competency in Algebra II is a high school graduation requirement, so you would expect reasonable agreement between graduation rates and the Algebra II EOC Exam proficiency rates. But, we didn’t find that.

We also updated our examination of graduation rates versus the state’s official college and/or career ready rates in 2015, finding just as much cause for concern as we had in earlier studies. We found disparities in the amount of social promotion to diplomas based on racial differences, as well. For example, this topic was covered on pages 13 to 18 in our report, “Blacks Continue Falling Through Gaps in Louisville’s Schools, The 2016 Update.”

What’s new today is that Kentucky Commissioner of Education Stephen Pruitt is starting to raise similar concerns about what really stands behind the current award of high school diplomas in the Bluegrass State. Speaking to the Kentucky Legislature’s Interim Joint Committee on Education today, Pruitt said:

“There are a lot of things about our graduation requirements that are good, but one could very easily question do we actually know if every kid is actually meeting all those requirements, and are they the right requirements?”

Pruitt promised action to come concerning the issue of diploma quality, and we are glad he is getting on board with this program.

Hear some of the commissioner’s comments in this short recording.

Anti-right-to-work zealots need a new act

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicates statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

Like comedian Kathy Griffin, who despicably held up a simulation of President Donald Trump’s head, leaders of the anti-right-to-work movement desperately need new material.

In fact, they need a brand-new act.

Following are some direct questions that should cause them to see the futility of a lawsuit they have filed opposing Kentucky’s new and effective right-to-work law:    

  • You claim the legal action is all about helping workers harmed by right-to-work. Can you name one single worker injured by this law?

If so, why isn’t their name on the lawsuit, instead of AFL-CIO chief Bill Londrigan and Teamsters 89 boss Fred Zuckerman?

How do these union heads even have standing, considering their claim is built on the premise that Kentucky’s right-to-work law harms workers?

Could they not get even one union dues-paying employee to step up and sign on the proverbial dotted line to take on this state’s governor and Labor Cabinet Secretary Derrick Ramsey instead of the general “affiliated unions and their members?”

Could it be that Gov. Matt Bevin was spot-on when he suggested, in his response to the lawsuit’s filing, that union bosses use these types of doomed-to-fail legal actions to “get re-elected to a job where you’re paid well?”

  • Why would you file a lawsuit to try and stop the growth in economic momentum that right-to-work is bringing to Kentucky?

Try as they may, it’s impossible for the plaintiffs and their political pals to deny this clear claim from Braidy Industries CEO Craig Bouchard, who, at the ribbon-cutting celebrating arguably the largest industry announcement in Appalachia’s history, stated: “If Kentucky was not a right-to-work state, you wouldn’t have gotten on the list because it’s so important to us.”

Attempting to unravel a policy that will help create 550 jobs paying blue-collar workers $70,000 annually confirms this lawsuit isn’t about protecting workers.

Rather, it’s about forcing the 99 percent to indulge the 1 percent at the top, where union bosses who engineer this type of senseless opposition perch and, with knee-jerking consistency, condemn labor-freedom policies like right-to-work, which simply allow individuals to forego union membership or payment of dues without losing their jobs.

  • Since federal labor law allows states to pass right-to-work policies, why are you wasting your remaining members’ dues on a frivolous lawsuit doomed to fail?

Rep. Jason Nemes, R-Louisville, charges the lawsuit is “an embarrassment” and makes claims that are “outlandish and similar to those rejected all over the country,” including by the Indiana Supreme Court after the Hoosier State passed its right-to-work law in 2012.

Perhaps these anti-right-to-work zealots believe they will get a favorable ruling just because they filed their inane litigation in a county overwhelmingly Democratic in registration and politics.

In pushing for the Kentucky Supreme Court to hear the case posthaste, they also have deluded themselves into believing a law passed by the duly-elected legislature will be overturned simply because most of the justices are registered Democrats with some ideological ax to grind.

But this isn’t a partisan issue, as indicated by many votes from both Democrat and Republican magistrates who supported local right-to-work ordinances in several counties before the statewide law passed in January.

To rule for the unions and upend Kentucky’s right-to-work law, the Supreme Court would have to totally invalidate the Constitution’s Supremacy Clause mandating that federal law preempts state policy.

It would “require a judge to dishonor their robe, and they’re not going to do that,” said Nemes, who previously served as chief of staff and counsel for retired Chief Justice Joseph Lambert.

Bevin has filed a motion to dismiss the legal challenge.

However, even if the courts don’t grant his request, this lawsuit will result in another devastating legal loss for labor-union bosses and a correspondingly large victory for job seekers, economic progress and individual liberty.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Beacon: Will there be a great pension freeze?

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

The famous Great Freeze occurred when some of the worst cold winter weather in America’s history befell the South at the end of the 19th century, destroying much of Florida’s citrus crop and the economic survival of entire communities along with it.

An interesting phenomenon occurred, however, during that winter, which stretched from late 1894 and into 1895 that may offer a hidden warning about the need to impose a freeze on benefit-accrual rates in Kentucky’s pension systems.

Florida’s Great Freeze actually was two freezes.

The first freeze in December 1894 failed to kill many mature trees and deceptively created conditions for new growth of produce during the warm months that followed, resulting in greater devastation when a harder freeze attacked months later in February 1895.

The effects were so devastating that fruit froze on trees, reducing Florida’s entire citrus production from 6 million boxes to 100,000 boxes annually.

It took five years for production to again break even the 1 million box mark.

Could it be that the $1.1 billion in additional pension funding in the current state budget – intended to stabilize Kentucky’s public-retirement plans pending an independent audit – could simply have provided a temporary warming period before the nation’s worst pension crisis deepens?

When independent consultants recently released a second report on the audit of the commonwealth’s pension plans, they claimed an additional $700 million annually – on top of the $2 billion being spent on the retirement systems this year – is needed to keep them from going belly-up.

Will such additional gobs of spending follow the frequent pattern of taxing, spending and pension-benefit increases which never come to pass but always come to stay?

For too long, Kentucky’s public-pension beneficiaries have been led to believe a higher benefit for any year of service must be applied to every year of service.

However, a defined benefit system – as Kentucky has and its government workers and retirees fight to keep – only works when there’s a direct relationship between benefits, funding and investment returns.

The current practice of keeping each of those isolated in silos has created an economic disaster in Kentucky.

Beneficiaries and their political soulmates in Frankfort must understand: healthy defined-benefit systems result in the size of accrued benefits fluctuating each year because benefits are directly connected to a host of other factors, including investment returns and payroll contributions.

It’s not realistic in such a system for benefits to always increase but never decrease, and for those increases to be applied retroactively and prospectively.

Yet this has been the scenario in Frankfort.

Benefits have been handed out arbitrarily by legislators while retirement systems’ boards are relegated to dealing with investments.

In the late 20th and early 21st century, sky-high returns on investments masked the problem. Flush with cash, politicians maintained this scheme with few consequences.

But then the economic weather turned bad, leaving taxpayers out in the cold.

The fact is, if Kentucky had abided by the rules of a defined-benefit system by funding pensions based on normal payroll costs and conservative investment assumptions, the resulting greater-than-assumed rates of return on investment funds during those fat years would have created surpluses for use in leaner times.

The only way Kentucky will survive this fiscal storm is by freezing benefit-accrual rates for all members of every system, and resetting the pension plans so that beginning January 1, benefits are awarded based on their relationship with investment returns and payroll contributions rather than the warm, but deceptive, weather of political palatability.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Not a big surprise: University of Louisville Foundation also engaged in open meetings violations

COG2The Courier Journal headline, “Experts: U of L officials improperly invested own money in foundation-backed companies,” gave no indication that the article’s introductory sentence would identify violations of the Kentucky open meetings law.

But reporter Andrew Wolfson prefaced his article with the statement, “They met in President James Ramsey’s conference room, with no notice to the public.”

“They were called the ‘Entrepreneurial Group,’” he explained, describing the group as “a select panel of University of Louisville Foundation board members, officers and outside consultants who recommended investments in new ventures to the foundation and to Ramsey.”

As an advisory committee of a public agency, the “Entrepreneurial Group” was also — these facts strongly suggest — a public agency for open meetings purposes.

Its most offensive acts did not consist of apparent open meetings violations including but not limited to the failure to give notice of, and admit the public to, its meetings. But the culture of secrecy within which the group operated contributed to the abuses with which the foundation is charged, enabling them to go unchecked far too long.

This is not the first time that allegations of open meetings violations have been leveled against the foundation. Here the allegations involve a committee established by the foundation.

And this is the critical point.

By its express terms the open meetings law applies to “any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency. . .established, created, and controlled by a public agency.”

Absent this statute, a public agency could avoid the requirements of the open meetings law, and accountability to the public, by establishing committees of less than a quorum of its total membership to conduct its business behind closed doors and convening publicly for the limited purpose of taking action. No discussion. No debate.

So much for the legislative recognition that “the formation of public policy is public business and shall not be conducted in secret.”

But the open meetings law does not permit this outcome. Committees of public agencies, even committees established for the exclusive purpose of advising, are themselves public agencies. A quorum of the committee is based on the total number of committee members and not on the total number of  members of the public agency that created it.

It is surprising how few public agencies acknowledge this fact.

Committees must adopt a schedule of regular meetings and treat all other meetings, including rescheduled regular meetings,  as special meetings, observe the requirements for conducting closed sessions, record minutes of their meetings, provide meeting room conditions that allow effective public observation, and in all respects “maximize notice of [their] meetings and actions.”

Given the gravity of the consequences that flow from noncompliance with the open meeting law, including the voiding of action taken at an illegal meeting, public agencies must understand and implement the duty to treat any of their committees as discrete public agencies and ensure that they  adhere to the letter of the law in conducting meetings. Failure to do so, the courts have noted, “would thwart the intent of the law.”