Category Archives: regulation

What Should a Health Plan Cover?

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Anna Wilde Mathews wondered about that in her piece in The Wall Street Journal.  First, a couple of asides.  Notice the tacit acknowledgment that we have no health insurance plans available.  That industry was eliminated in toto by Obamacare, which replaced the industry with a Federally mandated, publicly/privately funded health coverage welfare program.  Next, notice the tacit assumption in the piece’s subhead: that the law should mandate business decisions.

To the piece itself:

The 2010 health law created a new set of federal requirements for plans sold to individuals and small businesses, including a list of 10 benefits, among them prescription drugs, mental-health services and laboratory tests. It also mandated that plans cover preventive services such as vaccinations at no cost to enrollees.

Along with women’s contraceptives (but not men’s…) at no cost to enrollees or the businesses providing the plans.

Trimming certain benefit categories from the required list could sharply raise the cost of those benefits for consumers who opt to have them.

That’s Mathews’ claim, anyway.  What she’s chosen to ignore is that a competitive, free market would sharply reduce the cost of most of those “benefits.”  What she’s also chosen to ignore is that eliminating the mandatory nature of the coverages would sharply lower the cost to millions of others who don’t need those “benefits,” but who must pay for them anyway—even if they’re included in a plan at “no cost to enrollees,” a fiction cynically foisted onto us by the Obama administration.  Enrollees certainly are paying for them; the added cost is simply hidden in a higher overall price.  And the rest of us are paying for them, too, in premiums similarly elevated to pay for that required coverage and/or in the taxes we must pay to pay for the subsidy.

It’s certainly true that other, rarer or more expensive to treat problems would have higher prices, but there’s never been a case made for why Government should pay for these ahead of family, friends, charity, church, local community—the usual suspects.

Plans with skinnier coverage can carry lower premiums, actuaries say. But as with everything in health care, that comes with a trade-off.

NSS.  But those trade-off decisions belong to the individual, not to Government.

Judge James Robart’s TRO

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Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East.  The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.

A Large Misunderstanding

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A Wall Street Journal article about Breitbart writer and speaker Milo Yiannopoulos and his impact on college campus views of free speech opened with a widespread misunderstanding.

The tour by Milo Yiannopoulos is sparking reaction from more groups than any recent speaker has on college campuses, heightening tensions between free speech and public safety.

There is no tension between free speech and public safety, though: there is no public safety without free speech.  The relationship between free speech and public safety is not only—not even primarily—concerned with people whose feelings get hurt, or people legitimately insulted, and who then act out emotionally and dangerously.  The relationship is centered on Government’s ability to control what will be spoken or done and the threat that those abilities represent to public safety.

It’s only necessary to look at the vociferous protests from the Left and from the Right against what each side saw in its time as Government overreach to see the relationship.

Again: there is no public safety without free speech.  Full stop.

Regulators Against Market Competition

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Their obstruction sometimes has lethal consequences, and sometimes those consequences kill the least of the least among us: babies.

A little bit ago, in Salem, VA, a 24-weeks pregnant woman was taken to the ER suffering what turned out to be a placental abruption, a condition in which the placenta has detached from the uterus.  It’s often deadly for both the mother and the baby.  This hospital was not equipped to handle this sort of emergency, but six miles away, there was a hospital, Carilion Medical Center, that was so equipped, including an ambulance with incubators that could sustain the necessarily untimely ripped baby during transport to the other hospital.

That ambulance proved unavailable; it was on a call in the opposite direction.

They saved the mother’s life.

The baby didn’t make it.

The hospital to which the pregnant mother had been taken—the closest one to her—had been denied a permit for its own “high-tech neonatal care facilities:” the government of Virginia had decided that the facilities were not necessary.  The government of Virginia had made a business regulatory decision instead of letting the hospital business make its own decision, and that decision contributed to the death of this baby.

Virginia has a Certificate of Public Need (COPN) law requiring hospitals and other medical providers to get special permission from the state government before they are allowed to offer new services, like the specialty nursery that may have saved that child’s life…. These COPN licensing processes are supposed to balance the interests of hospitals with the needs of the public, but in reality they are fraught with politics and allow special interests to effectively veto unwanted competition.

Government balancing hospital interests against public necessity, with competing hospitals for the scales.  Because neither the hospital nor the public can be trusted to be adult enough to make their own decisions without their Know Betters “guiding” them.  But competing interests are fully competent.

The only opposition came from Alice Ackerman, a professor of pediatrics at Virginia Tech’s medical school—the Carilion School of Medicine, which has longstanding ties to Carilion hospital. In written testimony submitted to the Department of Health, Ackerman argued that the number of specialty bassinets at Carilion was sufficient to meet the needs of southwest Virginia.

And then Karen Remley, then Virginia Health Commissioner, denied the hospital’s permit. Under Virginia’s Certificate of Public Need laws, she alone had the final say in the matter.

Read the Reason report at the link.

This stinks.

Personal Responsibility

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What a concept.  The proximate subject is whether Montana citizens should be allowed “road beer,” a beer or other alcoholic drink while sitting as a passenger in a car on a Montana road.  Road beer currently is prohibited.

A young Montana Republican State Congressman, Daniel Zolnikov, is backing House Bill 206, which would allow passengers in a car to drink while continuing the prohibition against drivers drinking.  Listen to the man on the larger principle.

The argument was made—how about if it tempts the driver?  That’s like saying (designated drivers) shouldn’t go to bars in case they’re tempted to have a drink. Where is the self-responsibility? This isn’t allowing for people to drink and drive, it’s allowing a passenger to have a beer.

And

[Zolnikov] told KGVO…[i]t’s time to stop “treating adults like children.”

 

Indeed.