Michelle Moore, executive director of the St. Louis Tea Party, introduced James Harris to a crowd of about 70 people at last night's After Party in Clayton. Harris discuses the problems with the way that Missouri selects judges and how the state would be better served by something other than "the Missouri Plan". Harris's group, Better Courts for Missouri, is working with the Missouri legislature to get a constitutional reform amendment on the ballot.
I don't know the answer to this question, so I'm genuinely asking: would it be constitutional to effectively declare that the nation's health insurers are branch offices of the Internal Revenue Service?
If the health insurance mandate is a tax, then health insurers that collect revenue under that mandate are effectively tax collectors. Does the healthcare bill turn health insurers into quasi-tax collectors and is that Constitutional?
The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.
The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.
At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.
Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson’s error leads him to assume away as a matter of “logic” what is the major question in the case. That is unfortunate, I think.
One of the most influential books I've ever read is David Brin's The Transparent Society. It was written in the late 1990's and foresaw situations like the one captured in the video above of Benton County deputy Dana Winn and homeowner John Lewis. As a result of that video, deputy Winn is under investigation. Lewis recorded his own unlawful arrest with a hidden camera:
Lewis, who doesn't trust cops, has various cameras hidden around his home, including a small camera inside his sunglasses.
Lewis told Winn the man he was looking for didn't live there anymore. Lewis kept his answers short and abrupt, which infuriated Winn.
Winn asked to search the home but was denied because he didn't have a search warrant. Lewis was arrested a short time later for obstructing government operations.
In effect, deputy Winn arrested Lewis for failure to waiving his Fourth Amendment rights when asked to do so.
This past Friday, Judge Rod Chapel issued his opinion in the case of Peace of Mind Adult Day Care Center vs. Department of Social Services (DSS), MO HealthNet Division, and Department of Health and Senior Services (DHSS). His ruling excoriates those three bureaucracies for institutional racism. His full opinion is below.
Stephanie Patton, an African-American woman, opened Peace of Mind Adult Day Care in 1993. It was the first adult day care in the Show Me State to specifically cater to African-Americans. Most of Stephanie's clients are poor, so much of her funding came from Medicaid. She was driven out of business in 2009 by the combined forces of DSS, HealthNet, and DHSS. This entrepreneur employed ten people and the DHSS shut her down in the middle of a recession.
I spoke with Stephanie Saturday evening about the past two years.
In October of 2008, DHSS inspectors Cassie Blum and Sharon Buckner conducted a surprise inspection of Peace of Mind. During the inspection Blum asked Stephanie not to accompany them. The procedure during inspections is for someone from the day care facility to accompany the inspector(s). Blum asked Stephanie to not accompany them, but Stephanie insisted. The disagreement devolved from there. Blum called Stephanie the n-word, struck Stephanie, and ultimately called the police on her. When Stephanie asked one of the responding officers why Blum had been so out of line, he told her that he didn't know and added that it "seemed like [Blum] was out to get you."
Judge Chapel agreed. Here's what he wrote [emphasis added]:
Patton testified that Blum called her a "nigger" and said she was illiterate during the October 16, 2008 inspection. We consider this as a claim that DHSS's actions were the result of a racially discriminatory animus and that DHSS's actions deprived Patton of due process and equal protection of the laws, in violation of U.S. Const. amend. 5, 14 and 15, and Mo. Const. art. I, §§ 2 and 10.
The rest of Chapel's ruling reads like a 2x4 to the head, but we first have to return to Stephanie to understand the ramifications that her run-in with Blum would have.
Peace of Mind was operating on Olive in University City. Stephanie had moved her family out to Chesterfield a few years earlier. Her run-in with DHSS was about to get worse. In December of 2008, inspectors Niekamp and Shelly Williamson arrived for another surprise inspection. In their report, the inspectors noted that Peace of Mind did not have a nurse on duty; however, two nurses were present and on duty during the inspection. Apparently, the inspectors never asked if there were any nurses on duty.
License issues quickly ensued for Stephanie and Peace of Mind Day Care as a result of the false report. The net result of those licensing issues was that Peace of Mind was unable to get Medicaid funding.
By April of 2009 Peace of Mind was out of business. In June of 2009 Stephanie was trying to sell her house to raise money to pay a lawyer. She was worrying that she wouldn't have money to feed her children. One day, while showing the house to a potential buyer, two lawyers from MO Attorney General Chris Koster's office arrived at her residence. They gave her a large folder of documents and told her, in front of the potential buyer, that they were charging her with half a million dollars of Medicaid fraud ($487,462.08 to be exact).
This was devastating. Stephanie's home went into foreclosure, she had to sell her car, and she suffered severe depression. As Judge Chapel notes:
At the time of the hearing, [Stephanie] was emotionally distraught, but otherwise was able to testify.
While discussing the trial with Stephanie, I learned that the court reporter was so moved by what she heard that she too was crying during the testimony. The collapse of the business and with it Stephanie's life was precipitated by the false report that there wasn't a nurse on duty. As Judge Chapel notes [emphasis added]:
We have found that Peace of Mind had a nurse on duty at all times. There is not a basis for sanctions under Regulation 13 CSR 70-3.030(3)(A) 12.
DSS argues that Peace of Mind failed to maintain a license, as required for participation in the MO HealthNet program. DHSS granted a provisional license for a social model to Peace of Mind for a limited time. We have found that Peace of Mind had a nurse on duty; thus, there was no reason not to continue Peace of Mind's license as a medical model. We find no basis for sanctions under Regulation 13 CSR 70-3.030(3)(A)13 for failure to meet program requirements, such as licensure.
The judge also ruled that because Stephanie did not have any prior sanctions from DHSS, going after her for $487,462.08 of Medicaid fraud was not justified. He noted that DHSS never required provider education or other available remedies. With 15+ years of service, they decided to throw the book at her. From the ruling:
We also conclude that the sanction of termination of Peace of Mind's status as a MO
HealthNet provider was not warranted. There has been no allegation or showing that Peace of
Mind provided substandard services, committed any fraud, or failed to perform any service for
which she received payment.
...
We conclude that Peace of Mind is not subject to MO HealthNet sanctions.
As Peace of Mind was dealing with licensing issues in late 2008 and early 2009, they were still caring for patients. However, their Medicaid claims to the tune of $45,340 were denied. Without revenue to pay her operating costs, Stephanie had no choice but to wind down her business. The closing summary of ruling provides:
[Stephanie] is entitled to payment of$45,340 for services rendered from December 20, 2008,
through February 20, 2009.
During her ordeal, Stephanie reached out to leaders in Jefferson City, MO. She said that the Missouri Legislative Black Caucus was unresponsive. Jay Nixon did not return her calls. Margaret Donnelly Director of DHSS was unresponsive. Interestingly, Donnelly represented Stephanie before Stephanie moved to Chesterfield. Cole McNary, her current state rep, took the time to hear her story, was instrumental in setting up meetings, and sent a supportive letter to Judge Chapel.
Stephanie also reached out for support to friends and family. One of those friends is Jacque Ehrlich (the Missouri state chairmom for AsAMom.org). Jacque provided both moral and professional support including testifying on Stephanie's behalf. Stephanie was never able to raise money for a lawyer. As a paralegal, Jacque was able to provide some advice; however, Stephanie represented herself in court. She took on the system and their lawyers and with God's help she prevailed. While talking about her ordeal, the most poignant moment was when she told me: "I thank God for this affliction."
24thState.com reported that the preliminary hearing for the six people arrested at Russ Carnahan's Town Hall last August 6th, was suppose to be held yesterday—Thursday evening. That's changed. As 24thState notes, there are now four different dates for these pretrial hearings with Kenneth Gladney's assailants scheduled at the beginning of April.
The first of those hearings was held Thursday evening as originally planned. Kelly Owens was able to attend the meeting and emailed me her notes. She had some difficulty getting in. The security guard had said that there wasn't space for her in the courtroom; however, she persisted and was eventually allowed in.
She counted 81 empty chairs in the courtroom.
Here's how Kelly reported the exchange between defendant Brian Matthews and Judge Adler:
I heard the judge say you are charged with interfering with police, how do you plead? and then I heard Brain ask something about how does he get a public defendant? I couldn't hear the rest. Brain was handed a manila square card stock piece of paper and all I could make out when he walked by was the St Louis County logo on top. Brain walked out of the court room.
Kelly also reported that she did not see St Louis Post Dispatch reporter Jake Wagman. Wagman blogs at the PD's Political Fix and was also suppose to have a hearing Thursday evening. Over the past several months I've spoken with several Tea Partiers who feel that the charges against Wagman should be dropped. Let's hope they were.
Democrats tell us that we need government health care so that sick Americans can get the care they need without being denied. But under the government health care we already have Americans are denied far more often than the private sector.
What's the problem? Those denied coverage under medicare can simply bring a wrongful denial of claim tort.... Oh, right, they lack standing because Medicare has sovereign immunity. As a result, someone denied coverage by Medicare will never have their day in court (unlike those whose claim was denied by an insurance provider).
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
....Every new regulation concerning commerce or revenue, or in any manner effecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens....
....What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?...
....No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.
Tea Party Conservative who began blogging at http://RebootCongress.NET when TARP passed. Email me: contact@RebootCongress.net. Help support my work: Donate Bitcoins
. It was written in the late 1990's and foresaw situations like the one captured in the video above of Benton County deputy Dana Winn and homeowner John Lewis. As a result of that video, deputy Winn is under investigation. Lewis recorded his own unlawful arrest with a hidden camera:
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