Following Up on Some Issues

(A few developments on three posts from earlier this year: Baker’s welfare policy, Mass Fiscal’s disclosure policy, the SJC’s ruling on mandatory minimum sentences.)

Back in June, Governor Baker sought unsuccessfully to reduce state welfare payments to families in which a disabled family member was receiving federal disability payments. Under Baker’s plan, as the Herald reported, the state would no longer pay $400 per month to a grandmother who’s caring full time for her 13-year-old granddaughter who cannot walk or talk because of the cerebral palsy that she has had since birth. The cutoff of state funds Baker proposed would have left the family of two to survive on the $750 per month in federal disability payments the granddaughter receives.  The Legislature told the Governor no.

In August, the Supreme Court of New Hampshire struck down a welfare eligibility restriction in that state very similar to the rule Governor Baker wanted Massachusetts to adopt. The federal disability payments, the court ruled, were intended as specific assistance to persons with disabilities and were not intended to be available for the family’s general living expenses. One hopes that if the Legislature’s rejection of Baker’s proposal does not deter him from introducing it again, the New Hampshire Supreme Court decision will.

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In August, after the Legislature passed a law requiring organizations that use direct mail for their electioneering to disclose the names of their five largest donors, just as organizations that use paid television, internet and print advertising must do, the Massachusetts Fiscal Alliance, purveyor of preposterous allegations about the voting records of its opponents, was left with a choice — either divulge the names of its five biggest donors, or curtail its electioneering.  They recently announced that they would keep their donors’ names secret, which means that their direct mail efforts this election season will not be indulging in their usual farcical claims but will merely encourage recipients to visit their website.  In an effort to portray this decision as a victory, Mass. Fiscal commented that it never wanted to become dull:  “We are always looking at ways to improve our effectiveness in communicating with the voters.”

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In April, the Supreme Judicial Court heard arguments in a District Attorney’s appeal of a case in which the trial judge declined to impose the statutory minimum mandatory prison sentence for drug distribution on a disabled black man who had been convicted of possessing an amount of drugs weighing less than a five-gram packet of sugar.

Earlier this month, the court issued an opinion reversing the trial judge and ordering that the minimum mandatory sentence (3 1/2 years instead of the 2 1/2 years the trial judge ordered)  be imposed. But in that decision, the Court also sent a message to the Legislature that arguments about the unconstitutionality of mandatory minimums, such as the strong evidence of their racially discriminatory application during the twenty years that they have been on the books, might be appropriate for the court to consider in future cases.

When It Comes to Nursing Home Safety, Governor Fix-It Has Been Down in the Basement

A series of articles by Kay Lazar in the Globe has brought us the unsavory story of Synergy Health Centers, a New Jersey company that arrived in Massachusetts three years ago and now operates 11 nursing homes here. The Globe details the dangerously substandard care  that Synergy is providing to the residents of these nursing homes (medication errors, insufficient training, short staffing, a scabies outbreak, the death of a patient who was dropped while being transferred by mechanical lift to a wheelchair). Meanwhile, Synergy’s officers are making seven-figure salaries.

The Synergy stories also reveal the laxity of our nursing home licensing process. The health department’s investigation of Synergy failed to uncover, to take just one example, the arrest of one of Synergy’s owners for 1400 code violations and unpaid fines in a New Jersey apartment complex he once owned.

Nursing home safety in general and Synergy’s track record in particular came to the Legislature’s attention a while back, and it responded by directing the health department to establish regulations to ensure that a hearing with opportunity for public comment be conducted before any nursing home could be closed or sold.

And thereby hangs a tale of wrangling between the Legislature and the Baker administration, BFF’s on most issues, over the latter’s reluctance to exercise its regulatory power.

To be fair to Governor Baker, the Legislature’s directive to the health department to provide for public hearings happened in mid-2014, and the Patrick administration failed to act on it during its last six months.  But after Governor Baker took office in 2015, the foot-dragging continued. One of the Governor’s first initiatives was a “regulatory pause” — a  prohibition on any new agency regulations in order to start relieving the Commonwealth’s “job creators” (his term) from excessively burdensome oversight. The regulatory pause soon lengthened into a regulatory moratorium by way of an Executive Order requiring agencies to take a year to review every regulation and to discard those that “unduly and adversely affect Massachusetts citizens and customers of the Commonwealth.” Government regulations, the Governor often says (during his most Pioneer-and Cato-Institute moments), are like the junk that accumulates in your basement and which, in the interests of good housekeeping, you need to clean out every so often.

By May 2015, five months into Baker’s term, there were still no nursing home licensing regulations and no timetable for their arrival. To be sure, the press of other business — like the opioid crisis — was keeping the health department busy. And the ranks of health department staff were about to be thinned through the early retirement incentive program that the Governor and Legislature had agreed on as a cost-savings move. Yet even taking those problems into account, it was difficult to avoid the conclusion that protecting Synergy Health Centers from meddlesome governmental regulators was more important to the Baker administration than protecting elderly and disabled nursing home residents from Synergy Health Centers. Governor Fix-It may have been attending to a lot of problems, but on the issue of nursing home safety, it might be said, he was downstairs cleaning out the basement.

Therefore, frustrated by the lack of progress on nursing home licensing and concerned that the Governor’s blinkered view of regulations extended beyond just the issue of nursing home licensing, the Legislature decided to require agencies to maintain a log of the statutes passed in the previous 24 months for which regulations were required and for which regulations had not yet been adopted. Also, agencies were directed to make this information available on their websites.

The Governor’s response to this mandate?  Veto — on the ground that the requirement would unnecessarily burden state agencies. Yet at the same time, as the Globe noted, the Governor’s health department was unable to find any reason to deny Synergy another nursing home license, its 11th, even after many more reports of reports had become public that a Synergy-owned nursing home mistakenly put ear drops into a patient’s eye and then did not call a doctor until the patient had suffered for five hours.

And the Legislature’s response to the Governor’s veto?  Override — along strict party lines.

So where are we now?

There are no signs yet that agencies are complying with the requirement to post the regulations they’ve been directed to adopt, even though that’s been the law for several months now.

In January the health department finally produced the long-sought nursing home licensing regulations, 18 months after the Legislature requested them. The department also acknowledges having received more than 11,000 complaints related to nursing homes during the past year alone. It’s planning to launch a program of surprise inspections to curb abuses at problem facilities. The Governor has proposed hiring two more nursing home inspectors for this effort.  (There are 414 nursing homes in Massachusetts.)

The regulatory review and basement-purging that the Governor ordered a year ago is due at the end of March. For the sake of nursing home residents, one hopes that agency staff will then be free to attend to other matters and that the moratorium on new regulations will be lifted when it’s appropriate to do so.

 

Who’s Going to Get Fulfilled at Amazon’s New Fulfillment Center?

Amazon is coming to Fall River. The on-line giant announced yesterday that it will occupy a million-square-foot building that’s going to be built on the Fall River-Freetown line. The new warehouse, which in Amazon-speak carries the name “Fulfillment Center,” will join 50 or so similar facilities around the country.

So who among us can look forward to being fulfilled by the Fulfillment Center?

For starters, Amazon customers in Massachusetts, who can look forward to next-day delivery of their $600 premium foosball table with enamel screen-printed graphics or their Natura Bisse Oxygen Cream (immediately softens the most dehydrated skin, $88 for a 2.5 ounce jar).

Second, Amazon itself, which in addition to its profits gets more than $6 million in state and local tax breaks for choosing the Fall River site.

Third, Governor Charlie Baker, who’s pretty excited about it all (as is the predominantly Democratic Fall River area legislative delegation).

Anybody out there who’s not going to be so fulfilled?

Well, construction companies in Massachusetts, which lost out on the building contract.  That went instead to a company from East Rutherford, N.J.

And the people who will be working in the new Fulfillment Center? Amazon is promising 500 full-time jobs at an average salary of $35,000. Which might well sound good to people in Fall River right now, where the unemployment rate remains stubbornly high. But that average salary will still leave a Fall River family of four about $25,000 short of what they need to live on (and 500 jobs is only half the number of jobs Amazon was promising Fall River a year ago).

Then there’s the issue of the working conditions at Amazon’s Fulfillment Centers. The Allentown, Pennsylvania, Morning Call newspaper has been covering the working conditions at Amazon’s nearby Lehigh Valley Fulfillment Center for the past five years. Anybody contemplating an Amazon job in Fall River and anybody who is unequivocally keen on Amazon’s arrival in the state might want to take a look at the Morning Call‘s stories about life in an Amazon warehouse: punishing productivity quotas that result in the firing of workers unable to meet them and injuries to many who try (keep in mind that workers must cover a warehouse that’s the size of 21 football fields); a management structure in which the real employer is not Amazon itself, but a temporary help agency called “Integrity Staffing Solutions,” which can take advantage of laws that limit its liability for unemployment insurance and can help reduce the risk of encroachment by labor unions through constant employee turnover; triple-digit temperatures in the warehouse during the summer (on this point, Amazon was at pains to say that it had arranged for paramedics to be in ambulances parked outside the warehouse to treat the severely dehydrated).

If you take another look at Governor Baker’s enthusiastic comments about Amazon’s arrival, you’ll notice that he’s very excited to help Amazon meet all its needs — and that the Massachusetts residents who will be working there are a mere afterthought:

“Our collaboration and partnership with Amazon is a good example of where the state has worked with, and will continue to work with, companies and help them meet their needs for everything from tax incentives to training new employees to permitting so that they can continue to grow in the Commonwealth.”

Points for honesty.

“A State Government That Gets Out Of The Way”

In his campaign for Governor last year, Charlie Baker promised us “a state government that gets out of the way.” And it seems that’s what we are getting.

Right after taking office, Governor Baker announced that one of the ways that state government would be getting out of the way was by not issuing any new regulations for some time. A “regulatory pause” by Executive branch agencies would “enable the administration to implement new guidance that regulations going forward communicate a clear, desired and effective goal.”

This pause was not a surprise. You might say that the notion that regulations are somehow adverse to good government started with Charlie Baker, the Secretary of Administration and Finance as well as the “heart and soul” of the Weld administration. Governor Weld issued the first executive order requiring agencies to pare down their regulations in 1996 (“WHEREAS, the inefficiencies and intrusions resulting from excessive government regulation constitute an unreasonable financial and personal burden on residents of the Commonwealth”). Since then, it has become fashionable in Massachusetts for our governors to begin their terms in office with a similar reproof of the idea that government ought to be in the business of regulating business, as Mitt Romney did in 2003 and Deval Patrick did in 2007.

The right-wing American Legislative Exchange Council offers model legislation for states to trim their inventory of regulations. And our state Legislature got in on the act in 2010, prohibiting agencies from putting out new regulations until they had thoroughly analyzed the potential effect on small business and requiring all agencies to review the need for all of their regulations every 12 years.

Which brings us to Sunday’s Globe article on Baker’s further pursuit of regulatory cutbacks in a new Executive Order. The moratorium on new regulations he announced in January is to continue until further notice. And there’s lots more. Baker has often likened government regulations to the junk that accumulates in your basement and which, in the interests of good housekeeping, you need to clean out every so often (as the Legislature had already concluded in mandating a top-to-bottom review every twelve years). The Executive branch agencies are going to be very busy making sure that every state regulation passes a lengthy series of tests before it may continue to be in effect. The most controversial of these tests is that no regulation may exceed what the federal government requires:

Baker, in a March 31 directive to all state agencies, is requiring a yearlong review of nearly all state regulations, with a mandate that none should exceed federal requirements, which in many cases are far less stringent than the state’s. He wants only regulations that do not “unduly and adversely affect Massachusetts citizens and customers of the Commonwealth.”

This apparently means that if the federal government is not ready to say that the chemical perchlorate, a persistent, inorganic anion found in industrial pollutants that interferes with thyroid function if ingested in significant quantity, is unsafe, then Massachusetts will stop saying it is unsafe and will rescind the current regulation (in place since the Romney administration) capping the amount of perchlorate that safe drinking water may contain. The people of Massachusetts, especially those living in the towns where perchlorate has been found in the drinking water will be on their own, happily unburdened by excessive regulation.

Government regulations are presumptively the enemy, except of course when something goes badly wrong. Then everybody wants to know why government did not prevent the catastrophe from happening — why was nobody minding the store?

Let’s take the example of the New England Compounding Center, the pharmaceutical operation that sold contaminated steroid drugs causing meningitis which led to the deaths of 64 people across the country, caused 750 others to fall ill, and which resulted in second-degree murder charges against an owner and one of the pharmacists.

The Legislature responded to that disaster by recognizing that oversight of the compounding pharmacy industry was inadequate and by passing a law directing the Board of Pharmacy to regulate these pharmacies more strictly. The Board was told, for example, to determine which drug preparations require special training or equipment to prepare in a safe manner, to report adverse drug events in a database available to the public, and to set new penalties for pharmacies that do not comply with the new law.

The legislation passed unanimously, without discussion of whether it might be excessively burdensome or detrimental to the state’s competitiveness. The House Minority leader told the State House News Service that “everybody recognizes the terrible situation that happened and see this bill as progress on that front. I think the bill is an important step forward to bring some accountability and clarity to compounding pharmacies.” In that conversation he apparently did not mention “An Act Reforming the Regulatory Process to Promote Job Growth,” the bill that he files each session that would allow a legislative committee to bottle up any proposed regulation for up to two years in the interests of making Massachusetts a more competitive place to do business. (You may have been unaware that the Legislature has expertise in such matters as acceptable perchloride concentrations in groundwater and the meningitis-free preparation of steroid drugs.)

And so, speaking of the increased regulation and oversight of the compounding pharmacy industry, what’s up with that?

The Herald reported last week that “the state agency that oversees compounding pharmacies is still in disarray two years after a deadly meningitis outbreak, failing to inspect facilities, allowing dirty labs to stay open and rarely publicizing recalls of possibly tainted meds.” Any disarray may have to do with the fact that Board of Registration in Pharmacy has not yet issued any of the regulations that the Legislature ordered. The minutes of the Board meetings show that the regulations received some discussion last year during Governor Patrick’s administration, but progress was slow, in part because of the Legislature’s requirement that no new regulation can take effect until the agency has prepared a “small business impact statement,” which includes, among other things, an estimate of the number of small businesses subject to the proposed regulation, and an analysis of whether the proposed regulation is likely to deter or encourage the formation of new businesses in the commonwealth.

And now with Governor Baker’s new Executive Order in effect, we won’t be seeing those pharmacy regulations anytime soon. We have other, higher priorities, like getting state government out of the way. And that’s going to be keeping our state agencies very busy — cleaning out their basements.