"Burdensome" is in the eye of the beholder

Governor Terry Branstad issued two new executive orders last week. One directive rescinded 12 executive orders issued between 1998 and 2009, including two that were intended to make state government operate more efficiently. Branstad’s other order granted “stakeholder groups” new levers for blocking potentially “burdensome” administrative rules.

Highlights from the new and the disappeared executive orders are after the jump.

Branstad’s Executive Order 79 of August 20 rescinded one of his own executive orders from 1998, seven orders that Democratic Governor Tom Vilsack issued between 1999 and 2006, and four orders that Democratic Governor Chet Culver issued in 2008 and 2009. Click here (pdf) for the full text of Branstad’s order and here to access the executive orders now rescinded.

Branstad gave six separate reasons for rescinding the dozen executive orders:

1. Two of Vilsack’s orders contained directives that the Iowa legislature has since codified. One created a State Council on Homelessness, and the other dealt with state government purchasing rules.

2. Two orders established committees that no longer meet. Branstad rescinded his own Executive Order 63, creating a committee on the Automated Fingerprint Identification System in 1998. That was not nearly as significant as Culver’s Executive Order Number 6 (pdf), creating a Green Government Steering Committee, an Energy Excellence Buildings Task Force, a Sustainable Materials Task Force, and a Biofuels Task Force. Those committees collaborated on a Green Government Master Plan that was intended to save government money by reducing the use of electricity, natural gas, and water in government buildings; recycling and repurposing more state equipment; increasing fuel efficiency of the state vehicle fleet; and reducing vehicle miles driven by state employees. For all the Republican talk about shrinking government, it took a Democratic governor to get serious about spending fewer taxpayer dollars on utility bills.

3. Three of Vilsack’s orders were rescinded because they are “outdated.” One related to homecare delivery by providers of Iowa’s Medicaid Home and Community-Based Waiver programs. Two called for the Department of Human Services director to meet with representatives of “registered child development home providers” and “non-registered child care home providers” to discuss various issues related to child care.

4. Three of the rescinded orders established bodies that are “no longer needed,” in Branstad’s judgment. Vilsack created a Rebuild Iowa Infrastructure Advisory Council in 1999 and a Council of Economic Advisors in 2003. Culver created the Rebuild Iowa Office and Rebuild Iowa Committee after the disastrous flooding of June 2008. (The Rebuild Iowa Office had already been phased out.)

5. Branstad axed Culver’s Executive Order 17 (pdf) because it allegedly “does not support cost-efficient government.” I disagree with Branstad’s assessment. Culver’s order called for “cost-effective use of state revenues” by state entities managing or leasing real estate on behalf of the government. It outlined state priorities for “sound and smart growth patterns,” such as renovating an existing structure (rather than building new) when possible, locating state facilities in historic districts when practical, and siting facilities in walkable neighborhoods close to public transit, available housing, retail and commercial properties.

Sustainable development is cost-efficient, supports local economies, and shouldn’t be a partisan issue. Don’t take my word for it, Governor: your pal Mitt Romney supported a range of “smart growth” policies as governor of Massachusetts. Culver deserves credit for trying to move the ball in the right direction.

6. Branstad rescinded Culver’s Executive Order 20 (pdf) “because it is unnecessarily burdensome.” That order called for more than three dozen efficiency measures and other ways to cut state government costs. It’s not clear which of those methods bothered Branstad. Aren’t Republicans supposed to be for almost any way to save a taxpayer buck?

Incidentally, one of the points in Culver’s order called on state agencies to consider launching “employee wellness initiatives.” Branstad supports private and local government worksite wellness programs in the context of his “healthiest state initiative.” Some people might consider on-site exercise equipment or weight loss incentives an office perk, while others might find it “burdensome” to have your boss scrutinize your lifestyle choices.

Branstad’s Executive Order 80 (pdf), also signed on August 20, will give business interests new influence in administrative rule-making. The “whereas” clauses speak of increasing “public participation” in rule-making to “reform burdensome rules and prevent overregulation or red tape.”

Iowa already provides for public input during administrative rule-making, but Branstad considers “stakeholder groups” an “effective way for government to interact with those who are affected by regulations.” To that end,

1. Each agency shall create a stakeholder rulemaking group for a specific rulemaking if requested to do so by the head of the agency or the Administrative Rules Coordinator in the office of the Governor (“Administrative Rules Coordinator”).

2. Creation of Stakeholder Group: The Stakeholder rulemaking group shall be appointed by the agency, in consultation with the Administrative Rules Coordinator. […] Membership in the group is in the sole discretion of the agency. The group shall consist of stakeholders that can adequately represent the varying interests that will be significantly affected by any contemplated draft rule proposal […] The stakeholder rules group is an advisory group only and is not an agency for rulemaking purposes. […]

5. Public Input: A stakeholder rulemaking group shall receive public comment and input and deliberate on the desirability and content of any rule it may recommend to the agency for adoption.

6. Results: After the stakeholder rulemaking group has completed its work, its recommendations, if any, shall be forwarded to the agency with rulemaking authority. The agency shall consider any recommendation of the rulemaking group and if the agency decides to initiate rulemaking on the basis of such a recommendation it must do so pursuant to the Iowa Administrative Procedure Act (Iowa Code Chapter 17A).

“Stakeholder” can be understood broadly to mean “one who is involved in or affected by a course of action.” By way of example, if the Department of Natural Resources considers a new air quality rule, I would define the stakeholder group to include members of the public at risk of respiratory illnesses and those living downwind of the emitting enterprises, along with the potentially regulated business owners.

If the DNR considers a new rule regarding runoff from agricultural facilities, I would define water utilities and citizens who rely on public drinking water as stakeholders, along with the potentially regulated farm owners. It is “burdensome” for hundreds of thousands of Des Moines Water Works customers to cover the cost of the world’s largest nitrate removal system.

Judging from the preamble to Branstad’s Executive Order 80 and the governor’s many previous comments about “overregulation,” Iowans representing the public interest will not be considered stakeholders worthy of a louder voice in rulemaking. On the contrary, only businesses who see government regulation as “unnecessary burdens” will be tapped by agency heads, “in consultation with [Branstad’s] Administrative Rules Coordinator.”

I think we can all guess how the new process will play out.

The Cedar Rapids Gazette’s Todd Dorman struck a hopeful tone in his column about Executive Order 80.

[T]his could be a good thing, if agency heads appoint a truly broad spectrum of folks to these groups, if they’re not used to simply gum up the works, if the outcome is better rules and not political grandstanding and if stakeholder panels don’t become unelected tiny legislatures rewriting laws without authority. I know, many ifs.

But it’s worth a try. The bureaucracy acts in mysterious ways, and if these panels can clear some of the fog and untangle some unintended tangles before they ensnare innocent Iowans, great. More citizen participation is always welcome.

In fact, this is such a great idea that I say the governor should deploy similar stakeholder groups before he issues executive orders, signs a bill or issues vetoes. If the input of underrepresented citizens and unheard voices is important to rule-making, surely it’s critical to other big executive branch decisions.

For instance, the governor could have convened a panel including low-income, working adults without health coverage before he decided to flatly reject Medicaid expansion efforts. He might have consulted stakeholders before he vetoed an increase in the Earned Income Tax Credit. Twice. I doubt he’ll do it.

The 225,000 Iowa households that would have benefited from increasing the earned income tax credit include many of the 150,000 Iowans who would qualify for the Medicaid expansion Branstad opposes. Executive Order 80 talks about making bureaucracy “accountable to the citizens of Iowa,” but I will be surprised if the new stakeholder rulemaking groups involve anyone besides business owners and industry representatives.

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  • Medicaid expansion

    “The governors may say that they don’t want this, but it seems to me it’s going to be up to the legislatures to decide this, not just the governors,” Harkin said.

    Albrecht said later that the Legislature will need to weigh in on the matter, “but Gov. Branstad believes the most important voice will come from the people in the November elections.”

    I think Branstad is bluffing while waiting for the Nov election result. In the event of a GOP win, he anticipates the transformation of Medicaid into a block grant program, which also happens to be a very bad idea, but that’s for another day. In the event of a Dem win, I think he’ll backtrack, esp if there’s a lot of pressure.

    Confused: EO #6, rescinded?

  • employee wellness

    Some people might consider on-site exercise equipment or weight loss incentives an office perk, while others might find it “burdensome” to have your boss scrutinize your lifestyle choices.

    There is an interesting parallel — mandated “driving habits” monitoring devices — recently discussed in Salon. Some snippets:

    Richard Hutchinson, the usage-based insurance manager at Progressive, says the SnapShot works on algorithms that use your driving style to predict how likely you are to have an accident, and how expensive it will be if it happens. Normal insurance plans use dozens of set variables like age and gender to calculate rates, but the SnapShot taps into literally thousands of dynamic inputs including how fast and what time of day you drive. The device captures data in one-second intervals. One of the most revealing stats: how much you brake and how often. Over-braking is a key indicator of an accident-prone driver…

    Essentially, the insurance firms are combining data from the past with real-time data from your car to presuppose that if you brake in a certain style, commute on a certain road, or drive in other myriad ways deemed “risky” but legal, there’s a higher chance that you will get into an automobile accident. So rather than charge you a higher premium after you incur those accident costs, the companies are looking to punitively charge you beforehand à la a Department of Pre-crime.

    insurance-industry spokespeople like her insist that the system today only exists to give customers premium discounts for “good” driving (however arbitrary that definition of “good” is), but not to raise premiums for “bad” driving. However, if and when the devices become a prerequisite for insurance – which many experts say will soon happen – we would likely see a system in which the “standard” premium is inflated, and the “discounts” for “good” driving only slightly reduce premiums. That is, we would likely see a system in which the technology stealthily raises overall premiums for everyone.

    This is identical to the benign-sounding “employee wellness incentives/penalties” written into ACA. Companies that collect data inputs about you for FICA-like algorithms to assess your health risk status already existed before the formal dog-and-pony show.

    Although these incentives and disincentives do prompt workers to participate in wellness programs, the evidence is mixed on whether the result is real improvements in health outcomes. And to date, there have been no published, independent studies on how changes in premiums or cost sharing affect health outcomes.

    Unions, consumer advocates, and voluntary organizations such as the American Heart Association are generally wary of wellness initiatives that provide rewards or penalties based on meeting health status goals. They are concerned that, rather than improving health, such approaches may simply shift heath care costs from the healthy to the sick, undermining health insurance reforms that prohibit consideration of health status factors in determining insurance premium rates.

    In addition, some critics warn that wellness program requirements may be used to discourage employees from participating in their employers’ health benefits plan by making their participation unaffordable. Employers might use a system of rewards or penalties totaling thousands of dollars annually to coerce employees who cannot meet health status goals to seek coverage elsewhere, such as through a spouse’s plan; a public option, such as Medicaid; or a separate private plan purchased through the new health insurance exchanges.

    Did you eat too much crap at the state fair and then announce this in public? It’ll become part of your profile & part of the calculation to pass on to insurance companies. For years I’ve been amazed that people aren’t more active in opposing this stuff, but then again, there’s Facebook and the development of facial recognition software using your own photos.