Posts Tagged ‘Florida’

Florida’s Governor Ron DeSantis Builds His Educational Petrie Dish

Tuesday, January 24th, 2023

I know it’s masochistic, but I couldn’t help it. I found myself thinking about Florida Governor Ron DeSantis and his all-out assault on education, specifically education about racism, Wokism (if that’s a word), the LGBTQ+ community, and anything else he doesn’t agree with.

I began my long and winding journey down the DeSantis rabbit hole when I learned that yesterday was the day in 1964 when South Dakota became the deciding and 38th state to ratify the 24th amendment to the US Constitution.

The 24th Amendment prohibits making the right to vote conditional on paying a poll tax, or any other kind of tax. It reads:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 24th Amendment applied to Presidential and Congressional elections. Two years later, in 1966, the U.S. Supreme Court ruled 6–3 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment.

Seven states never held a vote to ratify the Amendment. They are Wyoming, Arizona, Arkansas, Oklahoma, Louisiana, South Carolina and Georgia. One state voted to reject the Amendment’s approval altogether. That was Mississippi. Mississippi again. The state seems to rejoice in being the bottom of the country’s bird cage.

Four states, Virginia, North Carolina, Alabama and Texas, waited years to ratify the Amendment, with Texas being the last, in 2009.

If you don’t count Virginia, which enacted a poll tax in 1876, but repealed it six years later in 1882, Florida was the first state to make a poll tax a condition of voting, enacting the legislation in 1885. It became effective in 1889. In 1941, 52 years later, Florida repealed its poll tax.

Florida did not repeal the poll tax because its legislators were conscience-stricken and knew they had to do the right thing. No. The state repealed the tax because too many white legislative candidates (they were all white) were buying votes by paying the tax for poor black and white constituents (disproportionately black, of course) who couldn’t afford it themselves. In essence, the tax was no longer doing what it was intended to do: suppress black votes.

Florida had two other legislatively approved ways to suppress black voting. The first was the Literacy test. According to the Tampa Bay Times:

In 1915, the Legislature enacted a literacy test along with a companion grandfather clause. The clause, common throughout the South, declared that any person who had a relative who voted prior to a certain date did not have to take the test.

According to the proposed Florida law, if you had a relative who was eligible to vote on Jan. 1, 1867, you were exempt from taking the test. Since no black Floridian was voting prior to that date, all of them had to pass the test.

Blacks were frequently asked more technical and legal questions than whites. When one black applicant was asked what “habeas corpus” meant, he responded: “Habeas corpus means this black man ain’t gonna register today.”

The final way the legislature held down, disenfranchised, the black vote in Florida was by means of the Criminal Disenfranchisement Law. This law, first enacted in 1868, reenacted in 1968, and in effect even today, bars anyone with a felony conviction from ever voting. Florida is one of seven states that still retain this disenfranchisement statute, which disproportionately affects blacks.*

Disproportionate imprisonment of blacks is not something peculiar to Florida. Nationwide, according to Bureau of Justice data, 18 and 19-year-old black men are 12.4 times more likely to be imprisoned than their white peers. And it doesn’t get much better as blacks age, as the chart below shows.

With this as background (and here are 24 more charts showing pervasive racism directed at blacks), Governor DeSantis insists there is no such thing as institutional racism, especially in Florida. And he’s gone to great lengths to make sure anyone in Florida who suggests otherwise will require divine intervention to escape punishment.

Ask Andrew Warren. Last August, DeSantis suspended Warren, the twice-elected Hillsborough County State Attorney, saying he violated his oath of office and has been soft on crime (Remarkably, Florida’s Governor has the legislative authority to do this). What had Warren done? Nothing, except for signing a group statement with other prosecutors saying “we decline to use our offices’ resources to criminalize reproductive health decisions.” In other words, Warren was suspended, not for something he did, but for something he said he might do at some time in the future.

Warren sued to get his job back. Yesterday, a federal judge ruled that, although DeSantis violated the Florida Constitution and the First Amendment, he lacked the power to reinstate Warren. In his 53-page ruling, U.S. District Judge Robert Hinkle, while grudgingly dismissing the case, excoriated DeSantis and his staff for attacking Warren for purely political reasons. Nonetheless, DeSantis won, which is usually the way things work in Florida.

And now, as we are smack dab in the second day of “Florida Literacy Week,” comes the Florida Department of Education’s new rules to enforce the Governor’s Parental Rights In Education Act, known by critics as “Don’t Say Gay” or the Stop WOKE Act and Florida law 1467, the Curriculum Transparency Law, which requires school districts to be transparent in the selection of instructional materials and library and reading materials.

Taken together, these two statutes limit what teachers can teach and what their students can read.

The two statutes are supposed to apply to what goes on in the classroom. Consequently, in federal court filings, lawyers representing DeSantis insist  the statutes do not apply to library books. In practice the opposite is true. A recent 23-slide librarian training program, approved by the Florida Department of Education, asserts: “There is some overlap between the selection criteria for instructional and library materials.” One slide says that library books and teacher instructional materials cannot include “unsolicited theories that may lead to student indoctrination.”

Good luck trying to understand what an “unsolicited theory” is, or what “student indoctrination” means. Indoctrination into what?

The rules are confusing for librarians, but they’re even murkier for classroom teachers, many of whom have created little classroom libraries over the years of their teaching. The Department of Education’s new rules require “media specialists” to vet every one of the non-curriculum  books teachers may have in their classrooms, as well as all the books in the school libraries. In Florida, some school librarians earn “media specialist certificates.” These are the “media specialists” tasked with vetting all the books in Florida’s 4,202 K-12 public schools. In Popular Information, Judd Legum reports that Kevin Chapman, the Chief of Staff for the Manatee County School District, told him that County principals told teachers last week they are subject to a third-class felony charge if unvetted books in their classrooms are deemed to violate the prohibitions contained in either of the two statutes.

Needless to say, those little classroom libraries are disappearing faster than the small piece of meat I dropped on the kitchen floor this morning right in front of my 80-pound dog, Lancelot (so named because he’s not Lance-a-little).

Florida law 1467 on Curriculum Transparency is particularly pernicious, because it prohibits teachers from exercising their own educated judgement regarding what is appropriate for their particular students. For Florida’s teachers, this is scary stuff. They are going to have to be very careful with what they say, or even suggest, in their classrooms.

Some teachers, perhaps many, will refuse to give up their intellectual freedom. It will be interesting to see how that plays out. As George Orwell said, “In a time of universal deceit, telling the truth becomes a revolutionary act.”

Nevertheless, it seems Governor Ron DeSantis has achieved in Florida what all autocrats crave. He has brazenly fastened iron bonds on what the next and future generations of Floridians are allowed to know. To my mind, he has also underestimated the youth of his state whose intelligence, curiosity, global involvement, and just plain desire to know and learn cannot and will not be inhibited by anything an autocratic governor, whose overarching goal in life is to rule the world, will ever do.

My money’s on the kids.

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*Angela Behrens, Christopher Uggen, and Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AMERICAN JOURNAL OF SOCIOLOGY 559 (2003).

 

 

Racism In America: The Road To The New Jim Crow Runs Along The School To Prison Pipeline

Thursday, September 29th, 2022

The story of mass incarceration in America is bigger than American jails and prisons, even with their two million captives. And it’s bigger than probation and parole, even with the five million people held in the prison of their homes through ankle bracelets, weekly drug tests and GPS technology.

Thus, Reuben Jonathan Miller writes in the Introduction to his book Halfway Home: Race, Punishment and the Afterlife of Mass Incarceration, published by Little, Brown and Company in 2021.

Today, 19.6 million people live with a felony record, four times the size of the population on probation and parole and ten times the size of the American prison census. One-third of those people are Black. More impressive is that one-third of currently living Black American men have felony records.  Think about that for a moment. And then ponder that the number of Black women behind bars is eight times greater today than in 1980.

Since the early 1970s, we have been incrementally putting Black Americans in a crime box. Today, as Miller writes, “An entire class of people are presumed guilty of some unspecified crime long before they break a law.” Does the phrase, “Driving while Black” ring a bell?

This week, in a new study from the National Registry of Exonerations, we learn Black Americans are seven times more likely than white people to be falsely convicted of serious crimes, and spend longer in prison before exoneration.

The study examined defendants who were exonerated after serving at least part of a sentence — sometimes spending decades in prison. From the study’s findings:

  • Black people represent 13.6% of the American population, but account for 53% of 3,200 exonerations in the registry as of Aug. 8, 2022;
  • Innocent Black Americans were 7½ times more likely to be convicted of murder than innocent white people; and,
  • The convictions that led to murder exonerations of Black defendants were almost 50% more likely to include misconduct by police officers.

Most of those long-serving Black defendants were exonerated by a handful of big city prosecutorial conviction integrity units (CIUs). It appears they have only scratched the surface.

How did this happen? One reason is because of the well-maintained “school to prison pipeline.”

Beginning in the 1970s, educators figured out that kids acting out in school could seriously disrupt learning for their classmates. What to do? The answer? Suspend them. And that’s what happened. It started with a trickle that slowly turned into Niagara Falls. And the kids most often suspended were Black, followed by Latino.

According to the U.S. Department of Justice, which last year ordered school districts to respond to student misbehavior in “fair, non-discriminatory, and effective” ways, Black students are suspended and expelled at a rate three times greater than White students, while Black and Latino students account for 70 percent of police referrals.

The bias—racism—starts young. Black children represent 18 percent of pre-school students, but account for 48 percent of pre-school suspensions. Yes, we’re talking about 4-year-olds. Also, students with disabilities are twice as likely to be suspended than their non-disabled peers, and LGBT students are 1.4 times more likely to face suspension than their straight peers.

According to the National Education Association,

According to research, Black students do not “act out” in class more frequently than their White peers. But Black students are more likely to be sent to the principal’s office for subjective offenses, like “disrupting class,” and they’re more likely to be sent there by White teachers, according to Kirwan Institute research on implicit bias. (White students, on the other hand, are more likely to be suspended for objective offenses, like drug possession.)

The Kirwan Institute blames “cultural deficit thinking,” which leads educators to “harbor negative assumptions about the ability, aspirations, and work ethic of these students—especially poor students of color—based on the assumption that they and their families do not value education.” These racist perceptions create a stereotype that students of color are disrespectful and disruptive, which zero tolerance policies exploit.

You can follow all this like a bright red rope in the snow. For some kids, Black especially, going to school leads to suspensions, which leads to staying out of school, which leads to questionable behavior, which leads to incarceration, which leads to a wasted life.

The Kirwan Institute calls this “implicit bias.” I call it implicit racism.

But it’s not all doom and gloom. Many educators now realize they have been feeding the lion, rather than helping the student. In Colorado, for example a new law restricting the use of suspensions and expulsions has resulted in suspensions falling by 25 percent, while school attendance and punctuality have improved by 30 percent.

In Maryland’s Montgomery County Education Association, the superintendent and teachers put together a new student code of conduct that minimizes suspensions and allows students to learn from their mistakes. Meanwhile, other districts have signed “memorandums of understanding” with local law enforcement agencies that keep minor offenders out of criminal courts.

This represents progress, but progress only in a few places. The national school to prison pipeline still runs strong. And there is resistance to shutting it down.

Consider the tremendous efforts underway in red states to tamp down, even eliminate, discussion of race in schools. A bizarre and almost unbelievable one comes from Florida where, in April, Governor Ron DeSantis’s Education Department banned (they say “rejected”) 54 math textbooks, out of 132 submitted by publishers for the next school year. According to the  Department of Education, 26 of those math textbooks were rejected because they contained “prohibited topics,” including Critical Race Theory (CRT) and Social-Emotional Learning (SEL). 2+2 = Racism?

CRT is a graduate-level academic framework which explores “laws, policies, and procedures that function to produce racial inequality.” This is sometimes referred to as “structural racism.” It is not something you typically find discussed in a K-12 math textbook. In fact, it’s not typically addressed in K-12 at all.

Florida Commissioner of Education Richard Corcoran said the math textbooks were rejected because children deserve “a world-class education without the fear of indoctrination or exposure to dangerous and divisive concepts in our classrooms.” The Department’s announcement, showed how much DeSantis controls things when it included this quote from him: “It seems that some publishers attempted to slap a coat of paint on an old house built on the foundation of Common Core, and indoctrinating concepts like race essentialism, especially, bizarrely, for elementary school students.” Wow! I had no idea math could be so divisive. Stupid me.

The Department’s announcement also carried this jewel:

“We’re going to ensure that Florida has the highest-quality instructional materials aligned to our nationally-recognized standards,” said Commissioner of Education Richard Corcoran. “Florida has become a national leader in education under the vision and leadership of Governor DeSantis. When it comes to education, other states continue to follow Florida’s lead as we continue to reinforce parents’ rights by focusing on providing their children with a world-class education without the fear of indoctrination or exposure to dangerous and divisive concepts in our classrooms.”

“Nationally recognized standards?” “National leader in education?” “World-class education?” This proved too big to resist.

Intelligent.com publishes annual state rankings of K-12 education drawing upon key metrics related to performance, safety, community, investment, class size, and attendance for all 50 states and the District of Columbia. Where does “national leader” Florida rank in the latest analysis? Smack dab in the middle of the pack. Number 27 in academic performance and number 25 in overall performance. In no area does Florida rank in either the top five or the bottom five. That is the definition of mediocre.

I’m happy to say that my Commonwealth of Massachusetts, which DeSantis considers a socialistic state, ranked Number 1 in the latest rankings.

One last point about those math textbooks banned in Florida. Judd Legum and his team at Popular Information, a site with which I am becoming fonder by the day, bought the banned books and read them all. Try as he and his team might, they could find nothing objectionable in any of them. I mean, it’s math!

Once again, Governor DeSantis flexes his imagined Popeye muscles to push his personal, ambitiously political agenda rather than  objective truth. Meanwhile, the school to prison pipeline remains alive and well and continues to throw Black kids off the educational cliff into the oblivion below.

While we feel great empathy and sympathy for our fellow citizens weathering Hurricane Ian in FLorida, the DeSantis paranoia about any of Florida’s children learning about and actually studying the history of racism right up to the present jacks us back into a more sophisticated, but still real, still deadly, Jim Crow South.

 

 

 

 

Friday Thoughts About Precrime: Alive And Well In The Florida Of Ron DeSantis

Friday, August 5th, 2022

Precrime: A predictive policing system dedicated to apprehending and detaining people before they have the opportunity to commit a given crime. The term was coined by Philip K. Dick and became the basis for the plot of The Minority Report, a short story of his, published in Fantastic Universe Science Fiction magazine in 1956.*

On Thursday of this week, Florida Governor Ron DeSantis, surrounded by Tampa Bay Area sheriffs (fifteen of them, all male), suspended Andrew Warren, the twice-elected Hillsborough County State Attorney, saying he violated his oath of office and has been soft on crime.

DeSantis then appointed Susan Lopez to serve as acting state attorney during Warren’s suspension. Lopez was appointed by the governor to serve as a Hillsborough County judge in 2021. She previously served as the Assistant State Attorney in the 13th Judicial Circuit.

DeSantis suspended Warren because in June, following the Supreme Court’s overturning of the Roe v. Wade decision of 1972, Warren joined 91 other attorneys general and district attorneys around the country in signing a statement  declaring they would “decline” to prosecute “reproductive health decisions.”

Florida’s Senate will now take up Warren’s suspension. If it upholds the governor’s move, Lopez will remain State Attorney until an election can be held to choose Warren’s permanent replacement, permanent, that is, until the next election, or until another suspension if DeSantis becomes annoyed again.

I would like to mention a few points to consider about all this:

First, Florida’s Constitution gives its Governor the right to remove any elected official “for reasons of misfeasance, malfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.”

Governor Rick Scott, DeSantis’s predecessor and a politician about whom we have written before, exercised this power twice. In 2018, he suspended Broward County elections supervisor Brenda Snipes on the heels of a tumultuous recount, citing a litany of well-publicized problems, including the misplacement and inadvertent mixing of ballots. A year before, he had reassigned more than two dozen potential death penalty cases away from Orlando state attorney Aramis Ayala after she declared she wouldn’t pursue capital punishment.

As the Editorial Board of the Tampa Bay Times wrote yesterday, “That remedy was more appropriate than a blanket removal from office.” But still, DeSantis does have the power to do what he did.

Second, everything Ron DeSantis does from morning till night must be colored in the light of his presidential ambitions. He, like so many other politicians who believe they deserve to be President, is forever circling above the bloated body of Donald Trump, waiting and hoping for the former President to stumble and fall, so he may swoop down and grab the political gold ring. Sadly, there is no Cincinnatus here, Cincinnatus, the Roman farmer of 458 BCE revered for his virtue, who left his farm to become General and in 16 days rescued Rome from imminent defeat and promptly retired to his farm.

Third, what exactly did Warren do? Answer: Nothing, except signing a group statement saying “we decline to use our offices’ resources to criminalize reproductive health decisions.” Yes, the wording could have been better, much better, actually. It should have made clear the prosecutors would make decisions on an individual basis. Regardless, Warren has yet to refuse to prosecute anybody for violating Florida’s anti-abortion law. DeSantis’s suspension is a pre-emptive strike by the Ron DeSantis Precrime Unit, a bone thrown to his political base for his upcoming 2022 gubernatorial reelection and presidential run in 2024. If you doubt that, ask yourself why DeSantis spent so much time at his Thursday press conference talking about San Francisco, George Soros and “woke” criminal justice reform? Ask yourself why the sheriffs he called upon to speak spent so much time talking about the “evils’ found in other parts of the country, the very blue parts?

Finally, if Governor DeSantis can “suspend” Andrew Warren because he thinks Warren will do something he has yet to do, then he can suspend any legitimately-elected Florida official with whom he disagrees. That is scary.

Who’s next?

 

*

The Sunshine State Goes Darth Vader Dark

Saturday, April 23rd, 2022

In 1967, 55 years ago, the Walt Disney World Company proposed building a recreation-oriented development on 25,000 acres of property in Central Florida. The property sat in a remote area of Orange and Osceola Counties, so secluded that the nearest power and water lines were 10-15 miles away. Neither Orange nor Osceola County had the services or the resources needed to bring the project to life.

In that year, the Florida State legislature created a special taxing district for Disneycalled the Reedy Creek Improvement District (RCID)that would act with the same authority and responsibility as a county government.

Walt Disney World then moved ahead with its vision to turn 38.5 square miles of largely uninhabited pasture and swamp land, into a global destination resort that today hosts millions of visitors every year.

The Special Taxing District designation gave the Disney company significant tax benefits amounting to tens of millions of dollars every year. However, those special tax benefits came with special upkeep responsibilities.

The new legislation said Walt Disney World would be solely responsible for paying the cost of providing typical municipal services like power, water, roads, fire protection etc.

Local taxpayers, meaning residents of Orange and Osceola County, would not have to pay for building or maintaining those services.

That all changed yesterday when Governor Ron DeSantis signed legislation revoking Disney’s Special Taxing District designation. Now, Disney will be paying taxes it did not up to now have to pay. It will also be relieved of having to  provide the municipal maintenance services it has provided for the last 55 years for Orange and Osceola Counties, whose combined population is about 1.8 million. With Disney and its 80,000 Floridian employees no longer picking up the bill, the responsibility for all those municipal services, including Police and Fire, now falls to the counties. Property taxes (the way municipalities raise revenue in Florida) will  increase substantially.

Orange County Mayor Jerry Demings is worried. “My primary concern is about any particular cost shifts that are mandated by the state to local governments,” he said in an interview with Orlando’s News 6. He should be worried.

Digging deeper, Sarah Rumpf of Mediaite notes repealing Disney’s status means that Orange and Osceola Counties, in addition to municipal services, are now responsible for Disney’s $2 billion bond debt—a 20% to 25% tax hike costing $2,200 to $2,800 per family of four. And if that’s not enough, since Disney’s RCID pays more and has better employee benefits than the Florida government, county workers taking on the jobs currently performed by Disney will likely have to take pay and benefit cuts. Yikes!

In another little twist, since both counties voted for Joe Biden in the 2020 election, Machiavellian DeSantis has found a new and improved way to stick it to opponents.

The creation, passage, signing and enactment of this legislation happened in four days.

The question is Why? Why all this political steamrolling? The answer is because Governor DeSantis, who brooks less dissent than Caligula, is upset because Disney’s CEO Bob Chapek had the daring temerity to criticize what has come to be known as the Governor’s “Don’t Say Gay” bill. Chapek even went so far as to apologize to his 80,000 employees for not condemning the bill earlier and more strongly.

The bill, officially known as the Parental Rights in Education bill, would ban classroom discussion about sexual orientation or gender identity in kindergarten through third grade; lessons on those topics in other grades would be prohibited unless they are “age appropriate or developmentally appropriate,” a vague threshold, indeed. And parents would be allowed to sue over violations. It doesn’t take the Oracle of Delphi to see where this is headed.

The “Don’t Say Gay” bill is DeSantis throwing seasoned red meat to his right-wing carnivores in Florida. It is DeSantis showing his many followers exactly what he thinks of the LGBTQ+ population. It is discriminatory and downright bigoted. But in Florida, it resonates, and the Governor’s lapdog legislature is happy to walk three paces behind carrying the bags.

In the immortal words of that great American salesman and inventor Ron Pompeo, “But wait. There’s more!”

In response to the 2020 census, the Florida legislature was required to draw up new legislative maps. It did, and the gerrymandered result gave Florida Republicans a guarantee of two additional seats in the US Congress. However, this was not good enough for Governor DeSantis, who created his own maps, which guaranteed four additional seats. In DeSantis’s version, Republicans would be expected to win 20 of the state’s 28 congressional districts, a four seat increase from the 16 they hold now. The Republican-dominated Legislature, in happy subservience, approved the Governor’s maps, which he signed into law three days ago. In addition to giving the Republicans four more seats, the new maps eliminate two currently held by Black Democrats, one of whom is Val Demings, who is challenging Marco Rubio in next year’s senate election. In the game of Pool, we’d call this an Elegant Combination.

The map is expected to draw a near-immediate court challenge from Democratic-aligned groups that contend the proposal violates federal and state law because it dismantles and diminishes those two seats currently held by the Black Democrats. Recognizing Democrats would challenge in court the new maps, Republicans, planning ahead, even included in the final bill $1 million to pay for that fight. Trouble is, it’s not clear if that legal battle can be resolved before June, when candidates must qualify for the ballot.

If all this were real warfare instead of the political kind, we would say Governor DeSantis and his Republican army had just won a Battle of Annihilation.

 

 

 

 

 

It’s Been A Bumpy Ride Since 1972

Tuesday, June 14th, 2016

In its report to President Nixon, the 1972 National Commission on State Workmen’s Compensation Laws, created by the Occupational Safety and Health Act of 1970, concluded that workers’ compensation laws and benefits were vastly disparate among the states. Benefits in one state might be generous, while across the nearest border they’d be parsimonious.

Although Commission members differed on some points, they unanimously agreed parity among the states was highly desirable. They also recognized that to achieve this goal federal preemption as well as federal minimum standards were impractical for two reasons. First, the federal government had not demonstrated it was capable of successfully undertaking such an effort and, second, entrenched vested interests would fight to the death to preserve the status quo (I wonder what the members would say about today’s vested interests’ clawhold on the system?).

Consequently, in its report, the Commission made 84 coverage and benefit recommendations to the states, 19 of which it termed “essential” in order to establish an adequate workers’ compensation law. In the thirty-year period between 1972 and 2002, the states adopted an average of 12.9 of the 19 recommendations, or about 67% of them. The nationwide workers’ compensation crisis of the late 1980s and early 1990s put the brakes on any movement to adopt more of the recommendations.

In the recent past, workers’ compensation reform has percolated again, only this time in the opposite direction. For example, the October, 2015, Propublica/National Public Radio series, echoing back 43 years to 1972, once again threw a stark light on the continuing lack of uniformity in state benefits. In a kind of circle-the-wagons, and if that doesn’t work, head-to-the-bunker reaction, the series was roundly and caustically criticized by members of the workers’ compensation industry. But, as John Adams said in his summation when courageously defending British soldiers following the Boston Massacre, “Facts are stubborn things.” And one, inescapable fact is that in terms of the generosity of workers’ compensation benefits, in 2016 it matters greatly in which state an injury occurs.

Then there’s opt-out. Given the complexity and bureaucracy of the workers’ compensation system, I certainly cannot blame employers for saying, “We want out.” However, if employers are allowed to create their own systems, what happens, as I’ve written before, “down the street, around the corner at Kenny’s Citgo when one of Kenny’s five employees is injured on the job?”

And now, in a little uphill blowback, the Florida Supreme Court has ruled it is unconstitutional to cut off temporary total disability benefits at 104 weeks to a worker who remains totally disabled and unable to work and has not reached maximum medical improvement. This harkens back to the 1972 Commission’s Recommendation 3.17, which said total disability payments should be paid for the duration of the disability without regard for dollar amount or time. It will be interesting indeed to see how Florida deals with this ruling. It is a serious setback for employers.

I have to admit a nationwide lack of uniform benefits makes no sense to me. I just don’t get it. The 1972 Commission also had a remedy for this. It recommended, “that compliance with these recommendations should be evaluated July 1, 1975, and, if necessary, Congress, with no further delay in the effective date, should guarantee compliance.” Well, that never happened did it?

So, where are we?

We’ve advanced some distance, but, as John Burton, the Chair of the 1972 Commission, suggests, if we continue to advance at this rate, the 19 essential recommendations will be law throughout the land sometime in the 23rd century.

As with everything else in business, this all comes down to money.

Exclusive Remedy wins: Safe in Florida … for now. Also upheld in DBA suit

Thursday, June 25th, 2015

The big workers comp news of the week: A three-judge panel of the 3rd District Court of Appeal overturned a ruling that challenged the concept exclusive remedy: Appeals court tosses out key workers-comp ruling. Refresher: In the 2014 Florida case often referred to as the Padgett ruling, Miami-Dade Circuit Judge Jorge Cueto ruled ruled workers compensation unconstitutional, commenting that state legislative reforms had weakened the law to a point where the remedy for employees was no longer sufficient to warrant the loss of their right to sue employers.

But before exclusive remedy proponents break out the champagne to celebrate the victory, in Padgett Out, Now What? Dave DePaolo dissects the ruling, explaining why any celebrations may be premature.

“But the 3rd DCA set aside Judge Cueto’s ruling on procedural grounds, not addressing any of the merits. This leaves the question open.

The organizations pushing the constitutional challenge have vowed to continue the fight.

And those defending the system realize that the attacks will continue, particularly since there are still two cases pending in the Florida Supreme Court attacking smaller provisions of the law on similar grounds (Westphal v. City of St. Petersburg is about the statutory limits on the payment of temporary total disability benefits, and Castellanos v. Next Door Co. involves a challenge to the cap on claimant attorney fees).”

For the legal nerds in the crowd, a must-see analysis on the case can be found at Judge David Langham’s post It is Padgett Time, Third DCA Reverses. As Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings, Langham wields some expertise on the matter — his post is worth reading.

Exclusive remedy upheld in Defense Base Act ruling

In other recent exclusive remedy legal news, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reaffirmed that the Defense Base Act (DBA) is the exclusive remedy for contract workers. See: The D.C. Circuit’s Message to Injured Government Contractor Employees: ‘There’s an Exclusive Remedy For That’ in National Law Review.

“Despite the Act’s broad exclusivity provision, in Brink v. Continental Insur. Co., an estimated class of 10,000 contractor employees who were injured in Iraq and Afghanistan brought a purported class-action lawsuit for $2 billion against dozens of government contractors, alleging that the contractors conspired with their respective insurance carriers to deny the workers DBA benefits. But a three-judge panel of the D.C. Circuit unanimously rejected plaintiffs-appellants’ claims and, in a 17-page opinion, made five key findings that will help government contractors defend similar lawsuits in the future.”

Related

3rd DCA Reverses Summary Judgment in FWA Constitutional Challenge to Exclusive Remedy

Brink v. Continental Insurance Company, Court of Appeals

Appeals Court Tosses Out Key Workers Comp Ruling

D.C. Circuit tosses suit brought by injured military contractors

Presumption Laws: Wide Open Door to Benefits

Monday, October 22nd, 2012

Jimmy Walters worked for the Florida Department of Corrections. In December 2009, he came down with a cold, but continued to work for a week. He suffered from chills and nausea on his days off and then experienced chest pain. He went to a hospital, where he was treated for “heart symptoms” and subsequently diagnosed with myopericarditis and cardiomyopathy. He was hospitalized for several days. He filed a workers comp claim, under the Sec 112.18, the “firefighter’s presumption” which creates a rebuttable presumption of occupational causation for disabling heart disease.
For most workers, there would be no conceivable issue of compensability for flu-caused heart problems, but most workers do not work in the public safety arena and most workers are not protected by presumption laws. The facts of the case were not in dispute: there was a direct causal relationship between Walters’s stomach flu and subsequent heart problems. His initial claim was denied by the state of Florida and by a judge on appeal, who ruled that Walters had not proven that his viral gastroenteritis was an occupational disease or that the exposure was traceable to the workplace.
The District Court of Appeal overturned the ruling and awarded benefits for the treatment of heart disease. The judges noted that the presumption statute shifts the burden of proof from the claimant to the employer: “The state had the burden to prove he did not get the virus at work, and failed to carry its burden.” Some burden! The chain of causality is stark and rather crude: for public safety employees, any heart ailment caused by illness is compensable, unless the employer can trace the exposure to specific, non-work conditions. Where the cause/exposure is unknown – as in most cases – there can be no outcome other than the awarding of benefits.
By facilitating benefits to firefighters and police who may develop cancers or heart desease related to employment, law makers acknowledge the unique exposures for the people who protect us.[Back in 2008, my colleague Julie Ferguson provided the background for presumption laws.] But the generous language of these statutes may open the door to compensability far wider than any prudent legislature would intend.
The Politics of Presumption
In practice, presumption laws may create as many problems as they solve. For stressed taxpayers who ultimately foot the bills, cases of questionable compensability can be shocking: the firefighter with lung cancer who smokes two packs a day, the obese cop with heart disease, and now, the corrections officer with a flu-caused heart problem. Are these truly work related? For most people, the answer would be “no way.” For the public safety employees covered by presumption laws, compensability is a given. Their safety net is woven of much finer cloth than that which protects most people in the working world.

Physician drug repackaging, front and center

Thursday, July 12th, 2012

The drum that our colleague Joe Paduda has been beating for several years – the outrageous cost of repackaged drugs in Florida – appears to be resonating. This esoteric little nook and cranny of workers comp that is costing employers millions across many states would normally not attract much attention in mainstream media – heck, even a lot of grizzled workers comp vets weren’t conversant with the practice or the potential adverse affect on costs. But yesterday, the issue made the business section of the New York Times in an article by Barry Meier and Katie Thomas, Insurers Pay Big Markups as Doctors Dispense Drugs. They sum up the crux of the matter: “At a time of soaring health care bills, experts say that doctors, middlemen and drug distributors are adding hundreds of millions of dollars annually to the costs borne by taxpayers, insurance companies and employers through the practice of physician dispensing.” The article goes on to note that, “The practice has become so profitable that private equity firms are buying stakes in the businesses, and political lobbying over the issue is fierce.”
Florida and the case of Automated HealthCare Solutions are used as examples in the article. We’ve leave you to follow the excellent job the reporters do in outlining the issue, tracking down connections, and showing how a recent legislative attempt to close this costly loophole was squelched. Alan Hays, the Republican state senator in Florida who introduced the defeated bill said that, “The strategy of the people that were opposed to this bill was to put the right amount of dollars in the right hands and get the bill blocked,” he said. “And they were successful in doing that.” That defeat is costing employers and taxpayers some $62 million, according to the state’s insurance commissioner.
Don’t miss the accompanying infographic, Paying Much More in the Doctor’s Office. Also note the 424 comments to the article, which we are still perusing at this time – it’s not often that a detailed workers’ comp issue garners that much attention in the so-called mainstream press.
We give a big tip of the hat to Paduda, who has posted on the Florida repackaging issue repeatedly. going back several years, despite some personal jeopardy in the form of a threatened lawsuit, later dismissed by a federal judge.
How Connecticut is dealing with Physician Drug Repackaging
In February, Paduda posted that physician dispensing was coming to Connecticut and urged his readers to contact regulators. At Evidence Based blog, Michael Gavin posts an update: Connecticut Gets Drug Repackaging Right: Removing the Financial Incentive. Interestingly, this was done via a rule change rather than a statutory change. Plus, it does not ban the practice of physician dispensing, and it even allows a reasonable administrative fee. Gavin suggests that these central tenants of an effective regulatory approach to repackaged drugs might serve as a model for other states. Florida, take note!

Risk, mining industry growth, drug repackaging, E&O, SIGS & more news of note

Monday, June 4th, 2012

Risk roundup – Nina Kallen posts the latest Cavalcade of Risk at Insurance Coverage Law in Massachusetts – check it out.
Mining – Joe Paduda talks about the growth of the mining industry, noting that it is up almost 60% over the last ten years, with an increase of 12% since the beginning of 2011 – a growth rate that looks like it will surpass the BLS ten-year projection of 24%. Joe notes that regulators, work comp executives and providers should be on alert since this growth will have a dramatic impact on selected states, citing North Dakota as one example.
Disparity in healthcare costs – Dave DePaolo has an interesting post on the wide disparity in cost for cash paying patients vs insurance. He points to a recent LA Times article that cited numerous real world examples (routine blood work was charged $782 by the hospital, $415 by the insurer, and $95 if paid in cash.) DePaolo asks: “What would fee schedules look like if those in charge of these pricing decisions shared with payers and regulators all of the data that identified each friction point in insurance based reimbursement schedules versus getting paid cash?”
Florida drug repackaging – Do the people who write the biggest checks to politicians determine the cost of workers comp in Florida? That’s a question many keep raising, and it appears so. In the article drug-bill battle is lucrative for lobbyists, legislators, Aaron Deslatte of The Orlando Sentinel talks about how Broward County’s Automated Health Care Solutions has invested nearly $6 million into lobbying to protect the practice of drug repackaging by physicians. Why should this issue be of concern to Florida employers and insurers? Joe Paduda offers a primer on repackaged drugs and the effect on work comp costs.
E&O and workers compWorkers’ compensation is the leading cause of agent in E&O claims, accounting for approximately 10% of all claims annually, according to Curt Pearsall. He notes the majority of claims involve the following issues: Questions involving coverage for sole proprietors, partnerships or single-member LLCs; Dealing with a broker to place coverage for that “tough” risk; Dealing with the state workers’ comp market to place coverage; Ensuring employees in all states are covered; Placing clients in a trust/alternative program; and U.S. Longshoreman and Harbor coverage.
On reforming SIGS – At LexisNexis Workers’ Compensation Law, John Stahl offers a summary and some of the salient points of the International Association of Industrial Accident Boards and Commissions’ (IAIABC) recent report on self-insurance groups (SIGs): Regulatory Challenges Regarding Self-Insured Groups: Failures Prompt New Regulation. He notes that employers liked the low cost of joining an SIG but did not realize the potential liabilities associated with that choice, and that many employers made the false assumption that they were protected by state regulation. The full IAIABC report is available for $45: Self-Insured Groups for Workers’ Compensation: Effective Regulatory Strategies.
CA protects hair care workers – Jon Gelman posts about a groundbreaking settlement in California that protects hair care salon workers. The settlement was between California’s Attorney General and manufacturers of Brazilian Blowout hair smoothing products that contain a cancer-causing chemical. In addition to paying fees and penalties and implementing safeguards for workers, hair care facilities must warn the public about the cancer-causing potential of the chemicals used in the procedure and must cease deceptive advertising.
Poultry workers push back – Citing concerns over worker and public health, poultry workers, safety advocates, and groups ranging from the Southern Poverty Law Center and the National Council of LaRaza, to the American Public Health Association and Nebraska Appleseed all united in opposition to USDA’s proposed ‘modernization” plan that would shift work from inspectors to workers. At The Pump Handle, Celeste Monforton talks about this issue: Public health officials urge USDA to withdraw plan to ‘modernize’ poultry inspection, worker and food safety will suffer.
A Request for Help Bob Wilson calls all UR hands on deck for participation in Health Strategy Associates’ survey. Learn more here: Your Opinion Needed on Critical Utilization Management Survey.
Migration from Mexico – Peter Rousmaniere posts about a recent Pew Hispanic Center Report on Mexican migration, which states that, “The largest wave of immigration in history from a single country to the United States has come to a standstill. After four decades that brought 12 million current immigrants–more than half of whom came illegally–the net migration flow from Mexico to the United States has stopped–and may have reversed.”
Some of the factors cited as contributing to this change include the weakened U.S. job and housing construction markets, heightened border enforcement, a rise in deportations, the growing dangers associated with illegal border crossings, the long-term decline in Mexico’s birth rates and changing economic conditions in Mexico.
it would be funny if it weren’t so true – Cartoonist Jen Sorenson issues An Open Letter To The Supreme Court About Health Insurance.
Death on the Job The Weekly Toll.
More noteworthy news

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Risk Transfer as Three-Card Monte

Tuesday, May 22nd, 2012

When you’re looking for ethically-challenged business practices, Florida is usually a good place to begin. The latest kerfluffle involves a toxic combination of very high deductibles for workers comp insurance and employee leasing companies. Oklahoma based Park Avenue Property and Casualty Insurance sold policies with deductibles as high as $1 million to PEOs. Think about that for a moment: a million dollar deductible is virtually self-insurance, as very few claims break that formidable barrier. Park Avenue, along with its successor companies, sold these policies to employee leasing companies, who in turn passed the coverage through to their client companies. With such a huge deductible, the coverage must have been relatively inexpensive compared to standard market rates.
Under large deductible programs, the insurance company pays all the bills and then seeks reimbursement from the client company, up to the deductible amount. It’s not hard to figure out the flaw in this business model: client companies will welcome the discounted premiums, but when it comes time to pay back the insurer for paid losses, they will be unable to cut the checks. Given the complete absence of regulatory-mandated collateralization for the claims liability, there is no way the insurer will be reimbursed for large loss claims.
That’s where the three-card Monte comes in: the insurer wrote these policies knowing full well that the deductibles would never be paid. That’s why Park Avenue morphed into Pegasus Insurance, which morphed into Southern Eagle Insurance, which flies off into the pastel sunset of bankruptcy.
Gaming Risk Transfer
The cards have been moved around at blinding speed, but who ends up paying? Once again, those who played by the rules will have to pay for those who didn’t. (For a more egregious example of punishing the innocent, see our blogs on the New York Trusts.) Policy holders in Florida will be charged somewhere between 2% and 3.5% of premiums to cover the $100 million plus of losses.
In the WorkComp Central article by Jim Sams (subscription required), Paul Hughes, CEO of Risk Transfer Company, which markets insurance to PEOs, complains that singling out the PEO industry is unfair. The state should never have allowed Park Avenue and its winged successors to write insurance, as they were clearly incapable of assuming the risk. True enough, but even Hughes would have to admit that the PEO industry offered a ripe venue for the scam: individually, PEO clients would never have qualified for high deductible coverage, but somehow, under the collective umbrella of a PEO, they did.
Meanwhile, PEOs are being sued for failing to reimburse the claims payments of Park Avenue and its successors. After the PEOs lose these cases, they will seek payment from their clients, who are unlikely to have the ability to pay anywhere near what is owed. The litigation will go on for a long time, but the bottom line is simple: risk transfer cannot exist where none of the parties can cover the exposure. That isn’t risk transfer: it’s a shell game, where those who did not play are left holding the bag.
Follow Up – June 7, 2012
After posting this blog, I received a call from Paul Hughes, CEO of Risk Transfer in Florida, who is quoted above. While not contesting the premise that large deductibles are poorly managed in Florida (and elsewhere), he believes that I unfairly singled out PEOs in the blog. The fundamental issue is the failure of the state to adequately regulate and oversee large deductible programs. I agree.
Please take a few moments to read Paul’s response, which employs the useful metaphor of a casino for the risk transfer industry:

The core issue to me is the role of the regulator versus the business owner in the management of the “casino” (insurance marketplace). That is one of the parts of Jon’s article in Workers Comp Insider that blurs the line a bit on what the PEO’s role is within the casino and whose job it is to set the rules. The casino is the State as they certify the dealers to play workers’ compensation (Carriers, MGU’s, MGA’s, Agents and Brokers) and the State also certifies that the players are credible (not convicted of insurance fraud) and can pay/play by the rules of the house. The rules are set by the house and the games all require public filings – ability to write workers’ compensation (certificate of authority), ability to offer a large deductible plan (large deductible filings), agent license, agency license, adjusters license and any other deviation from usual business practices (like the allegations that one now defunct insurance carrier illegally charged surplus notes to desperate PEO’s in the hardest market the industry has ever seen). The “three-card monte” that Jon alludes to in this article is managed not by the dealers (carriers), but by the house (state). Would a real life casino consider it prudent to allow one of their dealers to expose 20% of their $5m in surplus through high deductibles sold to PEO’s with minimal financial underwriting and inadequate collateralization? Would any casino write harder to place (severity-driven) clients to include USL&H, roofers etc with the minimum amount of surplus needed to even operate a carrier…? Of course not. These “big boy” bets would never be allowed in Vegas without the pockets being deep enough to cover the losses.