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School Buses Should Be the First to Go (April 18, 2011)

With the local Llano ISD facing a serious short fall of funds, the need to cut spending is of paramount importance. Most are agreed core educational curriculum should not be cut, but what about transportation?  See, “LISD Financial Crisis, Part 1” (April 4, 2011) This is Part 2.

It has been reported that about 23% of school districts surveyed by the American Association of School Administrators in 2009-2010 are reducing or eliminating school transportation for the coming school year as part of cost-cutting measures. That’s up from the 14% who considered such measures in the previous year. I expect it is much higher the current year.

Some examples:

In Brockton, Massachuisetts, near Boston, the school district expects to save $500,000 by taking 10 school buses off the road – adding to the 20 already cut in the prior year.

In Cobb County, Georgia, the school board consolidated bus routes by eliminating 8,500 stops and revised plans to eliminate 11,000 bus stops and changing stops to avoid busy streets.

In Elkhart, Indiana, the district hopes to save up to $300,000 on transportation costs through changes. Another Indiana school expects to save $800,000 by moving to a shuttle system and still another district eliminated a bus to save $15,000.

School districts in California are faced with a 20% cut in state funding for transportation. The Novata school district eliminated all bus service except for special education students in response.

Texas is faced with similar financial woes. One school district spent $32 million for student transportation services and only received $6.4 million in reimbursement. Texas also doesn’t reimburse the cost of transporting students who live within 2 miles of school. The Houston school district eliminated all bus service for students living within two miles of school. Late bus services for students who stay after school for extra-curricular activities has been eliminated at some schools.

That is the reality facing the Llano ISD – how well the school board, administration, teachers and parents deal with that reality remains to be seen.

Llano ISD is not a big school district having the kind of costs attributed to transportation as some of the districts mentioned above. Rescheduling routes and eliminating a few buses will not have any significant impact on cost savings. The major savings will come from eliminating all transportation services except that required by law for special education children. And by that, I don’t mean to have all students re-classified as special education children!

I offered many safe and cost effective suggestions as to how parents can cope in the eventuality of discontinued bus service for those that might require it. Whether school attendance will be adversely affected simply because the mode of transporting school children is changed is pure conjecture and speculative at best. Parents still want their children tom get the best education possible and for those who don’t, that’s what truant officers are for.

And remember Klee’s Law: "The trouble with Socialism is, sooner or later you run out of other people's money." (Margaret Thatcher)

Illegal Aliens and Subsidized College Tuition (April 18, 2011)

Would you approve of your tax dollars being used to subsidize the college education of an illegal alien? My guess is that your answer is the same as mine. Absolutely not! But that’s exactly what is taking place in Montgomery County, Maryland. And Judicial Watch has decided to take legal action to stop it.

On Thursday, January 20, Judicial Watch held a press conference in Annapolis — Maryland’s historic state capital — to announce the filing of a taxpayer lawsuit against the Board of Trustees of Maryland’s Montgomery College for unlawfully charging discounted “in county” tuition rates to students who graduate from Montgomery County public high schools, regardless of their place of residency or immigration status.

Their new lawsuit alleges Montgomery College’s tuition policy violates both Maryland and federal law and places a substantial financial burden on Montgomery County taxpayers, who subsidize student tuition. Judicial Watch filed the lawsuit on behalf of Montgomery County taxpayers Michael Lee Philips, Patricia Fenati, and David Drake in the Circuit Court for Montgomery County.

Here’s a partial summary of JW’s argument (as described in our complaint):

Under federal law, unlawfully present aliens generally are ineligible for state or local public benefits, including post-secondary education benefits such as reduced tuition, unless a state has enacted a law affirmatively providing for such eligibility. The State of Maryland has never enacted a law affirmatively providing that unlawfully present aliens are eligible to receive reduced, in-county tuition at public institutions of higher education, including community colleges such as Montgomery College…

Pursuant to Maryland law, “Montgomery College is required to charge out-of-state tuition to any student who attends a community college in the State of Maryland and is not a resident of the State…”

Defendant Board's long-standing policy is causing substantial, pecuniary loss to taxpayers in Montgomery County and the State of Maryland. By providing reduced, in-county tuition to all students who graduate from Montgomery County public high schools, regardless of their residence or status as unlawfully present aliens, Montgomery College is failing to collect revenue that, by state and federal law, it is required to collect.

By law the tuition paid by a student who attends community college is determined by a student’s place of residence. Here’s how it breaks down: Students who are residents of the county or counties supporting the community college they attend are charged an in-county rate. Students who are residents of the State of Maryland but reside outside the county or counties supporting the community college they attend are charged an in-state rate. Students who reside outside of the State of Maryland are charged an out-of-state rate.

This seems like a simple, straight-forward approach to me.

However, Montgomery College has a long-standing policy of providing graduates of Montgomery County public high schools, including illegal aliens who unlawfully reside in the United States, the lowest, “in-county” tuition rate regardless of their place of residence.

Montgomery College described its policy in financial statements for Fiscal Years 2007, 2008 and 2009: "[T]he Montgomery College policy is applicable to all persons, equally, and includes all citizens as well as undocumented aliens…" The tuition policy was formally adopted by Montgomery College’s Board of Trustees on November 15, 2010.

But it bears repeating. The tuition policy is illegal.

This is probably why Montgomery College’s tuition policy is so vastly different from other institutions of higher education, as The Washington Post noted recently: “Some public colleges in the region don't admit illegal immigrants as students, and those that do typically charge them higher non-resident rates because they cannot prove legal residency.”

Laws in Maryland and Virginia allow public universities to accept illegal aliens, but they are under no obligation to do so, and these institutions certainly cannot provide them illegal perks in the form of discounted tuition. (In fact, the University of Virginia, as the Post notes, has gone to court to protect its right to deny admission to illegal aliens.)

How much money are we talking about here? Between 2006 and 2009, Montgomery College failed to collect $5,870,852 in tuition because of its policy to unlawfully allow illegal aliens and other “out-of-state” students to pay a discounted “in-county” tuition rate.

By the way, this policy has been questioned by the College’s own auditors. Maryland State Delegate Pat McDonough first alerted Judicial Watch to this issue last year, prompting Judicial Watch to conduct an independent investigation, which led to this taxpayer lawsuit.

As one Judicial Watch clients, Mike Phillips, said at their press conference, the policy is simply “grossly unfair.”

Montgomery College’s funneling of tax dollars to tuition benefits for illegal aliens is against the law. And this policy is especially egregious in this age of government budget crises. Judicial Watch hopes the court will put a stop to Montgomery College’s policy of providing illegal perks at taxpayers’ expense.

How to Get Good Grades (April 11, 2011)

The Organization for Economic Cooperation and Development's (OECD) PISA study details and ranks the reading, mathematics and science skills of 15 year olds in each member country every three years.  But even more important than ranking school systems is knowing how to make them better, says the Economist. 

That is the aim of another new study by the consulting group McKinsey.  The consultancy selected school systems where it has seen standards rise and identified what they had in common.

    * For starters, McKinsey says, throwing money at education does not seem to do much good, at least in those countries that already send all their young people to school.

    * America, for example, increased its spending on schools by 21 percent between 2000 and 2007, while Britain pumped in 37 percent more funds.

    * Yet in this period, according to PISA, standards in both countries slipped.

What separates the big spenders from the improvers, McKinsey found, is the awareness that different types of school systems respond to radically different types of reform.  In countries where schools mainly seek to teach pupils to read, write and grasp some basic math, centralization seems to work.  All teachers should be directed to teach the same lessons from the same textbooks.

Once the school system can teach to basic standards, it should pay more attention to collecting detailed data on examination results.  This serves not just to make schools accountable, but helps to identify the best teaching methods.

Countries where schools have already attained a higher standard should become pickier in choosing teachers -- making teaching a high-status profession boosts standards.

At the very top of the global educational league table -- where only a handful of countries or systems within them manage to attain really high standards -- decentralization is the name of the game.  The authorities hand control over to teachers, most of whom are highly educated and motivated, so they can learn from each other and follow the best practices.

Source: "How to Get Good Grades," The Economist, November 25, 2010.

For text:

http://www.economist.com/node/1757263

LISD Financial Crisis, Part 1 (April 4, 2011)

If you haven’t been reading the series of articles written by Ronnie Rudd, President of the LISD School Board, you should do so now – otherwise you only have yourself to blame for how the current school financial crisis will affect you, your children and your pocketbook. The articles are published on the Health and School News page. Mr. Rudd encourages all interested parties – and that should include everybody, to offer their suggestions and comments as to how to address the problem at the local level. His e-mail address is rrudd@hughes.net

I’ve addressed LISD financial issues in earlier articles but now that the “stuff” has finally hit the fan and the chickens have come home to roost, I’ll address them again.

First off, the system is self-defeating. It was created to appease political interests, not to benefit school children nor to do so with a modicum of fiscal responsibility i.e. restraint. It’s not like the bureaucrats were spending their own money. But that’s another topic for another day. For now, let’s look at what the politicians, educators and other self-interest groups have gotten us into.

In order to preserve the core educational requirements mandated by the state in this economic climate, the LISD has to cut spending. There are only a few options available and still preserve the educational integrity of the District.

First off, we need to do away with all transportation services that are not mandated by the government. We would not be the first school district to do this in Texas as well as other states – amidst squawks from parents I might add. But then, economic realities should trump self interests – especially in times like these.

Within the LISD for 2002 – 2010 net transportation costs were $905,979. That includes the cost of fuel, maintenance, repairs, purchases, personnel, insurance, utilities, etc. $27,317 was spent on transporting special education children but that amount is not included in these figures as it is reimbursed by the state - a less direct tax on taxpayers.

As costs continue to rise, this amount will quickly exceed $1 million.

There has been a concern expressed earlier by me that the area in which the school buses are garaged and maintained may fast become a hazardous waste dump if it isn’t already. An EPA investigation could lead to fines far and above anything the school district could possibly pay, ending up bankrupting the District. But that's only a concern. I have no hard facts that would substantiate my suspicions - but it should be looked into by someone with qualifying Super Fund experience.

Although one may argue making available a good general education to all children within a community benefits the community at large, it really depends upon the child. Unless there's a family business involved, most Llano school children with anything of substance to offer the community leave Llano soon after they graduate from high school. The return on investment as far as Llano is concerned falls far short.

However, the argument that taxpayers should be forced to provide a private bus service to take children to school is a different matter. It may be a convenience to the parents but of little benefit to the greater community. Private transportation services could easily replace the government-run school bus system. Taxpayers shouldn't have to take on this added burden. In fact, the majority of those opposed to doing away with the school bus system are parents (and teachers, but they tend to be “touchy, feely” types anyway), so you know where the self interests lie. It's the same as them saying, "You should have to pay to take my children to school so that I don't have to do it." As the saying goes, "Nice work if you can get it," and parents have been getting it for years at taxpayers expense.

Either the kids can get to school by themselves, parents or other volunteers can form car pools for the kids, parents  themselves can take their own kids to school, private transportation systems can provide the needed services, etc. – all at no taxpayer expense and at a substantial savings to the school district.

We’re all going to have to make sacrifices thanks to the mess our politicians have gotten us into (although in the greater scheme of things this would be a de minimus sacrifice). Look at it as a patriotic duty to arrange to have your own kids taken to school not on the taxpayers dime but on your own. It’s the American way!

Next week I’ll suggest other ways the District can reduce spending and still preserve the educational integrity of the District.

And remember Klee’s Law: "When you subsidize poverty and failure, you get more of both." - James Dale Davidson, National Taxpayers Union

The Ratio of Teachers To Non-Teachers (April 4, 2011)

By Ronnie Rudd, Llano ISD School Board President

At a recent press conference, the Chair of the Senate Committee on Education stated that the ratio of teachers to non-teachers was 4 to 1 in the 1970s but had climbed to 1 to 1 today, and that the financial crisis for public schools essentially could be solved by getting the ratio back closer to the 4 to 1.  The Senator was flanked by six other senators who appeared to give approval to this notion.  Having spent a lot of time the past few years on school finance issues, this struck me as strange.

Many have inferred from the Senator’s comments that all we have to do to cut public education cost is to cut administrative costs. Implicit in this statement, it seems, is that all non-teachers are administrators and that all these people are totally non-productive to the school.  Nothing could be farther from the truth.

According to the statistics from the Texas Education Agency, the official arm of Texas government, the ratio of teachers to non-teachers has remained relatively the same for the last twenty years.  There has been a slight drop in teachers who have in turn been replaced by instructional teacher aides.  I am alarmed that the State is making a $9 billion decision based on such faulty numbers.

In Llano ISD, personnel numbers are closely monitored by Superintendent Dennis Hill.  They are reviewed by the Board of Trustees, and the superintendent informs us of when it is necessary to add or delete a position.  Costs are reviewed in the budget process, and we believe none of these people are overpaid.

Let’s review the numbers.  Keep in mind that in a few cases, such as bus drivers, they may hold another job within the school system (such as teacher aide or maintenance), but I will not distinguish that here.

We have 320 employees.  151 are full or part time teachers.  That leaves 169.  Let’s take the big numbers first.

44 are full or part time teacher aides.  They are in the classroom helping with instruction.  Two thirds of these are in elementary school where they are most needed to allow more time for one-on-one instruction with students.  This is particularly important with English language learners, disadvantaged students who come to school well behind other students in basic education, and special education students.  Without aides in these areas, we would either: a.) have to have more teachers at greater cost b.) allow these students to drop farther behind, or c.) slow down the class for all students so they could learn together.  We have chosen to use aides.  Doing so is cheaper and improves student performance.  A number of aides are in special education and are covered by federal or state grants.  If they go away, the money goes away.  If all the aides go away, the teachers have to work harder and longer.

27 are bus drivers.  On a percentage basis this accounts for the largest difference between us and other districts since our district is geographically larger than the average district.  Students must get to school if they are to learn and pass the required tests.  Keep in mind that for every day a student misses class, our revenue goes down because our payment to the state under Robin Hood goes up since Robin Hood is dependent on attendance.

20 are cafeteria workers.  We get federal funds for free and reduced price meals, and have to provide them.  In either case, we break even through the years on the cafeteria, so if the cafeteria disappears, we don’t save anything.

23 are secretaries, clerks, bookkeepers, etc.  They keep up with attendance, grades, permanent files, personnel, payroll, reports to the Board of Trustees and administration, and fill out the multitude of reports that the federal and state government require us to file.  If we don’t file the reports and forms, our funding goes away.  If we get rid of these people, the only ones left to do the paper work are the teachers, and they would have to do it after hours.

15 are custodians.  The buildings must be cleaned. 

9 are maintenance and mechanics who keep things running.

7 are full time special education.  Federal and state funding covers most if not all of their costs.

Each campus has a principal, either an assistant principal or program coordinator who handles things like curriculum and behavioral issues, a librarian, a nurse, and a counselor.

 Campus wide, we have 4 people who handle technology.

The rest are district personnel—superintendent, assistant superintendent, business manager, accounting manager, athletic director and trainer, and a truant officer.

Everyone has a defined job and works hard.  We could eliminate some of them, but something would suffer if we did.

The elimination of many of these positions would not save money and in some cases would actually cost us money.  We look closely at these factors when deciding on personnel and do not believe our numbers are out of line.

A Brief History Of School Funding In Texas (March 21, 2011)

By Ronnie Rudd

School funding in Texas has been a source of controversy for well over half a century.  The funding system has been declared unconstitutional on several occasions and has been the source of numerous legislative battles.  The future is likely to see more of the same.  Before discussing school finance, there are two provisions of the Texas Constitution which have been cited on numerous occasions by the courts:

“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” (Article VII, Sec. 1)

“…no State ad valorem tax shall be levied upon any property within this State for general revenue purposes.”(Article VIII, Sec. 1-a)

The first major change in funding was the Gilmer-Aiken Act of 1949.  This Act consolidated a number of school districts (Llano County had over 40 school districts at one point), provided for educational funding to largely come from the State, and provided for minimum teacher salaries. This Act essentially established the funding system for the next 40 years.

In 1984, the Edgewood I. S. D. sued the Commissioner of Education stating that the 1975 Foundation School Program law created an unfair inequity in funding for poor property wealth districts.  In 1989, the Texas Supreme Court ruled in the case now referred to as Edgewood I. S. D. v. Kirby (I) that the system was “neither financially efficient nor efficient in the sense of providing for a ‘general diffusion of knowledge’ statewide and thus violates Article VII, Sec. 1 of the Texas Constitution.”

In response to this finding, in 1990 the Legislature passed SB 1 providing for biennial studies on district inequity with adjustments to address any problems.  The funding mechanism stayed essentially the same.  In 1991, the Texas Supreme Court in Edgewood v. Kirby (II) ruled that the funding system remained unconstitutional.

In 1991, the Legislature passed HB 351 creating 180 County Education Districts to levy state mandated property taxes and redistribute the money to equalize funding in the school districts.  In 1992, the Texas Supreme Court, in Carrolton-Farmers Branch I. S. D. v. Edgewood I. S. D., ruled that this action created a state ad valorem (property) tax and was in violation of Article VIII, Sec.1-a of the Constitution.

In 1993, the Legislature passed SB 7, which provided for property tax recapture from property wealthy districts and sending the money to property poor districts to help equalize funding among the districts.  The Texas Supreme Court in Edgewood I. S. D. v. Meno determined that this recapture was constitutional.  Thus, Chapter 41 of the Education Code, popularly known as “Robin Hood”, was born and validated by the Supreme Court. (Readers of English literature will recall that Robin Hood stole from the rich and gave to the poor.)*

In 2001, in a case known as West Orange-Cove Consolidated I. S. D. v. Alanis et. al., the plaintiff districts argued that because over two thirds of districts were effectively forced to tax at or near the $1.50 maximum maintenance and operations tax rate, the local property tax had become a de facto State property tax in violation of the Texas Constitution.  They also argued that they could not meet their responsibilities to promote a “general diffusion of knowledge” as required by Article II, Sec. 1 due to a lack of adequate funding.  The Texas Supreme Court heard the case and sent it back to the District Court in Travis County where Judge John Dietz ruled in favor of the plaintiffs.

There is no definition of what level of funding is required to provide a “general diffusion of knowledge” as required by Article II of the Constitution.  However, Judge Dietz suggested that the entire education system with all its requirements and mandates are needed.  Many believe that this means that the State must adequately fund the system to be sure it meets its already stated objectives outlined in the Texas Essential Knowledge and Skills (TEKS), graduation and drop-out rate requirements, end of course (formerly TAKS) exams, and Federal mandates such as No Child Left Behind.  It is a tall order.

What do the court cases mean?

-Robin Hood is constitutional under the current cases.

-Any taxation system that results in most districts having a uniform property tax rate is subject to challenge for creating a state wide property tax.

-Any gross disparity in funds available per student across district lines is likely unconstitutional.

-Any reduction in funding that results in a reduction of the quality of education may be unconstitutional.

Solving school finance and meeting these criteria will be challenging.  As can be seen by the court cases above, the Legislature has a spotty record in passing legislation which passes constitutional muster.

Texas relies heavily on property taxes to fund education. There are a number of problems with this approach, the main one being that there is no connection between ability to pay and the tax levied.  The only solution for some to solve this problem is to sell their home.  The Legislature recognizes this problem.  Shortly after the West Orange-Cove case legislation was passed to lower the school maintenance and operations tax cap from $1.50 per $100 valuation to $1.04, with the proviso that increases above this level could be made only with voter approval. With this came a freeze in funding at 2005 levels.

To replace the loss in funding, the Legislature enacted a broad based business tax, which accountants generally recognize as an income tax. Immediately after the legislation, several things happened:  attorneys and CPAs immediately began studying ways to minimize the tax for their clients, businesses redirected operations where they could do so to minimize the tax, and the economy went into a nose dive, resulting in a significant decrease in tax collections.

As if the loss of revenues was not enough, school costs continued to rise.  Salary increases for teachers at even nominal levels were required, educational mandates by the State were increased but not funded, and utility and fuel costs increased significantly. In addition, schools are adding approximately 80,000 students a year to their rolls.  Thus, the “perfect storm” was created.  In 2010, over 60% of school districts had to dip into fund balance to stay afloat. Some of them have already had sizable staff reductions, and some are at the maximum tax rate permitted by law.  It is questionable whether many of these districts can survive a significant decrease in funding.

There has been much discussion as to how much funding to local districts will be cut, but a 10% figure seems to be recurring.  In Llano I. S. D. that would be a reduction of approximately $1.5 million.  In our district, which is comparable to many others, about 80% of our expenditures go to salaries.  To achieve a $1.5 million cut, there would have to be significant staff reductions.  I don’t believe this could happen without having a substantial negative impact on performance of the students.  Should this happen state wide, the funding would be subject to constitutional challenge as noted above.

<ópan style="font¼size:12.0pt;linm-height:115%;foît-family: &quo|;Trebuchet MS&qýot;">The author of this paper is not an attorney and expresses no legal opinions on any of these issues.

Ronnie Rudd is President of the Llano ISD School Board.

*Editor's Note: The fictitious character "Robin Hood" actually stole from the government who at the time was the rich (and still is). However, the term "Robin Hood is a misnomer in that under Chapter 41 it is the government that is stealing from the people - not the other way around.

  “Robin Hood” In Llano ISD (March 21, 2011)

By Jill Minshew, Business Manager And

Ronnie Rudd, Board President

Since the early 1990s, property wealthy school districts in Texas have been subjected to giving part of their local property taxes to the State to help fund property poor districts.  The definition of a property wealthy district has changed over the years and currently is defined as a district where the appraised value of the property in the district divided by the weighted average daily attendance (WADA) of students exceeds $476,500.  Generally speaking, once this level is reached, all taxes over that amount go to the State.  The formula gets a little complex after this point, which hopefully we can simplify here.

Llano ISD currently has WADA of 2472 students (see calculation below) which, when multiplied by the $476,500 theoretical retention would leave us with only $11,779,080 that the district gets to keep (of a total levy of $28,372,848).  However, this is adjusted by a couple of factors:

The calculation above is close to the actual amount, but not exact due to other complex items in the formula, which are not discussed here.  The penalty for initial low tax rate mentioned above results from the fact that when the formula was devised, the Llano ISD tax rate was $1.42/$100 valuation.  The cap was $1.50, which many districts were at.  As a result of being frugal with taxpayer money, we are penalized each year in the “Robin Hood” calculation.

WADA for Llano ISD is calculated by a formula.  Instead of just adjusting the dollar amount of “Robin Hood”, the formula adjusts attendance.  In the end, the same result is achieved.  Here is Llano ISD’s current budgeted calculation:

This is a somewhat oversimplified definition of where we are, but is very close to the actual numbers.

This sharing provision has been tested in the courts several times and has been held constitutional.  It is likely to be with us until the State totally revises its tax structure.  This year, we are estimating that our payment will be approximately 54% of our taxes.

The Robin Hood calculation is a complex formula.  This paper is a very simplified way to understand the calculation and is not intended to give the whole formula.  If you have questions, please contact the authors.

Obamacare Unconstitutional (December 20, 2010)

Attorney General Abbott Praises Ruling in Virginia That the Federal Health Care Law’s Individual Mandate Violates the U.S. Constitution

AUSTIN – Texas Attorney General Greg Abbott released a statement following U.S. District Judge Henry E. Hudson’s ruling today in Virginia that the Patient Protection and Affordable Care Act’s individual mandate violates the United States Constitution:

“The federal court’s ruling is consistent with the Constitution and consistent with the American people. There are limits to congressional power, and Congress has overstepped its limits here by forcing Americans to purchase health insurance -- even against their will.

“The court’s ruling is an important step toward limited government and reducing federal mandates. The judge’s decision bodes will for Texas’ position in its lawsuit challenging the constituionality of ObamaCare.

“The federal health care takeover’s requirement that all Americans – against their will – purchase government-approved health insurance is unprecedented and violates the Constitution. The Commonwealth of Virginia’s challenge, as well as Texas’ challenge, contends that Congress does not have the authority to force individuals to buy a service from a private insurance company as a condition of being a law-abiding American, and unconstitutionally infringes upon Americans’ individual liberties. No public policy goal – no matter how important or well-intentioned – can be allowed to trample the protections and rights guaranteed by our Constitution.”

Texas is part of a 20-state coalition against the federal health care law that includes Florida, South Carolina, Nebraska, Pennsylvania, Louisiana, Washington, Colorado, Michigan, Utah, Alabama, South Dakota, Idaho, Indiana, Mississippi, North Dakota, Arizona, Nevada, Georgia and Alaska. The lawsuit is filed in the Federal District Court in the Northern District of Florida. The states are joined in this lawsuit by the National Federation of Independent Business, and individual plaintiffs Mary Brown and Kaj Ahlburg.

The lawsuit was filed immediately after President Barack Obama signed the bill into law. The legal action specifically challenges the Patient Protection and Affordable Care Act and names the U.S. Departments of Health and Human Services, Treasury and Labor as defendants because those federal agencies are charged with implementing the Act's constitutionally impermissible provisions.

Highlights from the Obamacare Ruling (December 20, 2010)

A federal district judge on Monday sided with the state of Virginia in its challenge to the health law, saying Congress exceeded its "constitutional boundaries" when it required most Americans to carry health insurance or pay a fine.

Judge Henry E. Hudson of the Eastern District of Virginia said the provision in the bill, known as the individual mandate, "would invite unbridled exercise of federal police powers." Below, highlights from his 42-page ruling.

*** 

"A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers."

* * *

"[S]everal operative elements are commonly challenged in Commerce Clause decisions. First, to survive a constitutional challenge, the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. ... In her argument, the Secretary [of the Department of Health and Human Services, Kathleen Sebelius] urges an expansive interpretation of the concept of activity. She posits that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps even next week or next year... This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence."

* * *

"At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health coverage -- it's about an individual's right to choose to participate."

* * *

"This Court is . . . unpersuaded that [the individual mandate] is a bona fide revenue-raising measure enacted under the taxing power of Congress. . . . No plausible argument can be made that it has 'the purpose of supporting the Government.'"

* * *

"Importantly, it is not the effect on individuals that is presently at issue -- it is the authority of Congress to compel anyone to purchase health insurance. An enactment that exceeds the power of Congress to adopt adversely affects everyone in every application."

* * *

"Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers."

* * *

"The shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms 'penalty' and 'tax' are synonymous."

* * *

"Having found a portion of the Act to be invalid. . . the Court's next task is to determine whether this Section is severable from the balance of the enactment. ... The most recent guidance on the permissible scope of severance is found in Free Enterprise Fund v. Public Co. Accounting Oversight Board. 'Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact.' ... [W]ithout the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently. Therefore, this Court will hew closely to the time-honored rule to sever with circumspection . . . . Accordingly, this Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501."

Texas Asks for Order Throwing Out Obamacare (December 20, 2010)

Texas Attorney General Greg Abbott says the new Health Care Reform Law is the only time in America's history in which people have been punished by the government 'solely for being alive,' and he tells 1200 WOAI news that he is asking a federal judge in Florida for a 'summary judgment' which will declare 'Obama Care' to be unconstitutional.'

A 'summary judgment' is when a judge issues a ruling in a case without even hearing arguments, because the argument for one side or the other is overwhelming.  U.S. Justice Department lawyers are also asking for a summary judgment upholding Health Care Reform.

Abbott says Health Care Reform violates the Ninth and Tenth Amendments to the Constitution.  The Tenth Amendment specifically guarantees that the state will have the right to any powers not specifically granted to the federal government, and Abbott says five states have already passed laws forbidding 'the sort of governmental coercion imposed by the individual mandate.'

But Abbott's most powerful argument is the Ninth Amendment argument.  Congress approved Health Care Reform by using the so called 'Commerce Clause' of the Constitution to justify the 'Individual Mandate,' which requires that all Americans buy health insurance or pay a penalty or face some other type of punishment, generally having their income tax refunds withheld.

"The Individual Mandate' is unprecedented," Abbott said in his filing with the judge. "Never before has Congress required Americans to purchase a good or service based simply on the fact of their residence.

Abbott says the 'Commerce Clause' regulates a person's 'activity.'  The Commerce Clause, for example, allows Congress to mandate automobile fuel efficiency standards because it has the right to regulate 'activity,' in this case, the buying and selling of automobiles.

But Abbott says an American choosing not to buy health insurance is in fact not engaging in activity, and he even quotes Webster's Third New International Dictionary, defining active' as 'characterized by action rather than contemplation or speculation, opposed to passive.'

"The individual mandate applies across the board," Abbott said.  "People have no choice and there is no way to avoid it.  Those who fall under the individual mandate either comply with it or they are penalized.  It is not based on an activity that they make the choice to undertake.   Rather, it is based solely on citizenship and on being alive."

House May Block Food Safety Bill Over Senate Error (December 13, 2010)

A food safety bill that has burned up precious days of the Senate’s lame-duck session appears headed back to the chamber because Democrats violated a constitutional provision requiring that tax provisions originate in the House.

By pre-empting the House’s tax-writing authority, Senate Democrats appear to have touched off a power struggle with members of their own party in the House.

The Senate passed the bill Tuesday, sending it to the House, but House Democrats are expected to use a procedure known as “blue slipping” to block the bill, according to House and Senate GOP aides.

The debacle could prove to be a major embarrassment for Senate Democrats, who sought Tuesday to make the relatively unknown bill a major political issue by sending out numerous news releases trumpeting its passage.

Section 107 of the bill includes a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution.   According to a House GOP leadership aide, that section has ruffled the feathers of Ways and Means Committee Democrats, who are expected to use the blue slip process to block completion of the bill.

“We understand there is a blue slip problem, and we expect the House to assert its rights under the Constitution to be the place where revenue bills begin,” the GOP aide said.

The blue slip could lead to one of two likely outcomes.    Senate Majority Leader Harry Reid(D-Nev.) could simply drop the issue and let the next session of Congress start from scratch, a strategy that would allow him time in the lame-duck session to tackle other last-minute priorities, such as the expiring 2001 and 2003 tax cuts, a long-term continuing resolution, an immigration bill and a repeal of the military’s ban on openly gay service members.

Or he could try to force the issue in the Senate after the House passes a new version of the bill.    But in order to do that and still tackle the other issues, he would need a unanimous consent agreement to limit debate.

According to Senate GOP aides, a unanimous consent agreement is all but certain to be a nonstarter because the bill’s chief opponent, Sen. Tom Coburn(R-Okla.), will not agree to such a deal.

Coburn “will object and demand changes as [he has] from the get-go,” a GOP aide familiar with the situation said.

This is not the first time that Reid has run afoul of the Constitution’s tax origination provisions. His efforts to pass a tourism promotion bill that was key to his re-election hopes was temporarily stymied earlier this year because the Senate passed a version with revenue raisers similar to those in the food safety bill.

Spokesmen for Speaker Nancy Pelosi(D-Calif.), Ways and Means Democrats and Sen. Tom Harkin(D-Iowa), a co-sponsor of the food safety bill who authored its language, did not immediately return requests for comment.   Aides for Ways and Means Democrats also did not immediately return requests for comment.

Link:  http://www.RollCall.com/news/-201012-1.html

November Update on the Obamacare Lawsuit (November 1, 2010)

By Attorney Van Irion, Liberty Legal Foundation

Obama, Pelosi, Reid, and the United States have responded to our complaint and motion for preliminary injunction by filing a motion to dismiss. This is exactly what I expected. I’m drafting our reply and requesting a hearing.

The best news is that we’re all in agreement about the current state of our government. The defendants agree with us that current Supreme Court precedent leaves no meaningful limits on Congressional power. In fact their entire motion makes our case for us. Throughout their motion they argue that Congress has authority…well, basically, to do whatever it wants.

The only difference of opinion is this: what is the supreme law of the land? Is it the original intent of the Constitution, or is it the Supreme Court’s perversions of the Constitution over the past 80 years? This difference of opinion is at the heart of our complaint. It is the grounds for our entire case. I’m pleased, but not surprised, that the arguments made by the defendants lead strait to the heart of the matter.

I’m also stunned and saddened that the defendants can point to so much Supreme Court precedent that supports their arguments. It’s amazing that when you pull one absurd string an entire pile of absurdity unravels and falls down around your shoulders. We’ve posted the defendants’ actual motion to dismiss online if you’d like to read it, but here is my cliffs-notes summary:

The defendants argue that:

•        Any act of Congress is authorized under the commerce clause, under Congress’s tax-and-spend powers, and under the general welfare clause;

•        Even if Obamacare isn’t authorized by the Constitution, the American people have no right to sue and this court has no right to hear the case;

•        Even if Obama, Reid, and Pelosi violated their oaths of office, there’s nothing any court can do about it; and

•        (This one is my personal favorite) You, Mr. Federal Court Judge, must ignore your own personal oath to uphold the Constitution and you must, instead, follow and enforce the Supreme Court’s perversions of the Constitution, even if you are absolutely certain that to do so would violate the Constitution.

Sadly, most of these absurd arguments accurately reflect current Supreme Court precedent. This is how far gone our Federal Court system has gotten. This is why the OCA and Liberty Legal Foundation’s mission are so important.

I will be making arguments attacking the points made by the defendants. Some of their arguments are simply wrong, and I will take great pleasure in pointing those out.

However our main argument will remain what it has always been: Supreme Court precedent that clearly subverts the original intent of the Constitution must be overturned, starting with Wickard v. Filburn and its progeny.

The twentieth century saw America lose its Constitution because the third branch of government decided to abdicate its role as a check on the other two branches. The only branch of government that is NOT popularly elected, and whose primary role is to enforce a document intended to protect individuals from a tyrannical majority, began telling us that our only recourse was the ballot box. If we are to re-establish our Constitutional Republic, we must first correct the worst of our flawed Supreme Court precedent.

Obamacare is an opportunity to begin our war against flawed precedent because Obamacare is a perfect example of where we end up if Congress has no limits on its power. The defendants’ response illustrates this point. They explain that Obamacare is within Congressional authority because “the economy loses up to $207,000,000,000 a year because of the poorer health and shorter lifespan of the uninsured, and that medical expenses cause 62 percent of all personal bankruptcies.” So, your poorer health is a matter within Congresses authority to regulate. Your decisions that affect your lifespan, your health, or your financial security all are within Congresses authority to regulate. Congress can prohibit, require, punish and demand anything that affects your health, your finances or your lifespan. I challenge anyone to identify anything that is not within Congressional authority to regulate using this method of justification.

Please do NOT think that this is an exaggeration. This is exactly what the defendants argue in their motion. More depressing, it is exactly the type of argument that Wickard and its progeny REQUIRE for the Federal government to justify its Congressional authority.

I’m honored to represent close to 30,000 Americans in the OCA that understand how important it is that we win this case and this war. Please tell everyone you know and please support Liberty Legal Foundation.

In Liberty,

Van Irion

van@libertylegalfoundation.com

Liberty Legal Foundation

9040 Executive Park Dr., Suite 223

Knoxville, TN 37923

Health Care Reform is Paid for by Cuts to Medicare (September 6, 2010)

The enormous health care bill signed into law will be largely paid for by cuts to services many seniors depend on. Here is just a sampling of the Medicare cuts, totaling more than $500 billion, to come:

In 2010:                

Medicare will cut reimbursements to inpatient psychiatric hospitals.

In 2011:                

Medicare cuts to home health agencies begin.

Wealthier seniors ($85K/$170K) begin paying higher Part D premiums.

Medicare cuts begin to ambulance services, ambulatory surgery centers, diagnostic labs, and durable medical equipment.

Seniors are prohibited from purchasing power wheelchairs unless they first rent for 13 months.

New Medicare cuts to long term care hospitals begin.

New Medicare cuts to hospitals and cuts to nursing homes begin (FY12)

Medicare Advantage cuts begin. Participating seniors will face premium increases, benefit cuts, or both.

In 2012:               

Medicare reimbursements for dialysis treatments are cut.

Medicare cuts to hospice begin.

In 2013:                

Medicare reimbursements to hospitals that serve low-income seniors will be cut.

WHAT THIS MEANS FOR YOU:  When providers get paid less by Medicare for services seniors depend on, many may be forced to decrease their services or close some of their locations just to make ends meet.   This means that seniors may experience a decrease in their access to essential care, which is already a problem for many in rural districts.  The cuts to Medicare Advantage may cause many of these insurance providers to stop offering plans to seniors, forcing seniors back into traditional Medicare.

Senior should not have to bear the cost of health care reform. Instead, we need common-sense health reform that will lead to quality, affordable health care, without breaking the bank, or cutting services to seniors.   We need to repeal the bill.

Article by JOHN FLEMING, M.D.
Member of Congress

Klee Joins in Suit to Stop Obamacare (August 2, 2010)

Harvey H. Klee, together with more than 25,000 Americans are named as individual plaintiffs in a lawsuit against the Patient Protection and Affordable Care Act (PPACA), filed recently in Federal Court by TN attorney and Congressional Candidate Van Irion. Mr. Irion also filed a motion for preliminary injunction requesting a court order to halt the enforcement of all aspects of the PPACA, also known as Obamacare.

The suit challenges Obamacare on the basis that Congress is not authorized by the Constitution to regulate health care. Mr. Irion is asking the courts to re-evaluate the 68 year-old Commerce clause precedent, arguing that the precedent in effect destroys the intent of the Constitution and specifically violates the 10th Amendment. Mr. Irion says in the motion for Preliminary Injunction, “The fact that the error perpetrated against America in Wickard has fundamentally changed the way our government operates, should not be used as an excuse to continue the error.”

The case was originally filed with one named plaintiff, Anthony Shreeve, on April 8, 2010. Since that time, over 25,000 Americans from all 50 states learned of the suit and asked to join. The latest filings amend the complaint to include the individuals and businesses that have contacted Irion to request that they be joined as co-plaintiffs in the lawsuit. Also included in the latest filings is a motion for a preliminary injunction. If granted, the motion would result in a court order from the Federal Court in Chattanooga prohibiting the Federal government from enforcing Obamacare, pending the outcome of the lawsuit.

Irion’s filed lawsuit is the first suit to allow any US citizen or business to join as a plaintiff and is the only suit to directly attack the legal precedent of the Commerce clause and therefore the Constitutionality of Obamacare. Irion has been interviewed on both Greta Van Susteren’s “On the Record with Greta Van Susteren”, and Judge Andrew Napolitano’s “Freedom Watch.”

“The lawsuit quickly became so popular among grassroots movements, that a website was set up to take plaintiff information and allow people to follow the progress of the case,” said Irion. The suit has been dubbed Obamacare Class Action, or “OCA”, and can be found at http://www.van4congress.org/contact/obamacare-class-action/. Individuals and businesses can join by filling out a form that captures name, address and email address. Phone number and company name is optional, but US companies have the option of signing on as a corporate plaintiff.

“This is truly the ‘People’s Suit’” Irion says. It’s their name on the complaint. America is suing the President, Pelosi, Reid and the Federal government, saying that the Obamacare legislation is wrong. It is unconstitutional and must be overturned.”

The complaint was filed in Federal Court, Eastern District of Tennessee, Chattanooga, on April 8, case file number 1:10cv-71. The amended complaint adding over 25,000 Americans was filed July 19, along with the motion for preliminary injunction. For more information about Van Irion, visit Van4Congress or Law Office of Van R Irion PLLC.

And remember Klee's Law: "The more corrupt the state, the more it legislates." - Tacitus

What Flu Pandemic? (July 26, 2010)

By Fiona Macrae

Widespread warnings were issued about the swine flu 'pandemic'

Declaring a swine flu pandemic was a 'monumental error', driven by profit-hungry drug companies spreading fear, an influential report has concluded.

It led to huge amounts of taxpayers' money being wasted in stockpiling vaccines, it added.

Paul Flynn, the Labour MP charged with investigating the handling of the swine flu outbreak for the Council of Europe, described it as 'a pandemic that never really was'.

The report accuses the World Health Organisation of grave shortcomings in the transparency of the process that led to its warning last year.

The MP said that the world relied on the WHO, but after 'crying wolf', its reputation was in jeopardy.

The report questions whether the pandemic was driven by drug companies seeking a profit. Mr Flynn said predictions of a 'plague' that would wipe out up to 7.5million people proved to be 'an exaggeration', with fewer than 20,000 deaths worldwide.

Britain braced itself for up to 65,000 deaths and signed vaccine contracts worth £540million.

The actual number of deaths was fewer than 500 and the country is now desperately trying to unpick the contracts and unload millions of unused jabs.

The focus on swine flu also led to other health services suffering and widespread public fear.

Pharmaceutical companies, however, profited to the tune of £4.6 billion from the sale of vaccines alone.

Mr Flynn said: 'There is not much doubt that this was an exaggeration on stilts. They vastly over-stated the danger on bad science and the national governments were in a position where they had to take action.

'In Britain, we have spent at least £1 billion on preparations, to the detriment of other parts of the health system. This is a monumental failure on the WHO's part.'

The Council of Europe inquiry heard allegations that the WHO had downgraded its definition for declaring a pandemic last spring - just weeks before announcing there was a worldwide outbreak.

Critics said the decision to remove any need to consider the deadliness of the disease was driven by drug companies desperate to recoup the billions of pounds they had invested in developing pandemic vaccines after the bird flu scares.

But the WHO said its basic definition of a pandemic never changed.

Mr Flynn said: 'It doesn't make any sense as to why they should have changed the definition a month before declaring an outbreak.

'In this case, it might not just be a conspiracy theory; it might be a very profitable conspiracy.'

A Daily Mail investigation earlier this year revealed more than half of the swine flu taskforce advising the Government on its strategy had ties to drug companies.

Eleven of the 20 members of the Scientific Advisory Group for Emergencies had done work for the pharmaceutical industry or are linked to it through their universities.

Concerns about drug companies' influence are also highlighted by a separate investigation by the British Medical Journal and the London-based Bureau of Investigative Journalism.

It found that key scientists behind the WHO's advice on stockpiling pandemic flu pills such as Tamiflu had financial ties with the drug companies that stood to profit. The WHO last night firmly rejected all the criticism.

Spokesman Gregory Hartl said: 'There is no question of this being a fake pandemic. If fits the criteria for a pandemic, which is a new virus to which human beings have little or no immunity and which has spread around the world.

'It spread from zero to 74 countries in the space of 9 weeks - that’s a pandemic.'

He said that not all ties to drug companies were necessarily conflicts of interest.

Repeal of Obamacare Bill (July 5, 2010)

H.R. 4972, introduced by Congressman Steve King, says...

Effective as of the enactment of the Patient Protection and Affordable Care Act, such Act is repealed, and the provisions of law amended or repealed by such Act are restored or revived as if such Act had not been enacted.

Pretty simple, right? So why have only 90 of the 179 representatives that claim to be Conservative signed on as Co-Sponsors? Unfortunately we can't trust many of our Representatives to represent us. Americans overwhelmingly oppose Obamacare. Signing on to this bill as a Co-Sponsor should be a no-brainer in this election cycle. Makes you wonder why they aren't. Many of them want to water this bill down or include other "reforms". Any actual reform can only start with repealing this monstrous bill.

Below is a list of Texas Representatives , with those co-sponsoring at the beginning. Remember this list come election time. Remember there is a big difference between electing Conservatives and electing Constitutionalists. I am a Constitutionalist first, Conservative second and a Republican third. Make sure those you send to D.C. this November are Constitutionalists as well. 

Co-Sponsors. Name Party State Represented District Phone Number

Yes Louie Gohmert R TEXAS 1  (202) 225-3035

Yes Ted Poe R TEXAS 2  (202) 225-6565

Yes Ralph M. Hall R TEXAS 4  (202) 225-6673

Yes Jeb Hensarling R TEXAS 5  (202) 225-3484

Yes John Abney Culberson R TEXAS 7  (202) 225-2571

Yes K. Michael Conaway R TEXAS 11  (202) 225-3605

Yes Mac Thornberry R TEXAS 13  (202) 225-3706

Yes Ron Paul R TEXAS 14  (202) 225-2831

Yes Randy Neugebauer R TEXAS 19  (202) 225-4005

Yes Lamar Smith R TEXAS 21  (202) 225-4236

Yes Pete Olson R TEXAS 22  (202) 225-5951

Yes Kenny Marchant R TEXAS 24  (202) 225-6605

Yes Michael C. Burgess R TEXAS 26  (202) 225-7772

Yes John R. Carter R TEXAS 31  (202) 225-3864

Those Texas Representatives who have failed to co-sponsor the Bill:

 Sam Johnson R TEXAS 3  (202) 225-4201

 Joe Barton R TEXAS 6  (202) 225-2002

 Kevin Brady R TEXAS 8  (202) 225-4901

 Al Green D TEXAS R  (202) 225-7508

 Michael T. McCaul R TEXAS 10  (202) 225-2401

 Kay Granger R TEXAS 12  (202) 225-5071

 Ruben Hinojosa D TEXAS 15  (202) 225-2531

 Silvestre Reyes D TEXAS 16  (202) 225-4831

 Chet Edwards D TEXAS 17  (202) 225-6105

 Sheila Jackson-Lee D TEXAS 18  (202) 225-3816

 Charles A. Gonzalez D TEXAS 20  (202) 225-3236

 Ciro D. Rodriguez D TEXAS 23  (202) 225-4511

 Lloyd Doggett D TEXAS 25  (202) 225-4865

 Solomon P. Ortiz D TEXAS 27  (202) 225-7742

 Henry Cuellar D TEXAS 28  (202) 225-1640

 Gene Green D TEXAS 29  (202) 225-1688

Texas School Spending Tops $11k per Pupil (June 28, 2010)

As we close out this school year, taxpayers may wonder what kind of bang we're getting for our educational buck, asks Michael Quinn Sullivan, President and CEO of Empower Texans.

    * Texans now spend more than $11,000 per year, per student on public education -- with less than half going toward instructional expenses.

    * In the 2008-2009 school year -- the last for which data is available -- Texas schools spent $11,084 per kid; 10 years ago, Texas spent just $5,857 per pupil.

    * If per pupil spending had risen with inflation, the cost after 10 years would have approximately been $7,545. 

So where is the money going?  Well, it's not going to the classroom, says Sullivan:

    * If you think of each kid the way school bureaucrats do -- as bags of money -- and consider your average third-grade class capped at 22 students per teacher, that's $243,848 sitting there.

    * But the money isn't going to the teacher; average teacher pay was $47,313 in the 2008-2009 school year (up from $34,357 a decade ago).

So where's the other $200,000 derived from our average classroom going, asks Sullivan:

    * Of the $11,084 spent per pupil on public education in 2009, only $4,831 went for anything that could even remotely be considered "instructional" expenses as defined by the Texas Education Agency.

    * Over the last decade, student enrollment has risen 15 percent -- from 3.9 million students to 4.6 million students.

    * In that same period, the number of teachers grew accordingly, at 19.3 percent.

    * We now have 14.4 students for every teacher (in 1999 it was 15.2 students per teacher).

But non-teachers?  That's where the growth is.  We had 22 percent more in 2009 than in 1999, says Sullivan.

So for all this spending, and for all these new, non-classroom employees, surely there's been some marked improvement in academic performance.  Actually, there's been a decline in results, says Sullivan:

    * The average Texas SAT score in 1999 was a 992.

    * Over 10 years it has fallen to 988. 

Source: Michael Quinn Sullivan, "Texas School Spending Tops $11k Per Pupil," Empower Texans, May 19, 2010.

Editor’s Note: In spite of the high spending, 25 percent of Texas college students are taking remedial classes. Another example of your tax dollars NOT at work.

Texas SBOE Adopts Social Study Standards (June 28, 2010)

Update to previous article:

The State Board of Education has adopted new social studies and history guidelines for Texas high school classrooms.

The board voted 9-5 on the high school standards. Final edits were being made on the elementary school curriculum.

The standards have been given a more conservative bent by the board. They dictate how political events and figures will be taught to some 4.8 million schoolchildren in Texas and beyond for the next decade.

The standards also will be used by textbook publishers who often develop materials for other states based on those approved in Texas.

The debate has brought national attention to the effort, which this week featured testimony from educators, civil rights leaders and a former U.S. education secretary.

Electronic Textbooks – Another Waste of Money (June 21, 2010)

By Geraldine “Tincy” Miller, State Board of Education District 12

Plans were discussed recently to replace printed textbooks with electronic ones in the state’s pubic schools.  Although some state leaders prefer moving in this direction, I would urge that it not be a top-down approach or a cost-shifting strategy for the state.  And, most important, I would insist that the quality of the materials be the central focus of any change. 

Educators should lead any such transition, not the state.

Various studies have shown that when college students have the option of choosing between e-books and printed textbooks, they overwhelmingly choose the printed textbook because it is easier to read and reference. Therefore, parents, educators and local textbook committees and school boards should have some say over the format as well.

Moving to an entirely electronic format is a major change for schools. Each district will have to figure out the total cost of:

    * Buying the devices

    * Training teachers

    * Setting up the devices

    * Making sure they work for blind students

    * Maintaining, insuring & protecting them from theft and/or damage; and

    * Providing uninterrupted Internet connectivity with Internet filters.

These are all new costs that must be addressed at a time when school districts are facing financial crises and laying off teachers.

Obviously, hardware becomes outdated much more quickly than textbooks.

Is your laptop six or ten years old? By law, instructional materials must last at least six years — and often will be in classrooms as long as 10 years.

This scenario leads me to my second point:

    * The state should not use this move to shift costs to the local level.

If the state is just buying digital materials because they cost less, but districts still want print or are not yet equipped to go digital, that would shift tremendous costs to our local schools and taxpayers.

Will the state make districts choose between spending money on content or devices?

The Legislature has not properly funded the Technology Allotment, which was created to provide funding for technological equipment, and last session it passed legislation that allows districts to use state textbook funds for equipment. Our textbook fund was established to provide students with access to quality learning materials at no cost to local districts.

Because of this new legislation, your child might not have materials to bring home.

The equipment is simply the means to access the content, and we must always remember that it is the content on the devices that is most crucial to our students.

While electronic content can provide some richer experiences, it does not necessarily translate to every subject area. Furthermore, some argue that free Internet options are available to answer the question of cost.

However, free materials certainly do not necessarily live up to standards in which we would like our teachers to operate. Accountability is a primary issue here. Make no mistake about it: If we don’t have quality content, the devices will simply be empty boxes.

Whether in print or electronic format, the State Board of Education certifies the accuracy and alignment of this content to the curriculum, and that is the key to ensuring our students a quality education.

Any further erosion of this system, any mingling of state textbook funds for hardware, and any further shifting of costs from the state to the local level will endanger our students’ education and overburden our schools and taxpayers.

Please contact me via my website by clicking here should you have any questions or concerns.

 Tincy Miller represents Dist. 12 on the Texas State Board of Education.  A Member since 1984, she was appointed by Gov. Rick Perry to serve as Chair from 2003-2007.

The Federal Health Care Nullification Act (May 31, 2010)

Los Angeles, CA  (PRWEB) "Now that Health Care reform has been signed into law, the question people ask most is "What do we do about it?" said Michael Boldin, founder of the Tenth Amendment Center.  "The status quo response includes lobbying congress, marching on D.C. "voting the bums out," suing in federal court, and more.  But the last 100 years have proven that none of these really work, and government continues to grow year in and year out."

"We recommend a different path, one advised by prominent founders such as Thomas Jefferson and James Madison - nullification," said Boldin.  Nullification, according to the Center, is the rightful remedy to an unconstitutional act, as it considers the recently-signed Patient Protection and Affordable Care Act to be. When a state nullifies a federal law, it is proclaiming that the law in question is void and inoperative, or non-effective, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

In partnership with WeRefuse.com, the Tenth Amendment Center has announced the release of their model legislation for such state-level action, the Federal Health Care Nullification Act.  The Act would codify in state law that the Patient Protection and Affordable Care Act "is not authorized by the Constitution of the United States...is hereby declared to be invalid...shall not be recognized...is specifically rejected...and shall be considered null and void and of no effect" within the boundaries of any state enacting it. It also mandates that it "shall be the duty" of the State's legislature "to adopt and enact any and all measures as may be necessary to prevent the enforcement."

The two groups have set an initial goal of 100,000 petition signers to support the state nullification legislation, and consider this the ultimate expression of the sovereignty of "We the People." "Nullification will allow Americans to stop the overreaching federal government now, not years from now," said Trevor Lyman of WeRefuse.com who popularized campaign "money bombs" in support of Ron Paul"s 2008 presidential run. "We can make our biggest waves in local politics.  Our state governments understand the impact of a vocal and irate minority, and they simply need to hear from us.  WeRefuse.com and The Tenth Amendment Center's Federal Health Care Nullification Act give our state legislators their marching orders," he continued.

According to both groups, the new health care reform legislation not only violates conservative principles by greatly enlarging federal power and control, but also is an affront to traditional progressive principles because it requires millions of people to give their money to an industry that many liberals revile, and interferes with the ability of states and local communities to enact their own health care programs as they see fit.

"It's time to remind the federal government that We the People are in charge and not the other way around," said Boldin. "Following the Constitution every issue, every time, without exceptions or excuses requires us to resist federal overreach and keeping our health care decisions where the Founders assured us that they'd be and where they belong...close to home."

About the Tenth Amendment Center:

The Tenth Amendment Center, a Los Angeles-based think tank founded in 2006, acts as a forum for education and activism in support of the 10th Amendment to the Constitution of the United States. http://www.tenthamendmentcenter.com/

About WeRefuse.com:

WeRefuse.com is an on online petition center where citizens of each state can express their demands for nullification of National Health Care and other over-reaching federal legislation.  http://www.WeRefuse.com

War on Seniors (May 31, 2010)

Senior citizens are by far the biggest losers in health reform, says John C. Goodman, President, CEO and the Kellye Wright Fellow with the National Center for Policy Analysis.

For example:

    * More than half the cost of health reform will be paid for by $523 billion of cuts in Medicare spending over the next 10 years.

    * Although there are some new benefits for seniors (mainly new drug coverage), the costs exceed the benefits by a factor of more than 10 to 1.

    * As many as 8.5 million of the 11 million seniors in Medicare Advantage (MA) plans may lose their coverage, according to Medicare's Chief Actuary.

    * Those lucky enough to retain their MA coverage will face steep cuts in benefits or hefty increases in premiums, or both.

In addition to these direct costs there are indirect costs, including new taxes on drugs and medical devices. Although these taxes don't single out senior citizens, they are the heaviest users of wheelchairs, crutches, artificial joints, pacemakers, etc., explains Goodman.

To make matters worse:

    * Severe rationing problems lie ahead, as 32 million newly insured people try to double their consumption of medical care under a reform bill that produces not one new doctor, nurse or other paramedical personnel.

    * Because many of the newly insured will be in private plans paying market rates, they will be more attractive to doctors than Medicare enrollees paying about 20 percent to 30 percent less.

So how did this happen? Aren't senior citizens supposed to be the most powerful voting bloc? Aren't they supposed to be represented by the all-powerful AARP?

Unfortunately for seniors (and indeed all Medicare enrollees), AARP sold out its own members. Just as the American Medical Association sold out doctors and the labor unions sold out their own members, AARP signed on to legislation that helps AARP but hurts the millions of people who AARP claims to represent, says Goodman.

Source: John C. Goodman, "War on Seniors," National Center for Policy Analysis, April 21, 2010.

Support the Texas State Board of Education Social Study Standards (May 24, 2010)

Recently the Texas State Board of Education (SBOE) released its approved social studies standards voted on in their March meeting.

The SBOE has done an outstanding job restoring historically accurate Texas social studies standards while maintaining the integrity and timetable of the curriculum standards review process. The board members reinforced a set of curriculum standards designed to promote academic success and a legitimate sense of pride in our country, our values, and our leaders, rather than shame America as leftwing radicals foster. The final vote to pass the standards was scheduled for May 21, 2010.   

Many distortions and myths have been told by liberal educrats about what is and what is not in the standards. 

In a blatant disregard for public input, a small vocal minority is now demanding that the SBOE throw out these standards and permit a group of college “experts” to create new standards in order to push their own radical left wing agenda.  They are petitioning a re-do of the past year of hard-work by members of the SBOE.  They want to silence public input from 4 public hearings on social studies, 30+ hours of public testimony and 14,000 emails.

These college and university “experts” (“faculty and researchers”) are demanding that they, rather than our elected SBOE members, make the decisions about what our Texas school children learn. Indeed they want to get rid of our citizen elected SBOE altogether.  However, it is educrats who have dumbed down our national public schools to such an extent that 42% of those entering college require remedial work. 

These intellectual elitists have thrown our American values to the wind, and they are the unelected review panel members responsible for the ludicrous proposals to remove Christmas, Albert Einstein, Neil Armstrong, Thomas Edison, religious heritage language, Independence Day, Veterans Day, and Christopher Columbus from Texas standards. These ridiculous changes were overruled by our elected SBOE members, their expert review panel, parents and taxpayers of Texas.  ALL significant historical facts were returned to our Texas standards.

One of the many beneficial additions to the curriculum is the study of American exceptionalism. Many think American exceptionalism is meant to devalue other nations; however, the term was given to us out of honor by Alexis de Tocqueville to point out the tremendous spirit of the American founders, American heroes, American entrepreneurs and most of all the American people who harness the pursuit of the American Dream.  There is no better way to instill a solemn pride in our nation’s youth than to teach the principles that make America unique.

We need to show our support of the SBOE and the fine work they have done in creating a strong and historically accurate set of social studies curriculum standards and let them know that we want them to finalize these standards when they reconvene in May.  By signing this petition you show support for the current Social Studies Standards approved in March, ask the Texas State Board of Education to pass the standards on May 21, 2010 and support an elected SBOE by the people of Texas.

Sign the petition to support the current social studies standards in May here    http://austinreteaparty.com/Signthepetition.aspx

Send a written response to the SBOE in support of the proposed standards and ask for them to be passed in May. Send emails to sboesupport@tea.state.tx.us .

Five Additional States Join Legal Challenge to Federal Health Care Law (May 10, 2010)

Bipartisan, multi-state challenge now includes 18 states

AUSTIN – Five additional states have announced that they will join the original 13 states’ legal challenge to the newly enacted federal health care legislation. Indiana, North Dakota, Mississippi, Nevada and Arizona will join Texas and 12 other states’ legal action, which was filed on March 23 in federal court.

“No public policy goal – no matter how important or well-intentioned – can be allowed to trample the protections and rights guaranteed by the U.S. Constitution,” Texas Attorney General Greg Abbott said. “The federal health care legislation violates our Constitution, imposes an unprecedented mandate on individual Texans, and will require the Texas taxpayers to spend billions of additional dollars on health care programs. The addition of five new states to our bipartisan legal challenge reflects broad, nationwide concern about the constitutionality of this sweeping and unprecedented federal legislation.”

Under the new federal health care law, for the first time in the nation’s history, the federal government is attempting to force individual Americans to enter into contracts and purchase services from private companies – in this case, insurance companies – or face a penalty. The state attorneys general are challenging this so-called individual mandate requirement, explaining that such an imposition on the American people exceeds Congress’ authority and violates Americans’ constitutional rights. Additionally, the states are challenging provisions of the new law that will impose dramatic Medicaid spending increases on the states – including $27 billion in mandatory spending increases in the State of Texas.

The eighteen-state coalition includes Texas, Florida, South Carolina, Nebraska, Pennsylvania, Louisiana, Washington, Colorado, Michigan, Utah, Alabama, South Dakota and Idaho.

Muslims Can Opt Out of Obamacare (April 12, 2010)

Isn't this nice. If you are of the Muslim religion, you don't have to give all the new Obamacare healthcare reform regulations and penalties another thought. Because the concept of being compelled to participate in such a healthcare program offends Islamic sensibilities, Muslims are specifically exempt.

As a matter of fact if you are Amish, American Indian or a Christian Scientist you do not need to participate or pay the taxes associated with healthcare reform. That means not having to be forced to buy healthcare insurance, not paying the taxes or the penalties if you don't get it. Nice!

Here is what the regulations say:

EXEMPTIONS FROM INDIVIDUAL RESPONSIBILITY REQUIREMENTS.

    —In the case of an individual who is seeking an exemption certificate under section 1311(d)(4)(H) from any requirement or penalty imposed by section 5000A, the following information:

In the case of an individual seeking exemption based on the individual’s status as a member of an exempt religious sect or division, as a member of a health care sharing ministry, as an Indian, or as an individual eligible for a hardship exemption, such information as the Secretary shall prescribe.”

Senate Bill, H.R. 3590, pages 273-274

There are several reasons why an individual could claim exemption, being a member of a religion that does not believe in insurance is one of them. Islam is one of those religions. Muslims believe that health insurance is “haraam”, or forbidden; because they liken the ambiguity and probability of insurance to gambling. This belief excludes them from any of the requirements, mandates, or penalties set forth in the bill.

This means that if you are Christian and abortion is against your religion tough luck.

If you are Jewish, tough luck as well.

Question: Why do these groups get a free ride? Why the largest religious block in North and South America i.e. Christians, is discriminated against like this? So much for equal protection under the law and the Establishment clause.

Obamacare Tab $2.5 Trillion, Not Measly $940 billion in CBO Guess (April 12, 2010)

By Bob Unruh

A new analysis of "Obamacare," as President Obama's plan effectively nationalizing health care has been dubbed, concludes the law will hit American households for more than $17 billion a year with just one of its "disasters," and the real overall cost likely will be $2.5 trillion, nearly triple the $940 billion estimate from the Congressional Budget Office.

According to the Heritage Foundation, the nation's most broadly supported public policy research institute, a single $17 billion-plus hit on American's wallets will come from a tax increase on anyone with investment income, the result of dollars being invested in creating new products, services and jobs.

Heritage Foundation analysts Karen Campbell and Guinevere Nell found the tax, at Obama's proposed rate of 2.9 percent, would reduce household disposable income by $17.3 billion a year, the analysis said.

The rate included in the new law is 3.8 percent, so "the actual effects are likely to be even more dramatic," the report warned.

The analysis examined the "Patients Protection and Affordability Act," passed by the House March 21, the sidecar reconciliation bill that originated in the House.

The two, the analysis said, "will have major ramifications for every man, woman and child in the United States."

"Between these two bills are countless provisions that grow federal spending, increase burdensome taxes, and put federal rules and regulations between Americans and control over their health care," the report said.

Many such analyses are just now being published, since much of the law wasn't available for review until shortly before the votes, and lawmakers themselves admitted they didn't know all of its contents.

The foundation said there are 10 "major ways" it will injure Americ...

The analysis concluded the estimate from the Congressional Budget Office that the plan will cost $940 billion from 2010 to 2019 is just plain wrong.

"The authors of this legislation took advantage … in crafting the language of the bill, employing several budgetary gimmicks to make it appear cheaper," the report said.

"These include omitting cuts to Medicare provider payment rates, known as the 'doc fix,' double-counting savings from Medicare and the CLASS Act, indexing benefits to general inflation rather than medical inflation, and delaying the expensive provisions of the bill.

"When these costs are accounted for, the new law is more likely to cost closer to $2.5 trillion," the report said. "Such levels of spending will not only negate any projected deficit reduction but increase the federal deficit further than would prior law.

The report also warned that efforts to address the cost of health care only address the symptoms of price hikes, and growth will be stymied by government fines for employees not covered by "adequate" policies.

Further, the government now not only will "define a required benefits package" but will "dictate the prices that insurers set."

"The bill also opens the door for a de facto public option by creating government-sponsored national health plans to compete against private health plans in the health insurance exchanges the states are required to establish," the report said.

It also extends Medicaid, a financially unsuccessful government plan, to "all Americans who fall below 133 percent of the federal poverty level."

"According to CBO, of the 32 million newly insured in 2019, half will receive their coverage from Medicaid," the report said.

"As it stands, Medicaid is a low-quality, poorly functioning program that fails to meet the needs of the Americans it serves. In most states, Medicaid beneficiaries have great difficulty finding a doctor who will treat them at the program's low reimbursement rates and are more likely than the uninsured to rely on emergency rooms for care," it said.

Other problems "Obamacare" presents include dumping huge new financial obligations on states that cannot balance their budgets – with costs estimated at almost $10 billion; failing to address the expected 2016 insolvency of Medicare; and creating an inequity among Americans for insurance programs actually available.

The Heritage analysis also concludes a major element of the law is unconstitutional.

"The new law requires all Americans to purchase health insurance or pay a penalty. This represents an unprecedented extension of congressional power – never before has the federal government required Americans to purchase a good or service as stipulation of being a lawful citizen," the analysis said.

The structure of fines also creates an incentive for employers to avoid hiring workers from low-income families, "hurting those who need jobs the most."

"These disasters are only the beginning of the vast effects the president's health acre overhaul will have on the U.S.," the report warned in its conclusion.

Walgreens to Stop Taking Medicare Patients (March 22, 2010)

By Janet I. Tu

Effective April 16, Walgreens drugstores across Washington State won't take any new Medicaid patients, saying that filling their prescriptions is a money-losing proposition — the latest development in an ongoing dispute over Medicaid reimbursement.

The company, which operates 121 stores in the state, will continue filling Medicaid prescriptions for current patients.

In a news release, Walgreens said its decision to not take new Medicaid patients stemmed from a "continued reduction in reimbursement" under the state's Medicaid program, which reimburses it at less than the break-even point for 95 percent of brand-name medications dispensed to Medicaid patents.

Walgreens follows Bartell Drugs, which stopped taking new Medicaid patients last month at all 57 of its stores in Washington, though it still fills Medicaid prescriptions for existing customers at all but 15 of those stores.

Doug Porter, the state's director of Medicaid, said Medicaid recipients should be able to readily find another pharmacy because "we have many more pharmacy providers in our network than we need" for the state's 1 million Medicaid clients.

Along with Walgreens and Bartell, the Ritzville Drug Company in Adams County announced in November that it would stop participating in Medicaid.

Fred Meyer and Safeway said their pharmacies would continue to serve existing Medicaid patients and to take new ones, though both expressed concern that the reimbursement rate is too low for pharmacies to make a profit.

The amount private insurers and Medicaid pay pharmacies for prescriptions isn't the actual cost of those drugs but rather is based on what's called the drug's estimated average wholesale price. But that figure is more like the sticker price on a car than its actual wholesale cost.

Washington was reimbursing pharmacies 86 percent of a drug's average wholesale price until July, when it began paying them just 84 percent. Pharmacies weren't happy about that.

Then in September came another blow. The average wholesale price is calculated by a private company, which was accused in a Massachusetts lawsuit of fraudulently inflating its figures. The company did not admit wrongdoing but agreed in a court settlement to ratchet its figures down by about 4 percent.

That agreement took effect in September — and prompted a lawsuit by a group of pharmacies and trade associations that said Washington state didn't follow federal law in setting its reimbursement rate, and that that rate is too low. The lawsuit is pending.

"Washington State Medicaid is now reimbursing pharmacies less than their cost of participation," said Jeff Rochon, CEO of the Washington State Pharmacy Association.

Pharmacies that continue to fill Medicaid prescriptions at the current state reimbursement rate are "at risk of putting themselves out of business altogether," he said.

First Washington State, is Texas next?

[Information from Seattle Times archives was used in this report.]

Obama Now Selling Judgeships for Health Care Votes? (March 15, 2010)

by John McCormack

Barack Obama hosted ten House Democrats who voted against the health care bill in November at the White House; he's obviously trying to persuade them to switch their votes to yes. One of the ten is Jim Matheson of Utah. The White House just sent out a press release announcing that today President Obama nominated Matheson's brother Scott M. Matheson, Jr. to the United States Court of Appeals for the Tenth Circuit.

“Scott Matheson is a distinguished candidate for the Tenth Circuit court,” President Obama said. “Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering. I am honored to nominate this lifelong Utahn to the federal bench.”

Scott M. Matheson, Jr.: Nominee for the United States Court of Appeals for the Tenth Circuit

Scott M. Matheson currently holds the Hugh B. Brown Presidential Endowed Chair at the S.J. Quinney College of Law, University of Utah, where he has been a member of the faculty since 1985. He served as Dean of the Law School from 1998 to 2006. He also taught First Amendment Law at Harvard University’s Kennedy School of Government from 1989 to 1990.

While on public service leave from the University of Utah from 1993 to 1997, Matheson served as United States Attorney for the District of Utah. In 2007, he was appointed by Governor Jon Huntsman to chair the Utah Mine Safety Commission. He also worked as a Deputy County Attorney for Salt Lake County from 1988 to 1989. Prior to joining the University faculty, Matheson was an associate attorney from 1981 to 1985 at Williams & Connolly LLP in Washington, D.C.

Matheson was born and raised in Utah and is a sixth generation Utahn. He received an A.B. from Stanford University in 1975, an M.A. from Oxford University, where he was a Rhodes Scholar, and a J.D. from Yale Law School in 1980.

So, Scott Matheson appears to have the credentials to be a judge, but was his nomination used to buy off his brother's vote?

Consider Congressman Matheson's record on the health care bill. He voted against the bill in the Energy and Commerce Committee back in July and again when it passed the House in November. But now he's "undecided" on ramming the bill through Congress. "The Congressman is looking for development of bipartisan consensus," Matheson's press secretary Alyson Heyrend wrote to THE WEEKLY STANDARD on February 22. "It’s too early to know if that will occur." Asked if one could infer that if no Republican votes in favor of the bill (i.e. if a bipartisan consensus is not reached) then Rep. Matheson would vote no, Heyrend replied: "I would not infer anything. I’d wait to see what develops, starting with the health care summit on Thursday."

The timing of this nomination looks suspicious, especially in light Democratic Congressman Joe Sestak's claim that he was offered a federal job not to run aga.... Many speculated that Sestak, a former admiral, was offered the Secretary of the Navy job.

Democrats Mislead on Health Care 'Reconciliation (March 15, 2010)

by Tim McCarron

Americans overwhelmingly oppose "reconciliation" to ram through government-run health care - but Democrats don't care

Democrats Mislead on Health Care 'Reconciliation'March 4, 2010 - President Barack Obama has claimed that most Americans don't care about the "process" of getting health care passed. He's wrong. A Gallup Poll on February 25, revealed that 52% of Americans oppose using reconciliation to ram through socialized medicine.

Americans care about the legislation - they don't want it - and they care about how Democrats are ramming it down their throats. (In addition, a CNN poll on February 26 revealed that 56% of Americans say the federal government poses an immediate threat to individual rights and freedom.)

Harry "Pinocchio" Reid

During the Health Care Summit last week, Senate Majority Leader Harry Reid (D-NV) denied that Democrats have talked about using reconciliation to pass the government takeover of our health care system.

Of course, Reid isn't telling the truth. Just six days before, he was interviewed by a Nevada TV station and admitted he was willing to use reconciliation to force socialist medicine on us.

Way back in September 2009, Reid warned Republicans that he would use reconciliation to pass socialist medicine. He and his colleagues have been constantly warning Republicans that they'd use reconciliation if they had to.

In early February, Republican turncoat Arlen Specter (D-PA) urged his fellow Democrats to use reconciliation to ram through ObamaCare.

Speaker of the House Nancy Pelosi (D-CA) was on ABC "This Week" on Friday and told a reporter that Congressmen should show "courage" in supporting ObamaCare - even if it threatened their future in Congress.

According to Pelosi: "We're not here just to self-perpetuate our service in Congress. We're here to do the job for the American people."

How many Democrats are willing to walk the plank for ObamaCare?

What Is Reconciliation - And Why Should You Care?

Reconciliation has been used in the past to deal with budgetary issues, but it has never been used to ram through such an unpopular and wide-reaching piece of legislation.

It is a process created in 1974 by the Budget Act, which is used to pass tax cuts and deficit reductions. It is supposed to be a tool Congress uses to balance the budget - not to jam through government-run health care against the wishes of the American people.

Reconciliation is used by the leadership to avoid the usual rules of the Senate or the House. Under a reconciliation bill, no filibusters are permitted and it takes only 51 votes to shut down the process and pass a bill.

Senator Robert Byrd (D-WV) is opposed to using reconciliation. He created a rule that permits Senators to remove extraneous provisions in reconciliation legislation unless those provisions directly relate to changes in levels of federal spending, taxes or debt.

Numerous Democrats have expressed opposition to using reconciliation to ram through socialist medicine. Senator Blanche Lincoln (AR); Sen. Byron Dorgan (ND); Sen. Mary Landrieu (LA); Sen. Jay Rockefeller (WV); Sen. Evan Bayh (IN) and others have voiced opposition to reconciliation on ObamaCare.

Senator Harry Reid, however, is ignoring his fellow Democrats and lying about his plans to use reconciliation to get ObamaCare imposed on all Americans.

TAKE ACTION: Contact your U.S. Senators and Representative and tell them not to use reconciliation to ram through government-run health care. Ask them to vote NO on any plan that nationalizes our health care system.

Generic Drug Plans Focus on Wrong Problem (March 15, 2010)

By John David Powell

The Obama Administration plan to put new generic drugs on the street faster is another example of how Washington healthcare reformers just don’t get it. While it is true that more generic drugs will reduce healthcare costs, it also is true that health risks will increases for many individuals sensitive to even the slightest changes in their medications.

The Obama drug plan imposes $10 billion in fees over ten years on the brand-name pharmaceutical industry, to be parceled out among big drug makers to eliminate the so-called donut hole, or gap, in Medicare prescription drug coverage. The idea is to help patients continue taking their original drugs instead of switching to cheaper generic versions, or going off their meds entirely.

The plan’s second part prohibits pay-for-delay deals, where brand-name drug makers pay generic drug companies to drop patent challenges. Proponents of this idea say pay-for-delay costs Americans up to $3.5 billion each year.

Generic drugs account for more than 70 percent of all prescriptions filled each year in the U.S. at a savings to patients of about $8 billion a year. A different, and insidious, cost to patients comes from the leeway given by the Food and Drug Administration in the manufacture of generic drugs.

The FDA requires a generic drug to be the same as the original in dosage, safety, strength, performance, intended use, and the way it’s taken. The rules, however, allow for a 20-percent variation in the active ingredient. In other words, the good stuff may be 80 percent less than, or 20 percent more than, what’s in the real deal. This broad range may work for antibiotics, but it creates nasty reactions among patients with heightened sensitivities to their medications.

Internet discussion boards teem with anecdotal evidence. One person tells how his symptoms went away during the year he took the real drug, but returned after three months on the generic version, forcing him to go back to the original that cost seven times more, but with “tremendous results.”

A mother describes how her 11-year- old son, who takes several generic anti-seizure drugs, received a different generic for one prescription that made him extremely sedated and “drool like a faucet,” which put him at risk for drowning in his own saliva. She calls this another example of why the FDA should tighten its regulations and monitoring of generic drugs.

I don’t have to go to the Internet to know about the dirty little secret of generic drugs. My wife has temporal lobe epilepsy, in addition to being very sensitive to generics. We knew generic over-the-counter drugs may include inactive ingredients that cause bad side effects, but we assumed generic drugs were the same as real ones. We discovered the difference when she received a generic anti-seizure drug because our insurance company wouldn’t pay for the original. The doctor and pharmacist insisted there was no difference, but a quick search of epilepsy forums turned up person after person with horror stories similar to hers.

Doctors and federal agencies many times require more than a patient’s story, which makes you wonder why the people charged with watching out for our health apparently ignore a study by Giuseppe Borheini published in the 2003 issue of Clinical Therapeutics (http://www.ncbi.nlm.nih.gov/pubmed/12860486?dopt=Abstract). Borgheini’s team looked at available data going back to 1975 that compared the effectiveness of brand-name psychoactive drugs and their generic counterparts.

One of Borgheini’s more disturbing discoveries was of a study that showed plasma levels of phenytoin were 31 percent lower after a switch from the original anticonvulsant Dilantin. He also learned that when the FDA investigated the sudden recurrence of seizures on the generic valproic acid substituted for Depakote, it found a difference in how the drug gets to where it supposed to go.

Other data showed statistically significant differences in favor of Valium over the generic diazepam in terms of the body’s absorption and distribution.

Borgheini’s research led him to conclude the FDA’s “ essential-similarity requirement should be extended to include more rigorous analyses of tolerability and efficacy in actual patients as well as in healthy subjects.”

This would mean the FDA would have to reconsider its formula variation requirement, demand realistic trials of different formulations, and make sure the active ingredient in the generic drug delivers its bullet to the same target as the original drug.

The FDA will say, however, that it doesn’t have the resources to guarantee generic drugs do no harm. FDA Commissioner Margaret Hamburg recently told attendees of the annual meeting of the Generic Pharmaceutical Association her agency needs more people to review the 2,000 applications for new generic drugs, a number that’s doubled in five years.

Her plan is not to take more time to ensure a generic drug doesn’t harm the patient. No, her plan is to charge generic manufacturers an application fee that will fund additional staff to push out more potentially harmful drugs as part of the Obama Administration’s effort to make medication affordable to everyone, regardless of the cost to health.

Editor's Note: John David Powell is an award-winning columnist and writer.

Obama: Bipartisan Health Deal May Not be Possible (March 8, 2010)

By Ricardo Alonso-Zaldivar and Jennifer Loven

After a day of debate and disagreement, President Barack Obama concluded his recent unprecedented live talkfest on health care with the bleak assessment that accord between Democrats and Republicans may not be possible. He rejected Republican preferences for seeking a step-by-step solution or simply starting over.

Obama strongly suggested that Democrats will try to pass a sweeping overhaul without GOP support, by using controversial Senate budget rules that would disallow filibusters. And then, he said, this fall's elections would write the verdict on who was right.

"We cannot have another yearlong debate about this," Obama said at the end of a 7 1/2-hour marathon policy session.

Neither side gave much ground, sticking mostly to familiar arguments and talking points. The president urged Republicans to "do a little soul searching" but said majority Democrats would decide quickly how to move forward on a priority that has eluded leaders for half a century.

"This will take courage to do," House Speaker Nancy Pelosi, D-Calif. said in her own closing speech. "But we will get it done."

With the conversation veering between mind-numbing detail and flaring tempers, Obama and his Democratic allies clashed with congressional Republicans over the right prescription for the nation's broken health care system. Though there was much talk of agreement, each side held onto long-entrenched positions that left them far apart. Democrats seek a kind of broad remake; Republicans favor much more modest changes.

"We have a very difficult gap to bridge here," said Rep. Eric Cantor, the No. 2 House Republican. "We just can't afford this. That's the ultimate problem."

With Cantor sitting in front of a giant stack of nearly 2,400 pages representing the Democrats' Senate-passed bill, Obama said cost is a legitimate question, but he took Cantor and other Republicans to task for using political shorthand and props "that prevent us from having a conversation."

And so it went, hour after hour at Blair House, just across Pennsylvania Avenue from the White House.

It was essentially a condensed, one-day version of the entire past year of debate over the nation's health care crisis, with all its heat, complexity and detail, and a crash course in the partisan divide.

Obama and other Democrats argued that a broad overhaul is imperative for the nation's future economic vitality. The president cast health care as "one of the biggest drags on our economy," tying his top domestic priority to an issue that's even more pressing to many Americans.

"This is the last chance, as far as I'm concerned," Rep. Louise Slaughter, D-N.Y.

Obama lamented partisan bickering that has resulted in a stalemate. "Politics I think ended up trumping practical common sense," he said.

And yet, even as he pleaded for cooperation — "actually a discussion, and not just us trading talking points" — he insisted on a number of Democratic points and acknowledged agreement may not be possible, particularly on the trickiest area of extending coverage to the uninsured and preventing insurers from denying coverage to those with pre-existing conditions. "I don't know frankly whether we can close that gap," he said as he wrapped things up.

With such hardened positions well staked out before the meeting, the president and his Democratic allies prepared to move on alone — a gamble with political risks no matter how they do that.

The option preferred by the White House and progressives in the Democratic caucus is the reconciliation route. GOP Sen. Lamar Alexander asked Democrats to swear it off, while Senate Majority Leader Harry Reid, D-Nev., defended it. Obama weighed in with gentle chiding, asking both sides to focus on substance and worry about process later — a plea he made repeatedly throughout the day with little success.

A USA Today/Gallup survey released Thursday found Americans tilt 49-42 against Democrats forging ahead by themselves without any GOP support. Opposition was even stronger to the idea of Senate Democrats using the special budget rules, with 52 percent opposed and 39 percent in favor.

A second alternative for Obama and his party is going smaller, with a modest bill that would merely smooth some of the rough edges from the current system. A month after the Massachusetts election that cost Democrats their Senate supermajority and threw the health legislation in doubt, the White House has developed its own slimmed-down health care proposal so the president will know what the impact would be if he chooses that route, according to a Democratic official familiar with the discussions. That official could not provide details, but Democrats have looked at approaches including expanding Medicaid and allowing children to stay on their parents' health plans until around age 26.

Obama himself hinted at a Democrats-only strategy. When asked by reporters as he walked to the summit site if he had a Plan B, he responded: "I've always got plans."

Many lawmakers and Obama stressed areas of agreement, including items such as allowing parents to keep young adult children on their health plans into their 20s, cutting fraud and waste and ensuring that sick people aren't dropped by insurance companies. But such items occupy the edges of reform.

Indeed, any skepticism about reaching broad consensus was vindicated as soon as the first Republican spoke — in opposition to the mammoth bills that have passed the House and Senate. Alexander, of Tennessee, said Congress and the administration should start over and take small steps, including medical malpractice reform, high-risk insurance pools, a way to allow Americans to shop out of state for lower-cost plans and an expansion of health savings accounts.

"We believe we have a better idea," Alexander said. "Our views represent the views of a great number of American people."

Disagreements were not always expressed diplomatically.

Alexander challenged Obama's claim that insurance premiums would fall under the Democratic legislation. "You're wrong," he said. Responded Obama: "I'm pretty certain I'm not wrong."

As with much in the complicated health care debate, both sides had a point. The Congressional Budget Office says average premiums for people buying insurance individually would be 10 to 13 percent higher in 2016 under the Senate legislation, as Alexander said. But the policies would cover more medical services, and around half of people could get government subsidies to defray the extra costs.

Obama and his 2008 GOP opponent for the presidency, Sen. John McCain of Arizona, had a barbed exchange. McCain complained at length about what he said was a backdoor process to produce the original bills that resulted in favors for special interests and carve-outs for certain states.

"We're not campaigning anymore. The election's over," responded a clearly irritated Obama.

"I'm reminded of that every day," McCain shot back, adding that "the American people care about what we did and how we did it."

Said Obama: "We can have a debate about process or we can have a debate about how we're actually going to help the American people at this point. And I think that's — the latter debate is the one that they care about a little bit more."

Generally, polls show Americans want solutions to the problems of high medical costs, eroding access to coverage and uneven quality. But they are split over the Democrats' sweeping legislation, with its $1 trillion, 10-year price tag and many complex provisions, including some that wouldn't take effect for eight years.

The Democratic bills would require most Americans to get health insurance, while providing subsidies for many in the form of a new tax credit. The Democrats would set up a competitive insurance market for small businesses and people buying coverage on their own. Democrats also would make a host of other changes, which include addressing a coverage gap in the Medicare prescription benefit and setting up a new long-term-care insurance program. Their plan would be paid for through a mix of Medicare cuts and tax increases.

"Not only are lawmakers polarized, the parties' constituencies are far apart," said Robert Blendon, a Harvard University professor who follows public opinion trends on health care. "The president is going to use it as a launching pad for what will be the last effort to get a big bill passed. He will say that he tried to get a bipartisan compromise and it wasn't possible."

The Blair House setting wasn't grand, or even particularly comfortable. About 40 senators, representatives and administration officials were crowded shoulder-to-shoulder around a hollow square table, perched for the six-hour marathon on wooden chairs with thin cushions. Coffee breaks were ruled out, so the only pause in the action came during lunch.

C-SPAN carried complete coverage, while news operations from cable networks to public broadcasting were making it the focus of their day.

Leaving the site during a lunch break, Obama was asked by waiting reporters if he thought the debate was engendering a lot of interest across the country.

"I don't know if it's interesting watching it on TV," he responded.

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