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Unemployment, Regulatory Reform Top NFIB Tennessee’s Leglislative Agenda

Press Release from National Federation of Independent Businesses; Jan. 17, 2012:

Tennessee 2012 Proactive Legislative Agenda

Unemployment Reform – Small business overwhelmingly supports substantive reforms to our state’s administrative review process for unemployment claims. Specifically, NFIB members support a stronger misconduct definition that addresses chronic absenteeism and theft, as well as a defined work search requirement for recertifying beneficiaries. Importantly, employers are subject to a costly 0.6% unemployment tax surcharge until our Unemployment Trust Fund reaches $650 million, so every effort to reduce fraud and abuse and help workers return to work sooner will stimulate hiring and investment.

Regulatory reform – Our members support greater transparency, accountability and involvement in the regulatory process. We support a requirement for certain boards to enable licensees to receive notification via e-mail of the overseeing board’s proposed agenda. Small businesses would like greater ease and opportunity to offer critical feedback of proposed fee increases and rules that directly impact their ability to grow their businesses and make long-term plans. Too often under the current process, they learn of new rules or fee increases after their adoption. In addition, we will support efforts to repeal unnecessary licensure procedures and protectionist laws and rules.

Budget and Tax Reform – Our members appreciate the improved budget process, which includes the ending of the so-called ‘technical corrections” process, and our state’s conservative fiscal approach. We strongly support repeal/phase out of the state’s onerous inheritance tax, which hurts multi-generational businesses and farmers. We support the restoration of vendors’ compensation, which prior to 2000 allowed businesses to retain a percentage of sales taxes collected as compensation for incurred costs and time. We will continue to review proposals that hinder our members’ ability to own, operate and grow their businesses.

Tort reform – We are evaluating specific tort reform proposals that protect employers from excessive litigation costs and liability exposure. We will communicate our positions on bills as they are introduced this session.

Workers’ Comp – Our members strongly support the administration’s effort to identify workers’ comp challenges that are inhibiting job growth and putting Tennessee significantly behind neighboring states. Tennessee employers and employees complain that the time to adjudicate claims is lengthy and delays return to work and payment of claims. According to the Oregon Department of Labor’s 2010 study of workers’ comp costs by state, Tennessee ranks No. 31, well behind Arkansas (No. 2) and Virginia (No. 4) and trailing Mississippi (No. 20), Georgia (No. 27) and North Carolina (No. 28). We are studying various proposals, including moving to a commission-based review system. Our members strongly support addressing decades of adverse case law and enacting a stronger workplace injury definition, and look forward to advancing meaningful reform in the months and years ahead.

Defeat Bad Business Bills – We expect the usual introduction of bad business bills, including well intended but costly mandates, misguided union efforts and similar proposals that inhibit free enterprise in Tennessee. We will continue to inform elected officials about the detrimental effects of these efforts.

SCORE to Score TN Teacher Evaluation Process

Citing several months of complaints from teachers about new state-mandated evaluations, Gov. Bill Haslam is calling in a third-party education advocate to sort out the new system.

The State Collaborative on Reforming Education has agreed to independently grade the state’s new evaluation process and report back by this summer with feedback and recommendations to be used going into the 2012-13 school year.

“Any time you implement something that’s this comprehensive, I think if you don’t consistently re-evaluate it, you’re not doing your job,” Haslam told reporters after a press conference announcing the partnership at the Capitol Building Wednesday.

“We knew this is going to be a huge rollout, and we knew there would be some people that didn’t necessarily take to it very well, and we knew that we would be evaluating the evaluations,” he said.

SCORE has been involved in several Tennessee education initiatives, including advocating for data-driven teacher evaluations. The nonprofit, bipartisan organization is run by Jamie Woodson, a former Republican senator from Knoxville who bowed out this year to become the group’s executive director. She took over for former U.S. Senate Majority Leader Bill Frist, also a Republican, who launched the organization in 2009.

School districts across the state began using the new annual evaluations this schools year, which include grading teachers based on a mix of student test scores and classroom evaluations and scoring them on a five-point scale. Previously, teachers were heavily evaluated in the three years prior to earning tenure, sporadically after that point.

“The implementation and execution of these reform efforts are truly where the rubber meets the road,” said Woodson, who said SCORE will facilitate roundtable discussions with teachers across the state in addition to soliciting feedback online. “Critical to our mission and to success of this effort is the opportunity for feedback and input from educators and community members throughout the state.”

Haslam said SCORE’s advocacy work for a teacher evaluation system is an asset, not a bias.

“It’s not a question of should we have (the teacher evaluation system). It’s a question of, is the one that we have working well, and I think that’s what we’ve tasked (SCORE) with,” Haslam told reporters.

House Democratic Leader Craig Fitzhugh applauded the governor’s call to study the new evaluation, but said he should also put the system on pause.

“The Legislature rushed this evaluation process, and in many situations it has been to the detriment of Tennessee’s teachers and students,” wrote Fitzhugh, D-Ripley, in an emailed statement. “I hope that the governor and the Legislature agree that we need to delay the evaluations until a thorough bi-partisan review is complete.”

While SCORE picks through the evaluation process, Haslam said he wants the Legislature to avoid passing bills that would change the current process, saying any adjustments should go through the Board of Education.

Halams has also, in recent weeks, asked the Legislature to take a pass on legislation that would allow students to transfer to a public, charter or private school using vouchers while a task force — which includes Woodson — studies that concept.

TN’s ‘Achievement’ Superintendent Welcomes Accountability

Chris Barbic used to belittle government bureaucrats running public education systems. In his view, “they didn’t know what they were doing.”

Now, as fate would have it, the Vanderbilt graduate and acclaimed Texas charter-school founder has become one of them. Or rather, he’s getting an opportunity to prove he can succeed where others have come up woefully short.

Selected by Gov. Bill Haslam and Education Commissioner Kevin Huffman to become the first superintendent for Tennessee’s so-called “Achievement School District,” Barbic, 41, says he feels in some ways now like he’s “joined the dark side.”

Another way he looks at it, though, is that he’s been issued an education reformer’s challenge of a lifetime — the chance to apply his theories, philosophy, experience and knowledge on a larger and more politically significant scale than anything he’s done before.

The pitfalls are great, but the potential rewards profound. Barbic’s job is nothing short of figuring out how to replace academic despair and defeatism with success, excellence and optimism in Tennessee’s most dismally performing schools.

Tennessee’s Achievement School District was born out of the state’s federal Race to the Top application in which state officials promised to implement a bundle of reforms favored by the Obama administration. Tennessee was one of two states to win the first wave of awards, taking home $501 million in federal funding to apply toward boosting educational outcomes in the Volunteer State.

Right now, the district is helping run four schools in Memphis and one in Hamilton County, and holding a looser grip on operations in eight other schools in Nashville, Knoxville and Jackson.

Barbic began his teaching career with the Teach for America alternative certification program alongside Huffman — the man he credits for convincing him to accept a government job.

TNReport talked with Barbic about his vision for the Achievement School District, how he plans to cope with bureaucratic and political obstacles and what he believes the criteria ought to be for holding him accountable:

(Editor’s note: the following interview has been edited for brevity and clarity.)

TNREPORT: What do you tell parents who wonder what it means for their child to be in the Achievement School District?

Barbic: Hopefully what it means is a better quality of education. And that’s what we’re committed to doing. And we’re committed to doing it in a way that’s going to be the least disruptive, with the least amount of turmoil, so that everyone in the building can focus on their child and not on all the other stuff that tend to get focused on. And that we’re going to do this thoughtfully and, to the extent possible, in partnership with the community and the school district…I think what we’re here to do is to work in partnership as best we can with the players in the community to create the best possible school we can. Because at the end of the day, let’s face it: We’re all going to be gone, we’re going to do other things, we’re going to move on, and it’s going to be the parents in that community that are going to have to own that school.

TNREPORT: Can you talk about what kind of role your charter-school background will play?

BARBIC: I think what I’ve come to realize is that this is less about traditional schools and charter schools, it’s more about how do we create more high performance schools, and how we do make sure that the below performing schools, whether charter or traditional, that we’re doing something to turn them around. And then the most extreme cases, if we have to, closing them and then restarting them with a new team and a new group of people. So I’m actually kind of agnostic on charter/non-charter. What I really care about is performance and making sure that every single kid in Tennessee has access to a great education, and so I think that’s really what the achievement school district is about.

TNREPORT: What would it mean for the ASD if the U.S. Department of Education accepts Tennessee’s waiver and exempts the state from the No Child Left Behind law?

BARBIC: It’s interesting because, it’s gotten to the point now where because the metrics in (the law), as they get closer to 2014, 2015, are so high, we would go from 13 schools to 38 schools to 800 schools in three years. … Obviously, we are not now and never will be able to handle that sort of capacity, so I think what the waiver does is it just better defines what is an ambitious target, and we want the targets to fit the school that everyone in the state is focused on, the First to the Top goals. We feel like those are ambitious goals but also practical goals, and if we can get to those goals then we’ll feel like we’ve moved the way we need to in the state of Tennessee to be where we want to be. So I think that’s important that people need to understand, that this is not about watering things down or going back to a time of five or 10 years ago. This is about, let’s create a realistic measure, an ambitious measure, but let’s have everybody focused on one goal post.

TNREPORT: How do you do that?

BARBIC: Changing education, as much as we’d like to think it’s about the programs, it’s not about programs. It’s about people. If you look at a new school budget, 80 percent of the budget is people. … So we need to evaluate who’s there, keep the great people and then figure out what we’re going to do to the folks that maybe need to move on to another school or to another profession. Make sure we’re recruiting and bringing in the best possible people we can find. Once you have that in place then you need to give the leaders some freedom and some flexibility. If the leader needs time to go over their schedule, if they want to extend the school day, they need to be able to do that. If they want to extend the school year they need to be able to do that. … And then, it’s accountability. It’s making sure that we are truly holding people and schools accountable based on data. We’ve tracked TVAAS data in the state for 20 years. It hadn’t been used at all to make decisions around what we’re doing with the people. I think it’s great to collect data, but if you’re not actually using the data to drive the decisions about what you’re doing in the school, then it’s kind of an exercise in futility.

TNREPORT: How do you plan on navigating the Legislature and state bureaucracy?

BARBIC: I don’t want to be naïve about the politics, but I wasn’t brought here to do that. I was brought here to be on the ground and work in schools. The governor, the commissioner, the Legislature, they can do that, and I feel like there’s the right leadership there with the right values and the right amount of courage to provide the cover that we’re going to need to do this work. This is going to be hard work, and we’re not always going to get it right. We’re going to make mistakes. Anytime you’re doing something new, it’s not going to be perfect. I feel like when the glass breaks and we make a mistake, as long as we own it and move on and learn from it we’re going to be okay.

TNREPORT: What gauge do you want used to hold you accountable?

BARBIC: Some of these schools haven’t been successful in decades, and so I think to expect, in one year, this is all going to change, is optimistic, but I think that’s a little naïve. I do think we need to be showing progress, and we need to be making solid gains, 10-point plus gains, each year. I mentioned Louisiana and New Orleans earlier in the conversation because that’s kind of what we were modeled after. If you look at the schools there — which before you could argue were some of the worst schools in the country — you’re seeing over the last four years gains in those schools in New Orleans that were higher than gains being made in the rest of the state. You’re seeing over the four-year stretch, 20-point proficiency gains for poor African-American kids in the schools. And I think those are the sort of gains we need to see in the Achievement School District. The absolute achievement may be a little different because kids are showing up at a different point, but the growth should be as good if not better than growth happening across the state.

TNREPORT: You expect these schools will perform at the same level as the best in the district?

BARBIC: Take Hamilton High School in Memphis. Hamilton High School in three years, if we’re where I want us to be, in three years Hamilton High School, when you look at the list of Memphis City Schools, top to bottom in terms of student achievement and you take out the optional schools where kids test in, Hamilton High School should be right up there at the top of the list with other schools in Memphis City Schools. And hopefully in five years it’s competing at the same level as some of the best schools in the state. And that’s the goal we’re going to set and the goal we’re going to work towards. And in three years if we haven’t gotten that done, then I shouldn’t be here. I think the ultimate accountability is, I shouldn’t have a job.

TNREPORT: How do you go about identifying the best teachers in the classrooms?

BARBIC: The evaluations are going to be key because it’s going to tell us who’s great and who’s not. And right now I’m not sure we can really, with confidence, say we know who those teachers are. I think that’s one. And, obviously, for those teachers who are knocking it out of the park, we want to keep them and make sure that they stay. And we also want to attract them, maybe they’re working at other schools, to come and be here. So that’s first. I think for folks who aren’t performing, the legislation is pretty clear that we have some flexibility there to make sure that we are getting the right people in the building. Without control over that, this becomes pretty much an uphill battle, so I think having that flexibility could be important. …My job is to make sure that we have the best possible people in the school, and we’re going to do that. And like I said, we’re going to do it judiciously. But if we don’t get that part right, the rest of it’s never going to happen.

TNREPORT: How are you reaching out to teachers?

BARBIC: The first thing that we’re doing is we want to get into the schools, and really see what’s going on like I mentioned before. And I think as we develop a gameplan for what it is we’re going to be doing, we want to make sure we’re communicating that to everybody, to the teachers, to the students, to the parents. We’re going to be starting some community forums, probably at the end of September, with folks in the community meeting with leaders in the community as…political leaders, faith leaders in the philanthropy community, folks that have traditionally been involved in education and education reform, and all the stakeholders are going to be an important part of making this happen. I think the key is, the goal is, to communicate what it is we’re doing. I think, I’m not naïve enough to think that everyone is going to embrace what it is we’re going to be doing, that’s not the goal.

But the goal is to be open, to have an honest conversation about what’s happening, for the community to – for there not to be any surprises for anyone when we do decide what it is we’re going to do so that everyone is fully aware, and I think that as long as we’re open, and there’s some transparency in the process, and we’ve got a good rationale for what it is we’re doing, that’s my goal. At the end of the day we’ll have as many supporters as we can. I think the key to building support is to deliver results. We can talk all we want but if we’re not actually getting it done, then it doesn’t really matter. So I think on the front end, it is going to require a little bit of a leap of faith from everybody, but after a year or two into this, if we haven’t gotten the community behind us because we haven’t delivered the results, then that’s on us. And we need to be held accountable for that.

More Education Reform Discussion on Governor’s Summer Agenda

Public school classrooms and legislative hearing rooms are always a lot quieter in the summer. But just because students and lawmakers are on break doesn’t mean discussions about education policy come to a halt.

Gov. Bill Haslam has said he’ll be spending time in June discussing further changes in education. Among the topics that may come up are proposals to extend the number of days students attend school each year, the number of hours in each school day and the most effective means of paying educators to attract and retain the best teachers.

Haslam envisions an all-encompassing look at education, even after the dramatic education reform efforts in this year’s session of the Tennessee General Assembly.

“I think what we have to do with education is really take a whole fresh look at everything, from how long students go to school to how we compensate teachers so we make certain we’re rewarding them for a great job,” Haslam said.

“This session had a lot of discussion about teachers and tenure and looking at collective bargaining. I think the next piece we need to discuss, if we’re really going to have a great education system, is: How do we attract and keep the very best people in teaching?”

For all the drama of changes in education this year, legislative measures on teacher tenure, charter schools and collective bargaining might simply be setting the table for further action.

Change agents Kevin Huffman, the new commissioner of education, and Chris Barbic, who will head Tennessee’s special school district for failing schools, are just now settling into their new jobs. Both came from the innovative Teach for America program. Huffman recently told the editorial board of The Tennessean that the school calendar in Tennessee is “not based on the modern world.” The state currently requires 180 days of school with 6.5 hours of instruction each day.

State Sen. Jamie Woodson, R-Knoxville, has relinquished her role as a legislator to head former U.S. Sen. Bill Frist’s State Collaborative on Reforming Education, which is seen as at the forefront of K-12 education reform. The state is still in the first stages of its First to the Top program, and teacher evaluations based greatly on data gained from student performance are new.

Asked directly if he might have another legislative package in mind on education for next year, Haslam did not say yes or no. But his answer indicated the possibility.

“I think we’re going to continuously look at seeing what things we can do to keep moving forward,” Haslam said. “There was a lot of conversation this year — and the last two years — about: How do we raise standards in Tennessee? How do we make sure we have the very best people teaching?

“I think one of the fair questions that’s come up has been: You have talked a lot about attracting the very best people to teach. Just how are you going to do that? We’re going to start those conversations this next month. Are there things we can do, given fiscal realities and given the current education situation?”

Some schools this year sought and obtained waivers on the 180-day requirement for the school year due to storm damage, which Haslam said was a rather unique situation.

“I think the bigger question is: Is the 180-day mark the right one? Is six and a half hours a day for 180 days the right one, given where the world is competitively?” Haslam said.

A study issued six months ago showed that nations leading the list on Program for International Student Assessment tests were China, Finland, South Korea, Canada, The Netherlands and Japan. Students in the United States were considered to have average scores, as they have for several years. U.S. students were found to be average in reading and science and below average in math. The tests were done for the Organization for Economic Cooperation and Development.

The results showed that countries with the highest performance on tests tended to be countries where teachers were paid better. One notable twist in the results, however, was that Canada, a consistently good performer in the tests, has strong teachers’ unions and has an education system similar to the United States.

Finland has consistently done well in the testing, but its students do not have especially long school calendars.

Haslam had education at the top of his legislative agenda this year, with tenure and charter school reform foremost. The Legislature held a long, contentious battle on collective bargaining, ultimately undoing the collective bargaining system with the teachers’ union the state has known since the 1970s. Haslam was involved in those talks along the way, but he managed to stay largely above the fray on collective bargaining.

When the teachers’ union, the Tennessee Education Association, urged Haslam at the end of the session to veto the collective bargaining bill, he quickly dismissed the idea. When the TEA cited bad morale, Haslam referred to the Teaching, Empowering, Leading and Learning (TELL) survey that showed a high rate of satisfaction among teachers about their workplace.

Teachers’ representatives have said the Legislature has done serious harm to its relationship with teachers. Nevertheless, a series of meetings between Haslam and Huffman and educators in various settings throughout the state have been widely amicable.

The Legislature handed Haslam victories that extended the threshold for teacher tenure from three years to five years and removed the state’s caps on charter schools, although the charter bill was amended to give local school districts the right to reject charter plans due to expense if they can back up their claim.

As for maintaining teacher effectiveness, SCORE recommends intensive mentoring programs, time for teachers to collaborate with other teachers and alternative compensation systems that pay teachers on their effectiveness and their area of specialty (pdf).

Democrats were generally favorable toward Haslam and Republican legislators on the $30.8 billion budget, but at the end of the legislative session Democratic leaders still felt the sting of education reform and rushed to defend members of the state’s largest teacher union.

Rep. Craig Fitzhugh, D-Ripley, the Democratic leader in the House, said that instead of attacking unemployment, what resulted in the Legislature this year was “sort of an attack on teachers.”

Rep. Mike Turner, D-Old Hickory, the House Democratic Caucus chairman, agreed. Turner argues that the interests of Tennessee teachers are synonymous with the priorities and activities of the state’s most powerful teacher union.

“Some of them kept saying this was not an attack on teachers,” Turner said. “That’s about like Lee Harvey Oswald saying, ‘I have nothing against President Kennedy.’

“They were attacking the teaching profession. They were attacking the organization that helps to develop teacher professionalism.”

Bredesen, Frist Wrap Up Education Campaign Launch in Memphis

State of Tennessee Press Release; July 21, 2010:

New First to Top Coalition to Raise Standards Awareness

NASHVILLE — Governor Phil Bredesen and former U.S. Senate Majority Leader Bill Frist this week are launching the First to the Top Coalition, a statewide alliance of more than 30 business, community and education groups joining together to support public education reform in Tennessee. The campaign is focused on raising awareness among parents about the effects that Tennessee’s new and higher academic standards may have on student test scores, which are set to be released in September.

The coalition and campaign launch will conclude in Memphis on Thursday, July 22 at 11 a.m. Central Time. Joining Governor Bredesen and Senator Frist will be state and local education leaders including Memphis City School Board Commissioner Tomeka Hart and Memphis Mayor AC Wharton. The media and public are invited to attend.

WHO: Governor Phil Bredesen

Senator Bill Frist, SCORE

AC Wharton, Mayor of Memphis

Tomeka Hart, Memphis City School Board Commissioner

WHAT: First to the Top Coalition Campaign Launch

WHEN: Thursday, July 22, 2010

11 a.m. CDT (set up at 10:45 a.m.)

WHERE: University of Memphis Fogelman Executive Center

330 Innovation Drive

Memphis, TN 38152

Beavers Offers Statement on Health Freedom Act

Press Release from Sen. Mae Beavers, R-Mt. Juliet; June 10, 2010:

State Senate Revives Tennessee Health Freedom Act to Attempt to Challenge National Healthcare Bill; However Bill Fails in House

Below is a press release explaining how last night played out in terms of trying to pass legislation that attempted to combat what I believe to be unconstitutional provisions of the national healthcare bill…after working hard with Representative Clark from Idaho on this issue since last winter, it is a shame that political games and votes – mainly by House Democrats, but also Speaker Kent Williams – allowed this bill to be defeated in the State House last night. I appreciate my Senate colleagues for helping pass the Tennessee Health Freedom Act on two separate occasions, and I pledge to continue filing this bill every year until it passes. I will also continue to push for the Attorney General to represent the people of this great state against unconstitutional federal intrusion! – Mae

Last Friday, June 4th, Senate leaders enacted a procedural method that revived the Tennessee Health Freedom Act. The original Health Freedom Act, SB 3498, was sponsored by Senator Beavers and passed the Senate Floor overwhelmingly last February. Yet, due to parliamentary maneuvers and side-deals being struck by House members and the House Speaker, that bill was killed last week in a budget subcommittee.

“The House Speaker cast a tie-breaking vote to kill that bill in committee last week,” said Senator Beavers. “The House committee then decided to pass out a similar, but substantially weaker bill to cover their tracks; however, all of the members knew that bill had not moved in the Senate. Their attempt to only advance the version that was dead in the Senate was their attempt to kill the Tennessee Health Freedom Act.”

The legislature was then left with a predicament in that there were two different versions of a bill that sought to protect Tennesseans from unconstitutional provisions of the national healthcare bill; however, both of their companion bills were stalled in the opposite legislative chamber. Therefore, SB 2560 was recalled from committee and brought straight to the Senate Floor. The only way the Senate agreed to recall the bill was to have an amendment that would put Beavers’ version of the Tennessee Health Freedom Act onto the bill since that was the only amendment that had been through the Senate committee process. If the Senate had not adopted that version of the bill, the bill would have been dead.

“This was an unusual procedural motion,” acknowledged Senator Beavers. “However the difference between this motion and others that have failed in the past is that this amendment has been vetted in committee and passed overwhelmingly in February. To me, its not a question of politics, it’s a matter of policy and principle…the Tennessee legislature needs to send a firm message to Washington that we do not agree with their unprecedented and unconstitutional national healthcare legislation.

Senate Bill 2560 passed the State Senate by a large margin on Wednesday afternoon. The bill was then sent to the House floor Wednesday night, where the sponsor of the House version of the bill non-concurred with the amendment, sending the bill to a conference committee where a compromise was reached. The House then voted to adopt the Tennessee Health Freedom Act by a vote of 44-39. Yet, the bill did not receive the necessary 50 votes to pass in its final form in the House of Representatives.

“I was incredibly discouraged that House Democrats voted to kill this bill,” said Senator Beavers. “The Senate did every maneuver we could to resurrect this bill – even passing the Tennessee Health Freedom Act once in February and then again last night.”

Many Democrats cited the reason for their vote being that Tennessee’s Attorney General said it was likely unconstitutional, yet Senator Beavers argued that such a statement was merely his opinion. “The only way you could say that my bill is unconstitutional would be if you believe Obamacare is constitutional – and the State Senate said loud and clear last night that we do not think it is…it’s the Attorney General’s job to defend the policies of this state, and there is no way that an unconstitutional federal law should trump a constitutional state law!”

To read the two different versions of the bill, as well as the compromise that was reached you can go to the following links:

Tennessee Health Freedom Act (SB3498):

http://www.capitol.tn.gov/Bills/106/Amend/SA0829.pdf

Tennessee Health Care Freedom Act (SB2560):

http://www.capitol.tn.gov/Bills/106/Bill/SB2560.pdf

Compromise Reached (Conference Committee for SB 2560):

http://www.capitol.tn.gov/Bills/106/CCRReports/CC0027.pdf

Fight to Finish Over Federal Health Care Reform

The state-level war over the national health-care package is going down to the wire in the 2010 Tennessee Legislature.

The House on Tuesday passed the “Health Care Freedom Act” — not to be confused with the “Health Freedom Act” the Senate approved earlier this session. However, there’s talk the two might in some way be merged or their language reconciled with one another before the Legislature adjourns for the year.

Both pieces of legislation state generally that government can’t require citizens to purchase health insurance. But the Senate’s version is broader in scope — for example, directing the state attorney general to defend Tennesseans who choose to ignore the federal mandate.

The Senate is scheduled to take up the acts and issues surrounding them again today, on what leaders in both chambers have said is likely to be the last day of the session.

“We’re going to have discussion on the bill in the Senate on the floor, and we’ll just have to see what comes out of that,” said Sen. Diane Black, R-Gallatin, whose SB2560 is the companion bill to HB2622 passed by the House.

Last week the Senate voted to pull SB2560 out of a closed committee to ready it for floor action, including possible alteration and amendment. That move was precipitated by the House killing the original “Health Freedom Act” in the Budget Subcommittee, which is controlled by Democrats and House Speaker Kent Williams.

Further complicating the issue is that Tennessee Attorney General Robert Cooper has stated that the “Health Freedom Act” is unconstitutional. On the other hand, the “Health Care Freedom Act,” wrote Cooper, probably does not run afoul of  either the United States or Tennessee constitutions.

The “Health Care Freedom Act,” sponsored by Rep. Susan Lynn, R-Mt. Juliet, states: “The people of Tennessee have a right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature shall not require any person to participate in any health care system or plan, nor shall it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.”

Black wouldn’t say what she anticipates happening or exactly what she’ll be proposing as far as amendment or adoption of SB2560. Adding to the uncertainty is the ongoing political feud in the GOP between Rep. Susan Lynn and Sen. Mae Beavers, two Mt. Juliet Republicans who are running for the same Senate seat this year. Beavers was the sponsor of the “Health Freedom Act,” Lynn of the language passed by the House Tuesday.

“The only thing that I can say is the Senate will be the Senate, and they will give the bill debate just like they do on any other bill,” Black said.

Debate in the House on Tuesday over Lynn’s bill was mostly a rehashing of well-worn positions staked out by conservatives and progressives in the Legislature. The measure ultimately passed, 53-32.

Republicans generally argued the federal government has no legitimate power to demand that individuals purchase health insurance or any other product. Democrats maintain that the states have no constitutional authority to resist the demands of the federal government.

Andrea Zelinski contributed video interviews for this story.

Lawsuit Seeks to Make Medicare Opt-Out a Real Option

During recent state legislative debates on Tennessee challenging the new federal health care policy mandates, an auxiliary issue that’s come up is Medicare: What kind of penalties do people face who opt out of the U.S. government’s health insurance plan for the elderly?

The question has arisen in committee discussions on the “Health Freedom Act,” which has already passed in the Senate.

Some House Democrats who oppose the act say its language directing the state attorney general to defend Tennessee citizens against involuntary federal health care directives might give people the impression they can also avoid participating in Medicare without fear of federal government retaliation, or with the backing of state legal resources.

During a Commerce Committee hearing last week, Rep. Craig Fitzhugh, a Ripley Democrat, asked the Health Freedom Act’s sponsor, Mike Bell, if the act’s language “is…broad enough to say that I could quit paying my Medicare taxes, and there would be no penalty for doing that if I just opted out of Medicare.”

Bell, a Riceville Republican, answered that current law already allows one to opt out of Medicare. However, in order to do so, a person must also forfeit entitlement to federal Social Security benefits.

Bell went on to indicate that the Health Freedom Act’s intent isn’t to shield Tennesseans from paying federal taxes of any kind already in existence — just that they not be punished for refusing to buy health insurance or participate in new federal health programs going forward.

In fact, the question of just how mandatory Medicare is — and whether the government can indeed withhold Social Security benefits from those who choose to opt out — is a legal dispute that may be coming to a head.

Congress has in reality never stipulated that, as a condition of dropping out of Medicare, Americans must also forfeit their Social Security entitlements, argues Kent Masterson Brown, a Kentucky-based attorney currently suing the federal government on the issue.

There is indeed an active and operative bureaucratic directive to Medicare and Social Security administrators, nearly two-decades old now, that says citizens who opt out of Medicare must forfeit Social Security benefits. Part of the Social Security Program Operating Systems Manuals, it furthermore declares that people must return any Social Security payments they’ve accepted should they choose to ditch Medicare.

Those policies were instituted by the Department of Health and Human Services in 1993, at the height of then-First Lady Hillary Clinton’s effort to overhaul the country’s health care system.

But while Mrs. Clinton’s effort ultimately fizzled, the policy lives on — even though it is a clear violation of both the intent and language of federal statutes governing Medicare and Social Security, Brown said. Brown and five clients he represents who are challenging the policy are arguing that because the directive was illegally promulgated, it should be nullified.

“Making Medicare mandatory is totally contrary to the statute,” Brown told TNReport. “It is an entitlement — you shall be entitled. Entitlement doesn’t mean you have to take it. It just means you have a right to it. Social Security and Medicare both read the same way — ‘shall be entitled.’

“Historically, the secretary of Health and Human Services and the commissioner of Social Security have always interpreted Social Security to be voluntary — you can take it or not,” Brown added. “If you want to leave all your money in there, fine. If you want to take it you can take it.”

Just last week, over the objections of the U.S. Justice Department, Brown and his five clients were given the go-ahead to proceed with their case from a U.S. District Court judge in Washington, D.C. “(N)either the statute nor the regulation specifies that Plaintiffs must withdraw from Social Security and repay retirement benefits in order to withdraw from Medicare,” wrote Judge Rosemary Collyer of the District of Columbia.

Brown’s clients want out of Medicare but don’t want to give up the Social Security benefits they’ve paid into all their lives. All five — one of whom is former U.S. House Republican Majority Leader Dick Armey, now the chairman of the conservative activist group FreedomWorks — say they prefer their own health plans. The policies belonging to the plaintiffs — who in addition to Armey include four others, two of them former federal employees — range from high-deductible insurance coupled with health savings accounts, to standard Federal Employee Health Program benefit packages, said Brown.

Brown attributes the fact that the government’s punitive policy has gone unchallenged for so long to the prohibitive costs associated with legal challenges against the federal government on health care issues. Also, the administrative appeals processes people must typically exhaust before they’re allowed to use the courts to settle their federal regulatory grievances is extremely long and grueling, he said.

“Litigation like this is vastly expensive — it takes a tremendous amount of resources,” he said.

Brown said that in his dealing with federal attorneys on the matter, they’ve mostly justified the government’s actions by arguing that agency decision-makers are deserving of much latitude and deference when it comes to interpreting federal laws as they go about implementing or administering programs.

Brown added that it is unclear how Clinton administration officials determined they had the authority to make such sweeping policy shifts contrary to the statutes. For his purposes, Brown said he doesn’t really care what they did to rationalize their actions; that he can prove the bureaucrats did indeed promulgate unlawful rules is all that really matters.

And while Brown, who occasionally writes for and speaks on behalf of free-market organizations like the Cato Institute, is quick to point out that his clients’ Medicare case is far removed, legally speaking, from the ongoing debates over the federal health care overhaul, he also believes it serves as a warning that where vast and powerful agencies are concerned, policies are often executed very differently manner than that promised not just by politicians, but the law itself.

Brown worries the agency officials who will administer the health reforms signed into law last month could promulgate “the most onerous rules imaginable.”

His case “illustrates the power these people will wield,” said Brown. “It’s absolutely frightening to think what they could do.”

Senate OK’s Education Reform Bill

The bill to line Tennessee up for  “Race to the Top” federal education funds was approved in the Senate by a 29-3 vote.

The legislation sets the state up as a stronger competitor for the federal grant by creating an “achievement” school district to adopt failing schools and require teacher evaluations to factor in student test scores.

“I can absolutely guarantee you to 100 percent, if we don’t do this, those children will continue to have an education that is second class in Tennessee,” said Sen. Jim Kyle, D-Memphis, the Senate Democratic leader who sponsored the bill.

The three who voted against the bill included Sens. Mae Beavers, R-Mt. Juliet; Thelma Harper, D-Nashville; and Beverly Marrero, D-Memphis.

Objections ranged from a lack of minority representation on a special education commission to invading state sovereignty.

Now that SB7005 has passed the Senate, the body awaits action on it’s partner bill, HB7010 across the hall in the House of Representatives.

House members were caucusing early afternoon and expect to pick up the bill for floor debate beginning at 3:30.

The Senate will be back in session at 6 p.m. to work out any differences between the House and Senate bills if the House version passes.

Guv Taking Hands-Off Approach to Health Care Reform Challenge

Gov. Phil Bredesen indicated today he won’t push to try blocking federal health care legislation in court.

While Bredesen, a Democrat in his last year in office, has in the past taken issue with the hefty $1.5 billion price tag the plan could mean to Tennessee in expanded Medicaid costs, he said the decision-making authority to file legal action is properly left to Attorney General Bob Cooper.

“I think it just encourages really bad behavior on the part of legislators just seeing everything as an opportunity to hold things up and get something. That’s not the way it’s supposed to work,” he told reporters Monday after addressing the Nashville Rotary Club.

Cooper said last week he’s going to hold off deciding whether to pursue a legal course against the federal government’s health care reform package until the final legislation is ironed out in Washington.

Republican state Reps. Susan Lynn, Mt. Juliet, and Debra Young Maggart, Hendersonville, urged Cooper to begin investigating now whether Tennessee has a case against the health care overhaul on the basis that the federal insurance-purchase mandate is a violation of Tenth Amendment state sovereignty protections.

Another sticking point for many critics was the political compromising behind the U.S. Senate’s bill, which exempted Nebraska from paying its share to expand Medicaid programs.

State Senate speaker Ron Ramsey, a Republican candidate for governor in 2010, has also called on Cooper to “examine the constitutionality of federal legislation which singles out Nebraska for favorable treatment over 49 other states.”

Sen. Diane Black, a registered nurse from Gallatin, said she’d too would like to see Tennessee fight the federal government’s health care plan on the basis that it creates a mandate and favors one state over others.

“I would just assume they just not try to mandate how health care should be conducted in our particular state,” the Republican said.

Bredesen said he was “very unhappy” that Nebraska will be spared the full cost of the legislation.

“I will be honest. It is just a huge load on the states at a time when we’re still digging out of this recession,” Bredesen said about Washington’s efforts at health care reform.

The governor stopped short of saying whether he felt the state should join or ignore the 13 other Republican attorneys general who have lined up to fight the health care package.

Legislators in at least 16 other states have introduced bills or constitutional amendments to stifle the health care package, according to the National Conference of State Legislatures.