March 23, 2022
Permission to republish original opeds and cartoons granted.
Federal judge strikes downBecerra HHS enforcement of No Surprises Act, says rule ‘rewritesclear statutory terms’ and that ‘insurers now holdultimate power’
By Robert Romano
U.S. District Judge Jeremey Kernodle on Feb. 23 struck down part of the enforcement of the No Surprises Act by Health and Human Services (HHS) Secretary Xavier Becerra, saying that under the new rule, “because insurers had ultimate say on what in-network rates they accepted in 2019, insurers now hold ultimate power — and are charged by regulation — to calculate the [qualifying payment amount]” for a medical bill.
This was wrong, wrote Kernodle because “The Act also prohibits the arbitrator from considering the provider’s usual and customary charges for an item or service, the amount the provider would have billed for the item or service in the absence of the Act, or the reimbursement rates for the item or service under the Medicare, Medicaid, Children’s Health Insurance, or Tricare programs.”
Here Kernodle was referring to 42 U.S.C. Section 300gg-111(c)(5)(D), which states “In determining which offer is the payment to be applied with respect to qualified [independent dispute resolution] IDR … the certified IDR entity with respect to a determination shall not consider usual and customary charges, the amount that would have been billed by such provider or facility with respect to such items and services had the provisions of section 300gg–131 or 300gg–132 of this title (as applicable) not applied…”
In other words, the Becerra rule favored insurers over doctors’ offices by attempting to define a qualifying payment amount as closely akin to what insurers’ had previously set those rates, too. In the meantime, the intent of the law was the opposite, not to lock in billing rates that had been already set under the prior legal and regulatory scheme, with the goal of creating a new level playing field via an arbitration process between health service providers and those entities that pay for those services when it comes to disputed medical billing.
In the ruling, which blocked enforcement of HHS’ proposed arbitration scheme, Judge Kernodle blasted Becerra for “rewriti[ing] clear statutory terms.”
Kernodle explained, “The Act instructs arbitrators to ‘consider’ the [qualified payment amount] QPA and the five other factors in deciding which offer to accept… That’s it. The Rule, in contrast, requires arbitrators to ‘select the offer closest to the [QPA]’ and deviate from that number only if ‘credible information’ ‘clearly demonstrates’ that the QPA is ‘materially different from the appropriate out-of-network rate.’”
Kernodle added, “Because the Rule ‘rewrites clear statutory terms,’ it must be ‘h[e]ld unlawful and set aside’ on this basis alone.”
Now, there is a push for lawmakers to encourage Becerra to follow the law, rather than rewriting the law to suit one interest group over another. Americans for Limited Government President Rick Manning on March 18 supported Judge Kernodle’s ruling and urged members of Congress who supported the No Surprises Act to contact Secretary Becerra, saying, “Any lawmaker who supported the No Surprises Act should be furious that Becerra tried to turn it into a giveaway to insurers by adopting price controls that would shut down rural hospitals and make it harder for patients to see a doctor when they need one.”
Manning noted that the impact of the regulation would have been to implement price controls on doctors’ offices, an approach that Congress explicitly rejected when the No Surprises Act was debated, “Secretary Becerra and the Biden administration sided with big insurance companies by using the rulemaking process to turn the bipartisan No Surprises Act into government price controls by another name.”
The upside, Manning said, was that it would force HHS to revisit the regulation, concluding, “Thanks to Becerra’s incompetence, a federal court threw out those rules and told HHS to go back to the drawing board to implement the law the way Congress intended.”
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
Cartoon: Firestarter
By A.F. Branco
Click here for a higher level resolution version.
To view online: https://dailytorch.com/2022/03/cartoon-firestarter/
Video: Supreme Court nominee Jackson's past sentencing recommendations being withheld from Senate
To view online: https://www.youtube.com/watch?v=fOZFegJbXp8
The Justice Department spied on Project Veritas
By Rick Manning
Legal documents from Microsoft Corporation show that the Biden U.S. Department of Justice engaged in a surveillance operation against Project Veritas. But this goes beyond the Lois Lerner-IRS harassment of Tea Party groups, or even the FISA warrant manipulation DOJ engaged in when spying on the campaign and office of President Donald J. Trump.
In this instance, DOJ had attempted to get U.S. District Court Judge Analisa Torres to approve warrants covering the privileged emails and contacts of eight Project Veritas journalists. Judge Torres directly cited First Amendment concerns in rejecting the warrant requests out of the U.S. Attorney’s office of the Southern District of New York.
It is shocking, even in today’s world where the Justice Department has been outed as a politically motivated prosecutorial weapon for the left, that the DOJ then went behind the Judge’s back to request and receive an extension of two sealed non-disclosure orders from a different federal magistrate to cover up the previous abuses of Project Veritas’ First Amendment rights.
Incredibly, the early review of documents reveals that the Southern District of New York may already possess up to 150,000 documents and have obtained more than one thousand journalistic contacts. All of which, the SDNY failed to disclose to the Judge and the Court’s designee who was appointed to determine what was First Amendment protected and what wasn’t.
This is another case of the Justice Department running roughshod over basic Constitutional rights with complete disregard for the rule of law. If we hadn’t experienced the past decade of DOJ abuses, it would be reasonable to expect that heads should roll.
Knowing that the DOJ seemingly never is held accountable for violations of individual’s civil liberties, the best that one can hope is that this abuse of power is so massive that traditional civil liberties groups on the left take notice and hold the Biden administration to account.
And the good news is that the American Civil Liberties Union, which has been notoriously Missing in Action on a variety of federal government abuses in the past few years has issued a statement condemning the actions by the Justice Department stating, “We're deeply troubled by reports that the Department of Justice obtained secret electronic surveillance orders requiring sweeping disclosure of “all content” of communications associated with Project Veritas email accounts, including attorney-client communications. Compounding these concerns, the government suppressed information about the existence of the electronic surveillance orders even after the investigation became public knowledge and the district court appointed a special master to supervise prosecutors’ access to Project Veritas’ sensitive materials…”
It has been too long that the Justice Department has been able to disregard the rule of law and the Constitutionally guaranteed liberties that our Constitution enumerates. It is our hope that Judge Torres holds the Department accountable for their surveil now, ask questions later approach. Unfortunately, until individual DOJ attorneys lose their jobs, law licenses and perhaps have some personal liability for this kind of proven, willful and blatant violation of the law, there will be no accountability or justice.
Rick Manning is the President of Americans for Limited Government.
To view online: https://dailytorch.com/2022/03/the-justice-department-spied-on-project-veritas/
ALG Editor’s Note: In the following featured report from the Washington Examiner’s Anna Giaritelli, a federal judge has blocked attempts by President Joe Biden to limit immigration enforcement:
Washington Examiner: Biden effort to limit ICE enforcement blocked by federal judge
By Anna Giaritelli
A federal judge has blocked the Biden administration from imposing limitations on Immigration and Customs Enforcement arrests, detentions, and removals.
District Judge Michael Newman of the Southern District of Ohio ruled Tuesday in favor of the Republican attorneys general of Arizona, Montana, and Ohio, issuing a preliminary injunction prohibiting President Joe Biden from imposing new guidelines for laws regarding consequences for illegal immigration.
“The States sue because they believe DHS skirted Congress’s immigration enforcement mandates when it issued a policy that prioritizes certain high-risk noncitizens for apprehension and removal,” Newman wrote in his ruling. “DHS contends that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement."
“At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no,” Newman wrote.
Arizona Attorney General Mark Brnovich, Montana Attorney General Austin Knudsen, and Ohio Attorney General Dave Yost sued the Biden administration in November 2021 over the policy revision, which they said “dramatically ties the hands of immigration officers, halting nearly all deportations.”
That month, the Department of Homeland Security, which oversees ICE, issued a permanent guidance to limit whom ICE could arrest and thus remove from the country. The guidance established that ICE officers had to obtain permission to arrest illegal immigrants who had not been convicted of an aggravated felony, were not affiliated with a gang or terrorist network, or had illegally entered the U.S. before November 2020.
"This is a great victory for the rule of law, border security, and public safety across the country. President Biden’s open border policies make it easier for the Mexican cartels to smuggle drugs into our country, which is part of the reason we’re seeing such an increase in violent crime," Knudsen said in a statement to the Washington Examiner Tuesday afternoon. I hope the Biden administration will follow the court order and start following the law when it comes to deportations, particularly for those illegal aliens who have prior criminal convictions.”
Under Trump, ICE officers were told to pursue any illegal immigrant, including those arrested after driving under the influence or charged with other less violent crimes. Since February 2021, ICE officers have had to go through an internal approval process by management before going into communities and arresting specific immigrants if they do not meet the three criteria.
Knudsen said in a statement from November that the Biden administration policy would "further incentivize illegal immigration and worsen the ongoing border crisis."
ICE data for fiscal year 2021, which ended in September 2021, revealed that arrests and deportations of illegal immigrants dropped more than 75% compared to the record-high numbers seen during the Obama administration. ICE removed 59,011 noncitizens in 2021, mostly under the Biden administration’s more rigid criteria. In 2011, nearly 400,000 noncitizens were deported — meaning the numbers were down 85% under Biden.