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Regulations… Why?

In 1866, Gideon John Tucker wrote a legal opinion that related to a decision in a will case, “No man’s life, liberty or property are safe while the Legislature is in session”. During the 19th century, statesman Daniel Webster reportedly observed that “Now is the time when men work quietly in the fields and women weep softly in the kitchen; the legislature is in session and no man’s property is safe”.

The Libertarian Party is based on a platform that includes the following platform: “As Libertarians, we seek a world of liberty; a world in which all individuals are sovereign over their own lives and no one is forced to sacrifice his or her values to benefit others”.  They also include the specifics of that platform by further stating that, “We hold that all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose“.

There are a lot of people who are angry at the government. They read the words of Tucker or Webster and nod in agreement. They hear the platform of the Libertarian Party and it makes them want to learn more. That’s because even the word “regulation” sets some people off. They are downright angry at the government intruding in their lives. In light of that thinking, the purpose of this blog is to recognize that thought, but also contrast it with some benefits that have been provided by the government because of laws and regulations.

The National Oceanic and Atmospheric Administration is in charge of the National Weather Service. That agency warns us of hurricanes. In fact, a look-back at a 1900 hurricane in Galveston, Texas, reminds us that it killed 8000 people; making it the deadliest hurricane in our history.

Moving forward to Hurricane Ike that hit Galveston in 2008; Because of the National Weather Service, a network of satellites worked together to provide notice of the impending weather condition. Unfortunately, more than 100 people died during the storm, but over 1 million people were evacuated to safer areas. A government agency had been responsible for saving lives that included requiring people to leave the area, when they were told to leave.

Another regulatory agency is the well-known Food and Drug Administration. It recently rejected painkiller Zohydro, calling it “Heroin in a capsule”. It also recently would not approve an epilepsy drug because it determined that the drug had very serious side effects. In addition, the FDA regulates food to keep microbes out of our food. Food and drugs can’t just hit the market without regulation. We count on that agency to keep us safe.

I could recite the benefits of other government agencies that includes the National Institutes of Health that does important research to fight diseases; as well as the Center for Disease Control, which monitors and targets health hazards.

Thankfully, there are rules that govern our safety. It’s why people in a safe community stop at traffic control signs and signals, even when they don’t see a car coming. They also sit on juries and make people accountable for breaking rules. Just some of the reasons that it’s good to have some government rules and regulations.

DID YOU KNOW that pigs, walruses and light-colored horses can be sunburned? Hmm… should they use sunscreen?

And for pic o’ day, here is some strategy:

Disguise Dog

Some Passport Advice

As a Congressional Aide for Congressman Bill Whitehurst, I was tasked with a wide variety of constituent services. Some of the jobs turned out to be regular requests. For instance, several people were directed to me to help them get a White House tour pass. Back then, you could bypass lines and also see a little bit more of the White House, if you got the pass through your Congressman.

Another regular call involved passports. It’s no surprise that many would call in a bit of a panic because they realized that they were going to be traveling and they had just learned how long it would take to get their passport. Usually, the call involved  “I need it by Friday and I was told it was going to be six weeks”.  I would try to help them with suggestions on how to get it done quickly.

I hadn’t thought about passports in a while. Well, not since I was in a hurry to get my own passport for travel.

I came across a good USA Today article Titled “Passport 101: How to apply, renew or replace”. HERE is the article in case you need a quick breakdown on the basics.   It has good information on getting a first passport, renewing or replacing a stolen passport, and how to change your name on your passport. Of course, it also discusses how to expedite getting a passport!

I wish that I had this article help “back in the old days”.

DID YOU KNOW that in 1900, the average life span in the United States was  47?

And for pic o’ day:

jail lion


Cash Only… Medical Marijuana

The Social Media team at the firm is always reminding me to use titles and wording that will help optimize my blogs. Then, I’ll write a blog and realize that I have a real boring title and that I have gone off in so many directions with the blog, that there is no optimization hope! I now imagine that you are nodding “yes”.

This time, I figured I had a title that would optimize. Then, I realized that I was wandering off topic again.

OK… here’s the real topic. The San Francisco Chronicle is reporting that Californians are now learning that they have to pay cash for their medical marijuana. Visa and MasterCard will no longer honor their purchases. Maybe ATM machines are going to see a new influx of business fees.

This topic has always interested me because it’s a State versus Federal issue. Marijuana for medical use is legal in 17 states plus the District of Columbia. However, it is still against federal law to “distribute or cultivate marijuana” and such properties are subject to forfeiture.

In 2009, U.S. Attorney General Eric Holder issued a memo to U.S. attorneys around the country,  that they should “not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana”.

Some of these marijuana dispensaries are facing problems with the IRS because they have attempted to deduct business expenses from their tax returns, like payroll and office rent; and the government will not allow such deductions for “the trafficking of controlled substances”. Guess they will have to hit the ATM a few more times for that too.

This is an interesting addition to the Politics of States’ rights!

For pic o’ day, I thought I would post something on “how to improve a golf game”.

Cursing and Nudity on TV

The title of the blog is more of an attention grabber than usual and it didn’t take creativity. Cursing and Nudity comes straight from a Supreme Court opinion that was published on Thursday.

In Federal Communications Commission v. Fox Television, (NY Times article)  the Supreme Court excused two broadcasters from potential FCC fines relating to past broadcasting violations  against cursing and nudity. It was an 8-0 vote.  Justice Sonia Sotomayor recused herself from the case.

The Court set aside fines against Fox relating to “fleeting expletives” that were uttered by Cher and Nicole Ritchie during a 2002 Billboard Music Awards show.

ABC and it’s affiliates had also been fined for an episode of NYPD Blue. In a 2003 show, an actresses’ bare buttocks were displayed during a shower scene.

The Court never got to the question of First Amendment rights and the possible limitation of free speech, over the airwaves. In fact, the opinion did not provide any guidance relating to when the government has the authority to regulate anything on broadcast television.

The Court did an “end-around” on the real issue. Instead, it chose to base the opinion on notice. Justice Anthony M. Kennedy wrote in the opinion that the FCC had changed the rules in the middle of the game. “The commission failed to give Fox or ABC fair notice, prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionable indecent”.

For those that believe that less government is better government, this opinion will be soup to the soul. However, there are some that don’t want government, unless they want something regulated; like what should be deemed immoral on television.  That’s what makes law full of twists and turns.

I blog… you decide!

For a TV blog, here’s pic o’ day:


Truth or Consequences of the Elections

     A new fast food commercial shows a chicken, stomping and clucking, while the voice over announcer  asks us whether we can find the chicken nuggets on the chicken.  Then, on behalf of the commercial, he says “neither can we”.

     A young boy was asked to give the definition of the word “lie”. In response, he recited two Bible verses, put together, as his definition. He said, “a lie is an abomination unto the Lord, but a very present help in time of danger”.

     The elections will send some back to their offices and others that as replacements. All have made promises. I thought that an election blog should be short because that would be exactly opposite of all the political rhetoric. Following all the elections, we will now know what’s real or what is just something dreamed up as a nugget. How about someone keeping a promise for a change?

Jumping Ship

    I am hitting the exits; Take this job and shove it; Elvis has left the building; I’m Papa John and I am delivering my resignation; See ya, wouldn’t want to be ya; I am jumping ship.

     You can tell by my previous paragraph that I am getting a bit carried away. The above is a  collection of sayings that could be said by someone who is “proudly” leaving their place of employment. Yes, I did throw a few of my own creations. 

     “Jumping Ship” has come  to be known as a term of someone taking control of their destiny. It has even been used to indicate the actions of Democratic candidates, when being associated with House Speaker Nancy Pelosi.  The real basis is connected to such work as the 19th Century English coal trade.

     During the 19th century, hundreds of seaman lost their lives, while sailing on ships that were dangerously overloaded. At that time, there was no regulation as to how much coal  that could be put on a ship. As a result, the more coal, the more profits. Thus, ships would be loaded up to the deck line and make sailing a life or death propostion.

    It is reported that in 1873, 411 ships sailing from England sank, and took countless men to a watery grave. Despite the sight of an overloaded ship, once a seaman signed on for work, he could not back out or he was charged with “jumping ship”, which was considered a criminal offense. For the profit seeking owners, they won either way. If the coal made it, they made money; If the ship sank, insurance paid them for their losses. The sheer numbers showed that “corporate England” did not care about these sailors or these “coffin ships”.

     Samuel Plimsoll   was a British politician who campaigned and is best remembered for developing the Plimsoll Line.  He introduce legislation to get restrictions on how much coal could be shipped. Not surprisingly, he faced great pressures from ship owners and even the British Prime Minister of that day, Benjamin Disraeli. The ultimate adoption of his measurement “Plimsoll Line”, as well as the overall Merchant Shipping Act, is credited with saving many lives.

     I have given you a brief history and example of when government regulation made a difference. Today, politicians are jumping on the theme of “less government”, as an excuse to eliminate government regulations.

     I received a copy of this months Costco “My Business”. It has 3 pages of small business political ads. The premise,  in reaching out to people like me,  is to encourage voting for pro-business candidates. On its face, that sounds like real free enterprise. However, if you look closer at each of these ads, you will notice the words, “Do you stand for an end to burdensome, intrusive government regulations?”

     I just saw a news story about the FDA announcing a significant restriction in the the allowance of prescriptions for the diabetes drug,  Avandia. The FDA is “regulating” this drug, to only be prescribed in limited indications, when no other treatment options exist. To date, 47,000 heart attacks have been attributed to Avandia.  Already, the drug has been banned in Europe. The manufacturer has been fighting restriction and recall.

     A fine line exists between what is right for business, and what is government intrustion. Unfortunately, when profits are at stake, business has been shown to put profit over safety. ” No government” sounds good from a bully pulpit. Unfortunately, there are still those that have that 19th Coal shipping mentality. Next man up for the profit of the company.   Sometimes we better be careful, because we just might get what we ask for.

A Medicare Lesson

     This blog topic is not a grabber. There, I violated the first rule of writing by inserting a first sentence that seems to say, “move on, nothing interesting here”.  In fact, here is the theme of no surprise: Government run Medicare needs a new  law to make it work more effectively.

     I deal with medicare in my law practice. I use the term “deal” with medicare, when in reality, it is very hard to get in touch with a Medicare representative.  I am usually trying to reimburse Medicare from client settlement proceeds, as a result of health care providers that have been paid by medicare. Really! I am trying to pay Medicare money.

     The law says that Medicare is entitled to reimbursement, when  bills relating to a car crash have previously been paid,  and my clients later receive proceeds of settlement as a result of that crash. Specifically, once Medicare makes a payment, they have a lien against the accident settlement proceeds.

      Despite the seemingly expected ease of payback, many of my client’s settlements are slowed down because I cannot get in touch with a Medicare representative or I cannot get a final lien amount. Despite that, the lien continues and can even potentially make me, as the lawyer, legally and/or ethically  responsible,  if I ignore an unknown lien amount. In addition, Medicare delay can last for months or even a year.

   This Medicare law governing reimbursements  doesn’t seem to be law that makes sense. Of course, I am told that there is a California law that says that “No vehicle without a driver may exceed 60 miles per hour”.  In Maryland, it is against the law to take a lion to the movies or throw a bale of hay from a second story window. I’m not making this up. Still, Medicare is a  “stranger than” to me. Why is it so hard to pay back money to the government?

     I’m not the only one that thinks there is a problem. Currently,  a bill is now pending in Congress (H.R. 4796) called the Medicare Secondary Payer Enhancement Act. No,  it’s not  lip plumper legislation.

     Representatives Patrick Murphy (D-PA) and Tim Murphy (R-PA) have introduced this bill to streamline repayments.  1) Medicare would have to respond to a recovery demand letter (a request asking for a final lien amount) or risk losing entitlement to the lien;  2)Medicare would be required to develop and implement an appeals process, when there is an issue with the lien that is claimed by medicare;  3)There would be a 3 year statute of limitations for any Medicare Secondary Payer claims.

     Currently, Medicare can move at its own pace in responding. Getting a live person on the phone is quite a surprise. Many times, after chasing them for the lien, there is correspondence of a lien that does not represent an accurate amount,  that coincides with the payments from treatment and the crash. Medicare notifies at their timing, tells you the amount that they say is due and sometimes it is basically a letter that says “you pay this or we’ll keep tacking on interest”, and they do. Even when you write to question a bill that was paid, relating to treatment that was provided before the date of the crash.

     This is not a blog on the issue of Government mandated insurance. However, if Medicare reimbursement is any prophecy of the future, then we might all be in for some hard times, to get  authorized treatment. It makes me sometimes  feel like I’m dealing with Junior, from the old “Hee Haw” Show.  He would just tell us to call “BR 549”.  

     This bill is currently endorsed by such organizations as Safeway, the American Insurance Association, the Defense Research Institute and Walmart. Hopefully, delay and uncertainty can be fixed by this and the government can even get their money quicker. How is that a bad idea?

Making Sense of the Census

 The US Government spent 2.5 million to buy a Super Bowl ad to tell us how important the US Census is, to our community. The big white envelope arrived at my house with big black words that said "YOUR RESPONSE IS REQUIRED BY LAW". Should I put on my tin foiled hat and refuse to answer because I believe in government conspiracies?; Should I refuse to fill out the Census and see if I am really a "law breaker"?; Is the Census really that important?

You can find blog support on the internet for all three questions, depending on where you click. I suspect that Ron Paul will run on an anti-Census platform for President next time. Plus, there is a certain streak in me that admittedly doesn't react well, when someone says that I have to answer a bunch of personal questions to help out the government and my community, so it made me go and do some research.

Under the US Code Title 13 Chapter 7, it does say in a brief summary, that refusal to answer or giving false answers is "against the law". Possibly receiving an envelope in the mail does not necessarily fall within the interpretation of being "asked by the secretary". However, if the government does not receive a response from your household, they can send someone to your door, called an enumerator, to request answers.  

What happens if you don't answer the Census? What is the threat of the big print on the big white envelope. Well, not answering can subject you to a fine of, hold your wallet,……. $100. If you provide false answers, you can be fined $500. False is worse then no. 

They tell us that the personal information is secure. In fact, if an enumerator or other census employee does give out your information, they can be fined up to $5000. However, when it says that the Census is entirely secure and only used for the purpose of tax money to your locale or redistricting for political office purposes, that isn't entirely correct. For instance, Homeland Security has access to your information, when they deem it necessary. It is public record that in 2002 and 2003, they collected census answers to learn about particular groups.

I guess the concluding thought is that if you don't answer the census, then you aren't helping your area get valuable tax dollars and benefits. In today's environment, I am guessing that many don't really trust someone who says "I'm from the government and I'm here to help you". It's like most things, the Census is based on good intentions. Unfortunately, many believe that the government now serving us, has the ability to abuse those intentions that were set up, when the Census was formed constitutionally by our founding fathers.   

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