What Could Go Right?

If we work together

Jun 11, 2024

You can’t roll up you sleeves if you’re wringing your hands.

—Bulwark publisher Sarah Longwell

A weekly dive into social and political issues, however enlightening, leaves many readers feeling down. For a change of pace, this week’s Grounded investigates sources of collective success. In incremental and often invisible ways, mission-driven people in government and our communities, work towards the common good. But gradual improvements, those series of small wins that lead to progress, rarely make the news. When more folks participate—even in small ways—the good accumulates. With greater democratic involvement, comes greater prosperity.

Voting is crucial and a minimum requirement—but citizens have additional means to influence how government works. The election is the floor: it provides a platform for change. Progress takes place over the long term. Day-to-day government work can be a vector for improvement when bureaucracy is influenced by citizens who care. The devil is in the details.

Bureaucracies are rule-driven. Who controls how the rules are interpreted and implemented makes a big difference in bureaucratic outcomes. The federal system—by law—includes the public in the rule-making process. This is effective because ordinary citizens have information and experiences that can help government experts better understand public problems.

Political scientists studying federal agencies found that by including a robust public comment process, agency rule-making is more likely to yield a more public-interested outcome than that achieved through the legislative process.

Here’s how it works: Five steps are legally required by the Administrative Procedure Act (APA) of 1946 to change or establish a new rule:

After an agency’s experts study a given problem, they draft a provisional rule that specifies how a policy is carried out.
The draft (provisional) rule is published in the Federal Register, and the agency issues a Request for Information soliciting input from the public.
Public comments on the draft rule are collected and reviewed by agency staff. Useful information from the public is used to improve the draft.
30 days before the rule takes effect, a summary is published, and if public input has prompted a change in the text, the modification is explained. During this period, people may comment on or object to the revised rule. If new information comes forward, the consultative process proceeds to a subsequent iteration.
The final version of the rule is submitted to a unit within OMB (in the Executive Office of the President), and if it is approved, it is published in the Code of Federal Regulations. It becomes the rule governing the policy.

A pertinent example of the federal rule-making process comes from an area of great interest to Grounded readers: the self-dealing of private equity firms. I’ve been sounding the alarm about PE takeovers of numerous economic sectors: Red Lobster restaurants, veterinary medicine, hospitals, nursing homes, newspapers, and real estate. Now—the Biden administration is pushing back.

On March 5, 2024, the FTC, DOJ Antitrust Division, and HHS issued the following Press Release and a Request for Information (RFI):

Federal Trade Commission, the Department of Justice and the Department of Health and Human Services Launch Cross-Government Inquiry on Impact of Corporate Greed in Health Care
Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division said, “This RFI will enable the agencies to accurately understand the modern market realities of the health care industry and forcefully enforce the law against unlawful deals. Hearing from patients, workers, and market participants will be critical in developing future enforcement and policy efforts relating to consolidation in the health care sector.”

The FTC and DOJ wanted to know what the healthcare industry was up to . . . and boy, did they get an earful. Here’s a snippet from one citizen’s lengthy public comment (it’s point five out of his list of nine):

5) Unsatisfied with annual profits in the billions of dollars, corporate greed has induced large insurance corporations (including Blue Cross/Blue Shield, Anthem, United Healthcare. . .) to subcontract claims processing to third parties (like Availity, Payspan . . .). Each of these third parties requires healthcare providers to establish an additional online account with them, including passwords that must be updated every 60 to 90 days. This is a time-consuming process . . . . Moreover, when an electronic payment is made, often there is no notification to the healthcare provider, who sees a deposit in a bank account and must go spelunking around the internet to determine its origin. Even when there is a notification from the third party (e.g., Optum) that a payment has been made, the healthcare provider must log into that party's website, go through several pages to access remittance advice (RA), and find that the RA is typically unavailable for 24-48 hours. The healthcare provider must then remember to log in again later to seek the RA. RAs are often not available in a downloadable format, unless a "premium" access plan is purchased, creating another disincentive . . . Some third parties are now charging for electronic fund transfers, which means that healthcare providers must pay to receive reimbursement. . . . Each of these practices reflects greed on the part of the corporation, at the expense of the people providing the healthcare.

Over six thousand comments were received and more than two thousand were posted on the public docket. People are pissed. And how would government agencies know if regular people on the receiving end of corporate exploitation didn’t tell them?

The administrative rule-making process is part of the government’s day-to-day grind—somebody reads those six thousand public comments! Bureaucratic work incrementally builds a foundation that sustains its non-political employees’ efforts to serve the people and withstand pushback from powerful actors. The public’s involvement provides support and mission-critical knowledge.

We The People can help improve the government’s capacity to work on our behalf. From the RFI:

Public comments submitted in response to this Request for Information will inform the agencies’ identification of enforcement priorities and future action, including new regulations, aimed at promoting and protecting competition in health care markets and ensuring appropriate access to quality, affordable health care items and services. This RFI complements the Centers for Medicare & Medicaid Services’ recent RFI on Medicare Advantage . . . .

So-called (rudely) “faceless government bureaucrats” want our help to identify problems and establish enforcement priorities. Agency experts and administrators draw on the public’s experience to identify areas in which healthcare companies engage in unlawful practices or where legislation may be needed to address abuses.

The Request for Information comes at the beginning of the regulatory process. At the end are the results, the final rule. Here’s a new federal regulation that will come as a relief to anyone whose family member resides in a nursing home or long-term care facility:

On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) affirmed its commitment to hold nursing homes accountable for providing safe and high-quality care for the nearly 1.2 million residents living in Medicare- and Medicaid-certified long-term care facilities by issuing the Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting final rule.
This final rule was informed by the feedback CMS received from over 46,000 public comments submitted in response to the proposed rule. Central to this final rule are new comprehensive minimum nurse staffing requirements, which aim to significantly reduce the risk of residents receiving unsafe and low-quality care within LTC facilities. CMS is finalizing a total nurse staffing standard of 3.48 hours per resident day (HPRD) . . .

This one step in the right direction was fought tooth and nail by the private-equity-owned, for-profit nursing home chains. Thanks are due to the bureaucrats standing up for We The People.

Needless to say . . . if Donald Trump is elected in November, you can forget about rules. Or public comment. Or public interest.

Watch for a new feature starting next week: Change the Rules!

I’ll post links to RFI’s and Public Comments for upcoming rule changes in policy areas that I’ve been covering: private equity, AI and tech, higher education, healthcare, etc.

'Real' Rosie the Riveter Dies at 96

For decades, the identity of the woman behind the iconic image was unknown

Naomi Parker-Fraley, a Tulsa, Okla., native, passed away on Saturday at age 96 while in hospice care in Longview, Wash., her family said.
In life, Parker-Fraley was inspiring, working as a machinist at the Naval Air Station in Alameda, Calif., in 1943 when, at age 20, a photographer snapped a picture of her on the job. She was one of the first women to dedicate herself to war work.

Now it’s our turn to get to work.