Commentary

NC Policy Watch Policy Prescription #9: Expanding opportunities for justice within the criminal justice system

As the 2018 legislative session gets underway in earnest in this, its first full week, we hope you will continue reading our special series “Policy Prescriptions” researched and written by A. J. Fletcher Foundation Fellow Samone Oates-Bullock. Last week, Prescription #1 addressed food insecurity in North Carolina. Prescription #2 took on the issue of early childhood investments. Prescription #3 analyzed the challenge of funding school adequately and fairly. Policy Prescription #4 called for racial equity in education. Policy Prescription #5 called for tackling the issue of environmental racism in North Carolina. Prescription #6 made the case closing the Medicaid coverage gap. Prescription #7 urged lawmakers to make North Carolina more worker-friendly. Yesterday, Prescription #8 called for new and transformative investments in affordable housing.

Today, the focus is on tackling the issue of second chances for those who have run afoul of the criminal justice system. The following is from Policy Prescription #9 – “Creating second chances: Expanding opportunities for justice within the criminal justice system”:

“While the U.S. crime rate has dropped steadily since its peak in the 1990’s, incarceration rates have continued to rise at an alarming pace. For this reason, the United States now accounts for almost a quarter of the world’s prison population while representing less than five percent of the total world population. The inconsistencies between crime and punishment highlight only one piece of the puzzle. In addition to incarcerating more people than any other country in the world, today’s justice system disproportionately targets and incarcerates African Americans. As of 2018, the U.S. population is 12.6 percent African American and 73.3 percent white; whereas the prison population is 37.9 percent African American and 58.4 percent white . This trend of widespread and disproportionate imprisonment has had detrimental impacts on our economy, communities, and the quality of life for people with criminal records. The fight for second chances is undoubtedly complex, but recognizes the need for a justice system that places rehabilitation, reentry, and morality at the forefront of its operations.”

Click here to read the entire report.

NC Budget and Tax Center

Another Policy Proposal Ignores Reality of Today’s Job Market

Leaders in the General Assembly appear poised to take health care away from parents with low income through a change to Medicaid,  and they plan to do it using a budget process where no amendments can be offered.

The change would likely take the form of what some other states have proposed, requiring a certain number of hours each month in order to maintain health care access.  This plan ignores the reality facing more and more working North Carolinians who don’t control their schedules and are often at the mercy of economic forces beyond their control.

For this reason, and given what we know about what has happened when implemented in other areas, rigid work requirements will not deliver on the intended goal of increasing employment.  Indeed, researchers have documented the ways in which this could actually reduce employment in the long-term and grow poverty.  It may also be too harsh to receive federal approval.

Here are key facts about today’s labor market that legislators should consider as they seek to take health care away from parents with low income:

  1. There are too few jobs for those who want to work. Despite the state’s employment growth since the national recovery began in 2009,  there are still 87 counties where there are more jobless workers than job openings. In many communities, finding work is still a challenge, regardless of whether elected leaders in Raleigh accept that fact or not.
  2. Work is increasingly unstable resulting in a lack of consistent work hours each month. Research by the Center on Budget & Policy Priorities finds that of low-income adults who have worked in the past year, at least 1 in 4 have less than 80 hours of work in at least month.  This threshold is the one used by Kansas to determine eligibility on a month by month basis and failure to meet it means the loss of health insurance for a period. The issue of unpredictable hours is prevalent in the labor market and has created increased income volatility and economic hardship.
  3. Temporary and contingent work means despite working in a year, many workers face unpredictable employment. Temporary work has grown by 52 percent in North Carolina compared to 32 percent growth in the national economy.  Temp workers in North Carolina earn well below the national average. Temporary workers have little control over how many hours they work in a given month, which could put their healthcare coverage at risk through no fault of their own.
  4. Work at minimum wage doesn’t pay enough to make ends meet. A minimum age worker in North Carolina with one child who works just below the 80 hour a month threshold or 20 hours a week would qualify for Medicaid.  The annual income limit for Medicaid is 43 percent of the Federal Poverty level for an adult.
  5. Our labor market depends on public policies that make sure people can get by in low-wage work. One in five North Carolinians can’t afford to make ends meet in North Carolina based on work alone.  Food assistance and housing support, health insurance and child care subsidies aim to ensure people meet their basic needs and stay connected to the workforce.  Restricting access to these supports hurts employment outcomes and the well-being of families.  It also creates the wrong incentives by creating “cliffs” for working people where adding hours and income push them out of eligibility without ensuring that they can secure the needed benefit through work.  This is clear in North Carolina where those receiving Medicaid who could be subject to a new requirement to work a certain number of hours in the month and can’t meet it would be pushed into the coverage gap.  As a non-expansion state, North Carolina would be driving people out of a pathway to self-sufficiency.

On the heels of hundreds of business leaders, workers and advocates gathered in Raleigh on Tuesday to ask legislators to raise the state’s minimum wage from the current federal level of $7.25, it is clear our legislative leaders continue to miss the opportunity to advance policies that address the most pressing issues in today’s labor market.

Now they could consider a policy proposal that would actually make things worse for North Carolinians.

Let’s hope they reject including work requirements in the budget bill and taking health care away from low-income parents.

Environment, Governor Roy Cooper, Legislature

Analysis: Water Safety Act constitutionally suspect, could slow down enforcement, clean up

Rep. Ted Davis Jr., a New Hanover County Republican (Photo: NCGA)

It’s curious how two legislators, who, in their day jobs are attorneys, have co-sponsored bills that leak state and federal law like a sieve.

The Water Safety Act — Senate Bill 724 and  its identical companion legislation House Bill 972 — pretend to strengthen regulations and enforcement against Chemours, but in reality, make the state vulnerable to legal action by the company and do little to clean up GenX contamination.

The legislation could be folded into a larger budget bill, making it all but impossible to defeat.

Primary sponsors of the House version are Republicans Ted Davis Jr. (the lawyer of the bunch), Holly Grange, Frank Iler and Bill Brisson. They all are members of the House Select Committee on River Quality.

The Senate counterpart is co-sponsored by Republicans Mike Lee, an attorney, plus Bill Rabon and Wesley Meredith.

The Department of Environmental Quality and Gov. Cooper both issued statements and analysis critical of the bill today. But environmental lawyers, policy analysts and environmental groups, have also chimed in. They have noted the bills’ serious legal defects that could hamper cleanups, run afoul of current state and federal laws, and deprive Chemours and other polluters their constitutional right to due process.

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

The bills makes DEQ’s actions dependent on the governor, who is authorized to issue an administrative order to “require a facility to cease all operations that result in the production of a pollutant.” (In the bill, “pollutant” is not defined.)

“On its face, a governor’s order sounds like a quicker and more direct way to stop the release of these pollutants,” wrote former Assistant DEQ Secretary Robin Smith, now a lawyer and consultant in private practice, on her environmental blog. “In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent the order from going into effect until there has been a final decision on the appeal.”

#GenX bill is divorced from reality Click To Tweet

Those appeals can take months; meanwhile, contamination could continue unabated.

On the other hand, DEQ can go directly (and quickly) to court for an injunction, which the agency has already done in Bladen County to stop Chemours from discharging GenX offsite.

While the legislation appears to target Chemours and its “discharge” of GenX and fluorinated compounds, DEQ pointed out that “discharges,” as defined in state law, exclude air emissions. GenX-related compounds are being emitted into the air from the Chemours plant and contaminating surface water, soil, groundwater and drinking water — topics also extensively discussed in the House River Quality Committee.

In addition, the bill sponsors seemed to go out of their way not to fund DEQ, other than $2.3 million worth of breadcrumbs. “While providing extravagant funding to those other entities, the bill fails to make a long-term investment in DEQ’s regulatory programs that have been subject to budget cuts since 2011,” DEQ said in its analysis.

By comparison, the bill serves as an ATM for other entities: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory at UNC ($8 million), whose research director is Jeffrey Warren, former science advisor to Sen. Phil Berger.

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Environment

SELC files complaint vs US Fish and Wildlife over 540 toll road threat to endangered mussels

The Yellow Lance Mussel, a federally threatened species, could be eradicated by the construction of the 540 toll road. (US Fish and Wildlife Service)

Tiny and unobtrusive, the endangered Dwarf Wedgemussel and the threatened Yellow Lance Mussel are minding their own business in Swift Creek in southern Wake County. They’re doing what freshwater mussels do: The larvae, having hitchhiked a ways on the back of fish like the johnny darter or a mottled sulpin, hatched just last month. Free of their kids, the adults are hanging out in the sand bottom, nibbling on algae.

These two mussels, though, live in the path of the proposed 540 toll road. And now they’re at the center of a federal complaint filed by the Southern Environmental Law Center.

Filed in US District Court for the Eastern District of North Carolina, the complaint alleges the US Fish and Wildlife Service committed “arbitrary and capricious”errors when it approved the biological opinion for the 540 toll road. The agency determined that direct effects of the project pose “no jeopardy” to the mussels within a quarter mile of their known occupied habitat in Swift and Middle creeks.

“USFWS has failed in every way to analyze impacts to the endangered mussel species and to ensure that measures are in place to prevent extinction, minimize loss and put the species on the road to recovery,” the complaint reads.

USFWS did not respond to an email request seeking comment.

A biological opinion is the scientific lynchpin for evaluating a project’s potential environmental damage. The harm can be direct — construction that erodes a stream bank, for example — or indirect — stormwater runoff, sedimentation and increased development that usually accompanies such road projects.

Swift Creek near NC 50 in southern Wake County

The opinion is also legally required to consider a project’s cumulative impacts in an “action area.” These cumulative impacts could include the construction of the Atlantic Coast Pipeline, which will pass through Johnston County, as will part of the toll road.

The federal agency’s errors could permanently harm, or even wipe out, the mussels, SELC says. Federal law recognizes that construction can unavoidably kill some members of endangered or threatened species. That damage is limited though, in an “incidental take” permit, which is supposed to specify “whenever possible” the number of animals, birds or aquatic organisms that can be killed.

These “incidental takings,” as they’re known under the Endangered Species Act, would cause the mussels to go virtually extinct in North Carolina.

But, as SELC attorney Kym Hunter pointed out, USFWS has authorized the state to essentially kill all of the mussels within 50-plus miles of their habitat. USFWS has said it’s too difficult to accurately count the mussels because they are “small and cryptic in nature.” In other words, the agency won’t know how many will be destroyed because it doesn’t know how many exist: Out of sight, out of mind.

There are situations in which counting endangered or threatened species is very difficult — their low numbers are precisely the reason for their status. In those cases, USFWS can assign a “surrogate” method of estimating the population. But the law requires USFWS to make a scientific case for the alternative, which, Hunter said, it has not done.

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Commentary

Latest state legislative Medicaid proposal may be too harsh to get approved by Trump administration

The public just learned that lawmakers are rushing to consider adding new rules to North Carolina Medicaid that would make people uninsured if they cannot prove they’re working a minimum number of hours each month. This proposal to add red tape and bureaucracy is bad policy, plain and simple. But there are other reasons that even conservative lawmakers should reject it.

First and foremost, signals coming from the Centers for Medicare & Medicaid Services (CMS)—which would have to approve the proposal—suggest that they are not ready to greenlight so-called “work requirements” in states like North Carolina that have not expanded Medicaid. In practical terms, this could lead to longer delays in decision-making by the federal government.

While expansion states like Kentucky, Arkansas, and Indiana have been authorized to implement  these requirements—which are still bad policy—CMS Administrator Seema Verma has expressed skepticism about what happens if they approve similar requirements in non-expansion states:

Because there is no tax credit for them to move on to the exchanges, what happens to those individuals?  We need to figure out a pathway, a bridge to self-sufficiency.

CMS Administrator Seema Verma

After all, Medicaid eligibility in our state is so restrictive that a single parent household with one child has to make less than $6,828 annually to qualify. Since the state hasn’t expanded Medicaid, these new requirements may make it impossible to keep your health coverage: if you can’t prove you’re working, you lose eligibility, but if you do work—even a part-time minimum-wage job (which, by the way, won’t offer health insurance)—you’ll make too much to qualify for Medicaid and too little to qualify for subsidies under the Affordable Care Act.

Adding these new administrative complexities behind closed doors during budget talks will not leave adequate time to understand their implications. For conservative lawmakers who have invested so much time and energy into moving our Medicaid program from fee-for-service to a managed care system, it’s likely that adding these new requirements—which will cost millions of taxpayer dollars to administer—will add even further complexity to our managed care transition.

Whether it’s due to being denied approval or put on hold by the Trump administration, or due to all the new systems that will have to be designed to determine eligibility, implement and enforce the requirements, create systems for enrollees to report their hours and occupations, and so on, it’s very likely that this will delay our Medicaid system change even further.