Shortly after state health officials confirmed the first presumptive case of the coronavirus — dubbed COVID-19 — in Nevada this past week, Gov. Steve Sisolak issued an emergency regulation regarding insurance coverage for testing and treatment of the rapidly spreading virus.
State law gives the governor the power in emergency situations to make, amend and rescind regulations in response to the emergency. Customarily one thinks of such things as calling out the National Guard to prevent looting or other problems after a national disaster.
In this case the Commissioner of Insurance Barbara Richardson made a finding that an emergency affecting the health and safety of the public exists and that adoption of an emergency regulation was appropriate.
What Sisolak did was attempt to avert potential adverse financial impact for those who carry health insurance.
We highly recommend the governor keep a close eye on the effects of his order lest it have unintentional adverse affects on the availability of testing and potential vaccines or treatments for the disease. Dictating the price of things in the marketplace has been known to deter availability of goods and services when adequate compensation is not forthcoming.
There has been plenty of anecdotal evidence over the years that so-called anti-price-gouging laws merely limit the supply of necessary goods and services in a crisis.
For example, according to the American Institute for Economic Research, in 2005 a Kentucky man took time off from his job, bought 19 power generators, rented a truck and drove to hurricane-ravaged Mississippi intending to sell the generators at twice the price he paid to cover his costs and make a profit. Police confiscated his generators for price gouging, held him for four days and kept the generators in police custody. Those who urgently needed them and would have gladly paid the asking price suffered in the dark instead.
“This pre-emptive emergency regulation should give Nevadans confidence to continue taking preventative measures to stop the spread of COVID-19 as well as seeking necessary medical services and prescriptions without fear of higher than normal costs,” Sisolak was quoted as saying in a press release accompanying the emergency declaration. “Protecting Nevadans is my top priority, and adopting this emergency regulation is a critical piece of our broader plan to anticipate and prepare for the potential impacts of COVID-19.”
The press release said the order prohibits a health insurance company from imposing an out-of-pocket charge for an office, urgent care center or emergency room visit for the purpose of testing for the virus. “Additionally, the regulation prohibits insurers from charging Nevadans for the COVID-19 test itself or an immunization as one becomes available and further requires coverage for off-formulary prescription drugs if a formulary drug is not available for treatment,” the press release says.
Sounds confiscatory. If companies are prohibited from recouping their expenses for services provided, how readily available will those services be?
The regulation further requires health insurance companies to pro-actively provide information on available benefits, options for medical advice and treatment through telehealth systems and ways to prevent exposure to the virus.
With only a few cases in Nevada so far such measures may be premature. There have been no reports of insurance price gouging due to the virus that we are aware of, which is what the governor’s emergency order appears to be intended to stave off.
We suggested the commissioner of insurance and health officials keep a close watch on events as they develop to assure these shackles on the free market do not interrupt the availability of necessary services and thus create the opposite effect of what the governor intends.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, Sparks Tribune and the Lincoln County Record.
It was a senseless and futile gesture, but our Democratic lawmakers and governor were just the ones to do it.
Despite the fact Nevada voters in 1994 and 1996 amended the state Constitution to declare “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form,” the 21-member state Senate approved the extension of taxes and fees that were supposed to be curbed with a 13-8 vote, one vote short of the constitutionally mandated two-thirds. Gov. Steve Sisolak signed the tax extensions into law.
The eight Republican senators who voted against the tax extensions and three companies that would have to pay the higher taxes have sued in district court in Carson City, asking the court for a temporary restraining order and a permanent injunction against enactment of the laws.
The Democrats charged ahead with tax and fee extensions after their compliant Legislative Counsel Bureau (LCB), the lawmakers’ lawyers, issued an opinion that a two-thirds vote was not necessary since the taxes were not being “raised” but merely allowed to continue at a rate that was scheduled to be reduced, paying no heed to the fact the bills in question “generate” public revenue. Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.
When Republicans first threatened to sue, Sisolak confidently stated, “We’ve got legal opinion from LCB that, you know, a simple majority is what’s needed. I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”
After the suit was actually filed, a somewhat less assured Sisolak was quoted by the pressas demurring, “I remain absolutely committed to taking action if necessary following the court’s decision to ensure our schools continue to receive the total amount of funding approved by the Legislature for the … biennium.”
According to the governor’s executive budget at the end of that biennium there is expected to be a rainy day fund balance of $415.2 million, more than enough to cover the $98 million that the extension of the modified business tax rate and the $7 million that the $1 Department of Motor Vehicles technology fee extension are expected to generate.
The modified business tax extension is scheduled to begin being collected on Oct. 1 and the technology fee was set to end on July 1, 2020.
So, what was the point in pushing the constitution-ignoring legislation?
Senate Republican Leader James Settelmeyer said in a statement released to the media after the suit was filed, “We have checks and balances for a reason and eroding the two-thirds requirement is an unprecedented disregard for the constitution and creates a dangerous precedent. While there was ample money to fund education and other vital programs, Sisolak and (Senate Democratic Leader Nicole) Cannizzaro acted recklessly and their behavior created an unnecessary constitutional crisis at the expense of over 23,000 small business in Nevada.”
The lawsuit itself makes abundantly clear the stakes involved here: “This action involves an issue of of significant public and statewide importance as it seeks to uphold and protect the constitutional amendment proposed by citizen ballot initiative adopted and overwhelmingly approved by Nevada voters in 1994 and 1996. As provided in Article 1, Section 2 of the Nevada Constitution, political power is inherent in the people. Government only has power from the consent of the governed, and the residents and citizens of the State of Nevada twice voted strongly in favor of amending the Nevada Constitution to add the two-thirds requirement, and the two-thirds requirement has, at least prior to 2019, been applied consistently to legislative bills extending sunsets by the Nevada Legislature.”
The Republican senators and three companies, of course, are asking for recovery of reasonable attorney fees and costs. So, the taxpayers are likely to get stuck with all the costs from both sides.
The suit further noted that lawmakers “had enough money to fund the State’s budget without the public revenues created, generated or increased as a result of the changes to the payroll tax …”
So the passage with less than two-thirds votes was senseless, and, once the courts correctly rule that a two-thirds vote was constitutionally necessary, it will have been futile.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.