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A legislative tale of not paying attention

What follows is an obscure and curious tale. It's the tale of a legislative bill that was passed by the Nebraska Unicameral during its 2013 session. Passage happened without a bit of objection from any legislator. The final vote was 45-0 (with four absences). The bill became law just a few days later when Gov. Dave Heineman gave his approval.

It's the tale of LB 361, legislation 14 pages in length that coasted through the full process "on the floor" - where a bill is subject matter for consideration by all 49 legislators - over a period of just 14 days and with about five minutes of actual attention.

The bill's sponsor, Sen. Sara Howard of Omaha, used less than five minutes for her opening/explanation on General File, the first stage of floor "debate." There were no amendments. There were no questions or comments by any other senator. The sponsor waived closing. The vote to advance the bill to Select File was 32-0, with 15 not voting and two excused.

Consideration on Select File, the second stage of floor "debate," was considerably briefer, just enough seconds for a voice vote, advancing the bill to Final Reading.

At that subsequent stage, a full reading of the bill was waived, but there were a couple of minutes of pause for last thoughts and for the votes to be recorded.

A curious aspect of the tale of LB 361 is that the bill had substance. The 14 pages of changes in law are not meaningless or mere clean-up or administrative formalities. The scope and authority of state government are expanded by this legislation, including the extent to which the state can obtain information from segments of the private sector.

The tale of LB 361 epitomizes how the scope and authority of government can be expanded without anyone paying much attention. It epitomizes the trust phenomenon that characterizes a portion of every year's legislation. In this case, the state Department of Health and Human Services (DHHS) urged, "trust us."

Legislation enacted in 1993 mandated that the DHHS chief executive officer appoint a state child-death review team, and directed and authorized this team to review and conduct a comprehensive, integrated investigation of all deaths in Nebraska of persons from birth through 17 years of age. The public-health purposes of this law have been to identify trends and to create a cohesive method for responding to certain child deaths, such as deaths in accidents or by suicide.

LB 361, aka the "Child and Maternal Death Review Act," expands the policy by adding all "maternal deaths" to the duty and authority of the death-review team.

The definition of "maternal death" is broad. It means every death of a woman during pregnancy or during the period of time "ending one year after the woman ceases to be pregnant." Based on the way the legislation is drafted, every woman of child-bearing age who dies in Nebraska will have to be presumed to be a "maternal death" for purposes of the law, unless and until it is determined that the definition doesn't fit.

What's more, LB 361 newly mandates a statewide retrospective review of records relating to each of these deaths; and not only with respect to the deceased, but his/her family members as well.

Other factors are involved in the tale of LB 361. The law:

• Adds "educational records" (undefined) to the government-obtainable, reviewable records relating to both "child deaths" and "maternal deaths."

• Imposes on public-school districts and non-government schools an obligation - for which subpoena authority is prescribed for the review team - to turn over information and records relating to individuals who become a child death or maternal death, and their family members.

• And imposes on all social-services agencies an expanded obligation - subject to subpoena authority - to provide information and records pertaining to any deceased pregnant or post-partum woman who had been provided with services and even if services had been provided, or are being provided, to one or more members of her family.

The extent to which this legislation can impose reporting obligations on schools and social-services agencies, including issues of confidentiality, was a matter of concern for the Nebraska Catholic Conference, resulting in inquiry-based testimony at the public hearing and some follow-up. NCC has not bought into the "trust us" response.

There are some other aspects that add to the curiousness of this tale. LB 361 expands the death-review team from a previous number of eight to 12 members to 12 to 15 members. They have to meet at least four times a year and they aren't compensated, but their expenses must be reimbursed. The new law requires and authorizes the DHHS to employ or contract for a "team coordinator," and it authorizes the death-review team to consult with experts. Experts usually charge fees.

Presumably, these aspects could have monetary costs. Yet, the fiscal analysis on LB 361 predicts, "No fiscal impact." Perhaps some federal funds are involved.

Notwithstanding all these factors, LB 361 somehow qualified for the "Consent Calendar," an expedited process that was the main cause for quick movement into law.

It is not uncommon for at least some legislators to express concern - at times it's full-blown opposition - about government expansion. The obscure and curious tale of LB 361 is that no one paid much attention.



Jim Cunningham is executive director of the Nebraska Catholic Conference, with headquarters in Lincoln. Contact him at jrcncc@neb.rr.com.

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