A discourse-theoretic approach to negotiated rulemaking

In 1996 and in 1997, Congress ordered the Secretary of Health and Human Services to undertake a process of negotiated rulemaking, which is authorized under the Negotiated Rulemaking Act of 1990, on three separate rulemaking matters. Other Federal agencies, including the Environmental Protection Agency and the Occupational Health and Safety Administration, have also made use of this procedure. As part of the program to reinvent government, President Clinton has issued an executive order requiring federal agencies to engage in some negotiated rulemaking procedures. I present an analytic, interpretative and critical approach to looking at the statutory and regulatory provisions for negotiated rulemaking as related to issues of democratic governance surrounding the problem of delegation of legislative power. The paradigm of law delineated by Jürgen Habermas, which sets law the task of achieving social or value integration as well as integration of systems, provides the background theory for a critique of such processes. My research questions are two. First, why should a citizen obey a regulation which is the result of negotiation by directly interested parties? Second, what is the potential effect of negotiated rulemaking on other institutions for deliberative democracy? For the internal critique I argue that the procedures for negotiated rulemaking will not produce among the participants the agreement and cooperation which is the legislative intent. For the external critique I argue that negotiated rulemaking will not result in democratically-legitimated regulation. In addition, the practice of negotiated rulemaking will further weaken the functioning of the public sphere, as Habermas theorizes it, as the central institution of deliberative democracy. The primary implication is the need to mitigate further development of administrative agencies as isolated, self-regulating systems, which have been loosened from the controls of democratic governance, through the development of a robust public sphere in which affected persons may achieve mutual understanding. ^

Critical indicators associated with negative performance in a selectively manned unit

Introduction. Selectively manned units have a long, international history, both military and civilian. Some examples include SWAT teams, firefighters, the FBI, the DEA, the CIA, and military Special Operations. These special duty operators are individuals who perform a highly skilled and dangerous job in a unique environment. A significant amount of money is spent by the Department of Defense (DoD) and other federal agencies to recruit, select, train, equip and support these operators. When a critical incident or significant life event occurs, that jeopardizes an operator's performance; there can be heavy losses in terms of training, time, money, and potentially, lives. In order to limit the number of critical incidents, selection processes have been developed over time to “select out” those individuals most likely to perform below desired performance standards under pressure or stress and to "select in" those with the "right stuff". This study is part of a larger program evaluation to assess markers that identify whether a person will fail under the stresses in a selectively manned unit. The primary question of the study is whether there are indicators in the selection process that signify potential negative performance at a later date. ^ Methods. The population being studied included applicants to a selectively manned DoD organization between 1993 and 2001 as part of a unit assessment and selection process (A&S). Approximately 1900 A&S records were included in the analysis. Over this nine year period, seventy-two individuals were determined to have had a critical incident. A critical incident can come in the form of problems with the law, personal, behavioral or family problems, integrity issues, and skills deficit. Of the seventy-two individuals, fifty-four of these had full assessment data and subsequent supervisor performance ratings which assessed how an individual performed while on the job. This group was compared across a variety of variables including demographics and psychometric testing with a group of 178 individuals who did not have a critical incident and had been determined to be good performers with positive ratings by their supervisors.^ Results. In approximately 2004, an online pre-screen survey was developed in the hopes of preselecting out those individuals with items that would potentially make them ineligible for selection to this organization. This survey has aided the organization to increase its selection rates and save resources in the process. (Patterson, Howard Smith, & Fisher, Unit Assessment and Selection Project, 2008) When the same prescreen was used on the critical incident individuals, it was found that over 60% of the individuals would have been flagged as unacceptable. This would have saved the organization valuable resources and heartache.^ There were some subtle demographic differences between the two groups (i.e. those with critical incidents were almost twice as likely to be divorced compared with the positive performers). Upon comparison of Psychometric testing several items were noted to be different. The two groups were similar when their IQ levels were compared using the Multidimensional Aptitude Battery (MAB). When looking at the Minnesota Multiphasic Personality Inventory (MMPI), there appeared to be a difference on the MMPI Social Introversion; the Critical Incidence group scored somewhat higher. When analysis was done, the number of MMPI Critical Items between the two groups was similar as well. When scores on the NEO Personality Inventory (NEO) were compared, the critical incident individuals tended to score higher on Openness and on its subscales (Ideas, Actions, and Feelings). There was a positive correlation between Total Neuroticism T Score and number of MMPI critical items.^ Conclusions. This study shows that the current pre-screening process is working and would have saved the organization significant resources. ^ If one was to develop a profile of a candidate who potentially could suffer a critical incident and subsequently jeopardize the unit, mission and the safety of the public they would look like the following: either divorced or never married, score high on the MMPI in Social Introversion, score low on MMPI with an "excessive" amount of MMPI critical items; and finally scores high on the NEO Openness and subscales Ideas, Feelings, and Actions.^ Based on the results gleaned from the analysis in this study there seems to be several factors, within psychometric testing, that when taken together, will aid the evaluators in selecting only the highest quality operators in order to save resources and to help protect the public from unfortunate critical incidents which may adversely affect our health and safety.^

Factors influencing hurricane evacuation among Hispanic population

The recent hurricanes of Katrina, Rita, and Dolly have brought to light the precarious situation populations place themselves in when they are unprepared to face a storm, or do not follow official orders to evacuate when a destructive hurricane is poised to hit the area. Three counties in southern Texas lie within 60 miles of the Gulf of Mexico, and along the Mexican border. Determining the barriers to hurricane evacuation in this distinct and highly impoverished area of the United States would help aid local, state, and federal agencies to respond more effectively to persons living here.^ The aim of this study was to examine intention to comply with mandatory hurricane evacuation orders among persons living in three counties in South Texas by gender, income, education, acculturation and county of residence. A questionnaire was administered to 3,088 households across the three counties using a two-stage cluster sampling strategy, stratified by all three counties. The door-to-door survey was a 73-item instrument that included demographics, reasons for and against evacuation, and preparedness for a hurricane. Weighted data were used for the analyses.^ Chi-square tests were run to determine whether differences between observed and expected frequencies were statistically significant. A logistic regression model was developed based on that univariate analysis. Results from the logistic regression estimated odds ratios and their 95 percent confidence intervals for the independent variables.^ Logistic regression results indicate that females were less likely than men to follow an evacuation order. Having a higher education meant more likelihood of evacuating. Those respondents with a higher affiliation with Spanish than English were more likely to follow the evacuation orders. Hidalgo County residents were less likely to evacuate than Cameron or Willacy Counties' residents. Local officials need to implement communication efforts specifically tailored for females, residents with less of an affiliation with Spanish, and Hidalgo County residents to ensure their successful evacuation prior to a strong hurricane's landfall.^

Runaway and Throwaway Youth: Time for Policy Changes and Public Responsibility

The traditional American dream of owning a home, obtaining a college education, and working at a good, paying job is only that, a dream, for scores of homeless youth in America today. There is a growing street population of young people who have been thrown out of their homes by their caretakers or their families, and who face life-threatening situations each day. For these youth, the furthest thing in their lives is reaching the so-called “American Dream;” and their most immediate need is survival, simply living out the day in front of them. They have few options that lead to a decent and safe living environment. Their age, lack of work experience, and absence of a high school diploma make it most difficult to find a job. As a result, they turn to other means for survival; runaways and throwaways are most vulnerable to falling prey to the sex trade, selling drugs, or being lured into human trafficking, and some steal or panhandle. Street youth end up spending their nights in bus stations or finding a room in an abandoned building or an empty stairwell to sleep. Attempting to identify a specific number of homeless youth is difficult at best, but what is even more perplexing is our continued inability to effectively protect our children. We are left with a basic question framed by the fundamental tenets of justice: what is a community’s responsibility to its youth who, for whatever reason, end up living on the streets or in unsafe, abusive environments? The purpose of this paper is to briefly outline the characteristics of homeless youth, in particular differentiating between throwaways and runaways; explore the current federal response to homeless youth; and finally, address the nagging question that swirls around all children: can we aggressively aspire to be a community where every child is healthy and safe, and able to realize his or her fullest potential?

Specialized managed care for children with cystic fibrosis: Resource use patterns and rate design for a high cost Medicaid population

Objective. This research study had two goals: (1) to describe resource consumption patterns for Medi-Cal children with cystic fibrosis, and (2) to explore the feasibility from a rate design perspective of developing specialized managed care plans for such a special needs population.^ Background. Children with special health care needs (CSHN) comprise about 2% of the California Medicaid pediatric population. CSHN have rare but serious health problems, such as cystic fibrosis. Medicaid programs, including Medi-Cal, are enrolling more and more beneficiaries in managed care to control costs. CSHN, however, do not fit the wellness model underlying most managed care plans. Child health advocates believe that both efficiency and quality will suffer if CSHN are removed from regionalized special care centers and scattered among general purpose plans. They believe that CSHN should be "carved out" from enrollment in general plans. One alternative is the Specialized Managed Care Plan, tailored for CSHN.^ Methods. The study population consisted of children under age 21 with CF who were eligible for Medi-Cal and California Children's Services program (CCS) during 1991. Health Care Financing Administration (HCFA) Medicaid Tape-to-Tape data were analyzed as part of a California Children's Hospital Association (CCHA) project.^ Results. Mean Medi-Cal expenditures per month enrolled were $2,302 for 457 CF children, compared to about \$1,270 for all 47,000 CCS special needs children and roughly $60 for almost 2.6 million ``regular needs'' children. For CF children, inpatient care (80\%) and outpatient drugs (9\%) were the major cost drivers, with {\it all\/} outpatient visits comprising only 2\% of expenditures. About one-third of CF children were eligible due to AFDC (Aid to Families with Dependent Children). Age group explained about 17\% of all expenditure variation. Regression analysis was used to select the best capitation rate structure (rate cells by age and eligibility group). Sensitivity analysis estimated moderate financial risk for a statewide plan (360 enrollees), but severe risk for single county implementation due to small numbers of children.^ Conclusions. Study results support the carve out of CSHN due to unique expenditure patterns. The Specialized Managed Care Plan concept appears feasible from a rate design perspective given sufficient enrollees. ^

Physician attitudes on the HPV vaccine

The quadrivalent HPV vaccine was developed primarily for the prevention of cervical cancer. The vaccine, originally approved for females, was recently approved by the American Committee for Immunization Practices to be administered to males, allowing federal programs to pay for the vaccination for both males and females. However, uptake for this vaccination has been low. Studies show that physicians have great influence over whether or not parents decide to vaccinate their children. In this study, a survey was mailed out asking physicians about their attitude towards the HPV vaccination and what they believed to be the barriers to the vaccination of their patients. The analysis of the data included descriptive statistics and chi-square analysis in order to compare the differences in responses between male and female patients. The vast majority of physicians supported the vaccination of both females and males. However, the perceived barriers to vaccinating females differed from males, with physicians believing that parents' concern about sexual promiscuity was a greater barrier to vaccination in girls than boys (p=0.007). The other major significant difference in perceived barriers among physicians is the belief that physicians in general are less likely to promote the vaccination in males compared to females (p=0.01). Despite evidence to the contrary, it seems more patient education is needed regarding sexual promiscuity and its association with the HPV vaccine. There may also be a need for increased physician education regarding the use of the HPV vaccine for male patients.^